author: WIEAND, Judge:

text:
    516 A.2d 17
    Peter HAVAS, Appellee, v. TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION and the Board of Trustees of Temple University, Appellants. Peter HAVAS, Appellant, v. TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION and the Board of Trustees of Temple University, Appellees.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed Sept. 3, 1986.
    Reargument Denied Oct. 20, 1986.

      Stephen Bosch, Philadelphia, for appellants (at 2000) and for appellees (at 2172).
    David H. Moskowitz, Langhorne, for appellant (at 2172) and for appellee (at 2000).
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

Where there is neither agreement nor promise by an employer to approve an employee’s application for early retirement, may the employer nevertheless be estopped to deny such approval? Our review of the record discloses in this case no basis for an estoppel; and, therefore, we reverse the judgment of the trial court which awarded damages to the employee whose application for voluntary early retirement was disapproved by his employer.

Dr. Peter Havas, a tenured professor of physics at Temple University, had notified his employer that he intended to retire, pursuant to an existing early retirement plan (ERP), on July 1, 1981. On April 3, 1980, the University announced that the trustees and administrators of the University and the American Association of University Professors, a collective bargaining agent for the faculty, had reached agreement on a new voluntary early retirement plan (VERP). When Havas learned of this new plan, he submitted an application for retirement pursuant thereto, effective January 1, 1981. In reliance upon anticipated approval, Dr. Havas made several commitments for research and professional appearances during the six month period following his contemplated retirement. In November of 1980, his application for voluntary early retirement on January 1, 1981 was disapproved. As a result, Dr. Havas’ retirement could not become effective until July 1, 1981. In order to keep his professional commitments, he took a leave of absence, without pay, from January 1, 1981 to June 30, 1981.

On April 6, 1982, Havas commenced an action against Temple University for damages. On November 3, 1982, the trial court sustained preliminary objections in the nature of a demurrer to the complaint but granted leave to Dr. Havas to file an amended complaint. An amended complaint was filed on December 6, 1982, and again the University filed preliminary objections in the nature of a demurrer. These preliminary objections were sustained, and judgment was entered in favor of the University on July 22, 1983. On appeal to the Superior Court, a panel of this Court entered a per curiam order reversing and remanding, 339 Pa.Super. 624, 488 A.2d 1169. In a memorandum opinion, the panel recorded its agreement with the trial court that Havas had failed to state a cause of action for breach of contract. Havas knew, the Court observed, that approval by the University was necessary before he could be accepted into VERP. Because such approval was a condition precedent and because approval had not been obtained, the panel said, there was no agreement that Havas would be permitted to retire on January 1, 1981. The panel reversed and remanded, however, because the trial court had failed to address a separate count in the complaint alleging a cause of action based upon estoppel. Although reversing and remanding for further proceedings on this count of the complaint, the Court cautioned:

Whether appellant can provide proof of the facts of his cause and of his damages remains for the scrutiny of the court when it considers a motion for summary judgment and/or at the conclusion of the trial of the case.

Upon remand, the action was tried nonjury and resulted in a “Decree Nisi” awarding damages to Dr. Havas in the amount of $53,100.61. The trial court expressly found that “there was no promise and no contract” but allowed recovery on the “ethical principle” of estoppel. (Trial Court Opinion at p. 7). Post-trial motions filed by both parties were dismissed, and judgment was entered on the verdict. Both parties have appealed.

An estoppel requires the presence of two essential elements. The first is an inducement to act. The second is a justifiable reliance upon that inducement. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 436, 457 A.2d 502, 503 (1983). See also: Restatement (Second) of Contracts § 90. An “inducement” sufficient to create an estoppel may consist of words or conduct which intentionally or negligently causes another to believe that a promise has been made or that a particular state of facts exists. See: Straup v. Times Herald, 283 Pa.Super. 58, 71, 423 A.2d 713, 720 (1980). See also: Novelty Knitting Mills, Inc. v. Siskind, supra. In the instant case, the record discloses that neither inducement by Temple University nor justifiable reliance by Dr. Havas was present. In short, there was neither representation by the University nor a reasonable belief by Dr. Havas that his application for VERP would escape the contractual requirement that it be submitted for approval or disapproval by the University according to concerns and considerations enumerated in the written agreement.

The written agreement between Temple University and the American Association of University Professors, acting as agent for the members of the faculty, made the VERP plan available to members of the faculty who had attained their sixtieth birthday and had completed a minimum of ten years of service to the University. However, the agreement also provided in clear terms that an application for VERP was subject to approval by the Vice President and Dean of Faculties and also by the President of the University. Approval was to be granted or withheld according to the needs of the University. The introductory paragraphs of the agreement were as follows:

Temple University has developed a new Voluntary Early Retirement Plan. This program, participation in which by faculty is voluntary, is intended to provide flexibility in academic planning, to produce educational benefits, and to reduce the costs of instruction necessitated by the changing needs of the University.
The Voluntary Early Retirement Plan offers benefits only for certain tenured faculty who wish to terminate voluntarily their active professional relationship with the University before the normal retirement date and only in academic units where the retirement will result in a reduction in instructional costs especially through the non replacement of the retiree.

The intent of the agreement was set forth with even greater particularity in paragraph 4, where it was established specifically as follows:

4. An application for voluntary early retirement must be recommended, and the recommendation justified, by the department chairperson and dean, and must be accompanied by a written statement from the dean explaining how the early retirement will result in educational benefits and net savings for the University over the life of the early retirement period. An application requires the approval of the Vice President and Dean of Faculties before submission to the President for final approval or disapproval. The President’s decision shall not be subject to the grievance and arbitration procedures of the Temple— AAUP contract.

The provisions of this agreement, therefore, made it eminently clear that acceptance into VERP was conditional upon approval by the Vice President, Dean, and President of the University. This approval, in turn, was dependent upon whether early retirement would “result in educational benefits and net savings for the University,” and not simply upon an applicant’s ability to satisfy objective criteria for eligibility. Dr. Havas, although able to meet the objective standards for VERP, did not receive the necessary approval from the administration.

It is of no avail to Dr. Havas that he did not actually read the provisions of the plan before submitting his VERP application. He cannot legally deny knowledge of the requirements for acceptance into VERP, the terms of which were negotiated and approved by the bargaining agent acting on behalf of the faculty. It would indeed be inequitable to allow Dr. Havas to raise an estoppel by his own carelessness in failing to read and become aware of the terms and conditions for acceptance into VERP. The terms of the plan, to which he was a party via his agent, were clear; there was no suggestion whatsoever that acceptance into VERP would be automatic.

Moreover, the evidence in this case does not establish that Temple University ever misled Dr. Havas about the need for approval of his application for VERP. Similarly, there is no evidence that any misrepresentation was at any time made to him by the administration that his application for VERP would be approved and would go into effect on January 1, 1981. Even Dr. Havas has conceded that no such representation was made to him. Although two of his colleagues had assured him that they would recommend approval of his application, Dr. Havas has admitted that no official of the University ever promised or guaranteed that he would be accepted into VERP at the time of and in accordance with his application. Even the VERP application itself was devoid of assurance that an applicant who satisfied the objective criteria for admission into VERP would receive automatic and immediate approval. On the contrary, paragraph nine of the application indicated that it would have to be “approved by the University administration.” In short, a review of the record discloses a total absence of evidentiary support for the trial court’s conclusion “that appellee established the existence of a course of conduct or representations justifying his reasonable expectation that he would be approved for VERP.”

The evidence also discloses that Dr. Havas did not believe that his acceptance into VERP would be automatic. His application was filed on June 25, 1980 and contained a request for early retirement on January 1, 1981. It was disapproved on November 18, 1980. During the interval in which it was pending, Dr. Havas repeatedly called the office of the Vice President of the University to determine whether his application would be approved. Moreover, as has already been observed, Dr. Havas admitted that he knew, at the time of submitting his application, that it would have to be approved by the administration before he could be accepted into VERP. There is no evidence that any additional representation was made at any time by the University after the application had been submitted. Therefore, Dr. Havas could not reasonably have believed that his application would receive automatic approval. This is further supported by knowledge which he acquired during the waiting period that his application was being reviewed by Temple’s lawyers because of certain legal questions.

The evidence in this case demonstrates unequivocally that Dr. Havas’ alleged expectation of VERP approval and his acceptance of job opportunities for the period between January and June, 1981 had not been based upon assurances or representations made by University officials that he could retire early. As we have already observed, the trial court expressly found that no promises of approval had been given. Dr. Havas’ acts taken in reliance upon an anticipated approval of his VERP application, therefore, were premised upon a self-engendered assumption that satisfying the plan’s objective criteria would result in routine and automatic approval. The law is clear, however, that there can be no estoppel where a complainant’s act or forbearance is caused by his own mistaken judgment. Blofsen v. Cutaiar, 460 Pa. 411, 418, 333 A.2d 841, 844 (1975); Tallarico Estate, 425 Pa. 280, 288, 228 A.2d 736, 741 (1967); Northwestern National Bank v. Commonwealth, 345 Pa. 192, 197, 27 A.2d 20, 23 (1942).

In Novelty Knitting Mills, Inc. v. Siskind, supra, the parties had engaged in a course of business wherein the defendant would design and order sweaters which the plaintiff would manufacture. On one occasion, the defendant-designer requested and received permission to store five tons of its yarn at the plaintiff-manufacturer’s factory. However, the defendant gave no promise—oral, written, or implied by course of conduct—that an order for the manufacture of sweaters was forthcoming. When the defendant-designer removed the yarn for manufacture at another plant, the plaintiff-manufacturer brought suit against the defendant under a theory of equitable estoppel. The plaintiff-manufacturer contended that by removing the yam to another manufacturer, the defendant had breached the plaintiffs legitimate expectation that an order to process the yarn into sweaters would be submitted to the plaintiff. The trial court held, and the Superior Court agreed, that the plaintiff-manufacturer had failed to establish an estoppel. The Supreme Court affirmed, holding that nothing in the record justified the plaintiff-manufacturer’s expectation that the defendant would place an order for the production of sweaters from the five tons of yarn stored at plaintiff’s factory. Id. 500 Pa. at 436-437, 457 A.2d at 504. The Supreme Court observed that the plaintiff-manufacturer's president had admitted that such an order was only a “possibility” and that no agreement had been reached regarding the future processing of the yarn into sweaters. Id., 500 Pa. at 437, 457 A.2d at 504. “The flexibility of the doctrine of equitable estoppel,” the Court opined, “does not allow it to be imposed where the essential elements of inducement and reliance are supported solely by speculation.” Id., 500 Pa. at 438, 457 A.2d at 505.

So in the instant case, an estoppel against Temple University cannot be supported by Dr. Havas’ unjustified speculation that his VERP application would be approved. In the absence of evidence to support the creation of an estoppel, the trial court erred when it awarded Dr. Havas damages because the disapproval of his VERP application required that he retire on the date which he had selected under the prior retirement plan.

In a cross-appeal by Dr. Havas, he has questioned the measure of damages employed by the trial court. However, our view of the case has made it unnecessary to consider the damage issue.

The judgment is reversed and is now entered in favor of Temple University.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    516 A.2d 21
    Karen STEADMAN, Appellant v. Alonzo TURNER.
    Superior Court of Pennsylvania.
    Argued June 4, 1986.
    Filed Sept. 3, 1986.
    Reargument Denied Oct. 24, 1986.

      Burton L. Fish, Erie, for appellant.
    David M. Neil, North East, for appellee.
    Before ROWLEY, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This appeal, in an action for divorce, is taken from the decree of the court that a valid marriage did not exist between the parties. Appellant contends that a valid common law marriage existed between the parties thereby entitling her to equitable distribution of marital assets under the Pennsylvania Divorce Code (“Divorce Code”) in an action for divorce or, in the alternative, under the principles of annulment of marriage. We agree with the court below that a marriage did not exist and that appellant is not entitled to the relief requested.

The scope of review to be applied by this court was set forth in Stauffer Estate, 372 Pa. 537, 542, 94 A.2d 726, 729 (1953): “[Findings of fact, [that a common law marriage had taken place], approved by the court en banc, will not be disturbed on appeal except for clear error.” As the reviewing court, we are bound to scrutinize all the evidence, but if there is sufficient evidence to support the factual findings of the court below, such findings shall not be disturbed. Commonwealth v. Pilla, 189 Pa.Superior Ct. 302, 150 A.2d 365 (1959).

The facts of this case as presented to the Domestic Relations Master and affirmed by the lower court are as follows. The parties to this action, although already married to third parties, began living together in 1979. At that time both parties were aware of the marital status of the other. Appellee was granted a divorce in 1980, and in 1982 a child was born to the parties. Appellant was divorced in 1983, and thereafter said to appellee, “We can get married now”. Appellee answered that he did not want to get married. Appellant claims her statement referred only to a formal marriage ceremony and that she believed that she and appellee were already married under common law. In support of this assertion, appellant offers newspaper reports of the birth of their child in which appellee referred to appellant as his wife, and other evidence that appellee generally represented in the community that appellant was his wife. Appellee affirmatively denies the existence of a marriage.

Common law marriage is still valid in Pennsylvania. DeMedio v. DeMedio, 215 Pa.Superior Ct. 255, 257 A.2d 290 (1969); Buradus v. Gen. Cement Prod. Co., 159 Pa.Superior Ct. 501, 502, 48 A.2d 883 (1946). An essential element for a common law marriage is intent to establish a marital relationship. Evidence of intent may consist of words uttered in the present tense with a view and for the purpose of establishing the relation of husband and wife. Stauffer Estate, supra; Gower Estate, 445 Pa. 554, 284 A.2d 742 (1971); Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979). Although the use of verba de prasenti in entering into a marriage contract is not essential, In re Estate of Stauffer, 504 Pa. 626, 476 A.2d 354 (1984), cohabitation and reputation of marriage do not create a marriage, but are only mere circumstances from which a marriage may be presumed and rebutted by other facts and circumstances. Pierce v. Pierce, 355 Pa. 175, 49 A.2d 346 (1946); Wagner’s Estate, 398 Pa. 531, 159 A.2d 495 (1960). Furthermore, where a relationship is meretricious in its inception, there must be clear evidence of change in status to rebut the presumption that the non-marriage continued after the impediment to marriage was removed. Pierce v. Pierce, supra; Stauffer Estate, supra; In re Estate of Garges, 474 Pa. 237, 378 A.2d 307 (1977).

In the instant case, an impediment to marriage existed when the relationship between the parties began. Because both parties knew about the impediment, their relationship was meretricious. Pierce v. Pierce, supra; In re Estate of Garges, supra; Dowd v. Dowd, 275 Pa.Superior Ct. 472, 418 A.2d 1387 (1980). The existence of the impediment to marriage rendered appellant’s evidence of cohabitation and reputation of marriage which occurred before removal of the impediment (when appellant’s divorce was granted in 1983) incapable of raising a presumption of marriage. Appellant’s evidence of cohabitation and reputation of marriage which occurred after removal of the impediment is equally unavailing to rebut the presumption that the non-marriage continued. For the court to find that the parties entered into a valid marriage contract there must be clear evidence of an intent to enter into a marriage after appellant was granted her divorce. However, the only-evidence is that of appellee’s affirmative denial of an intent to marry made shortly after the impediment was removed. Finally, although there is a presumption of marriage when the legitimacy of a child is involved, the presumption does not arise where legitimacy is impossible because an impediment to marriage exists at the time of the child’s birth. Thus, appellant’s claim that a common law marriage existed must fail.

Appellant’s alternative claim that equitable distribution is available under section 203 of the Divorce Code in an action for annulment is also without merit. 23 P.S. § 203. Annulments are available for void and voidable marriages. Thus, there must still be a finding that a marriage existed for a relationship to be dissolved by annulment and, for the above stated reasons, appellant has failed to prove the existence of a marriage. Appellant’s reference to the terms in the statute “supposed or alleged marriage” does not bring her meretricious relationship within the scope of annulment.

Order affirmed.

      . Act of April 2, 1980, P.L. 63, No. 26; 23 P.S. §§ 101-1015.


text:
    516 A.2d 24
    COMMONWEALTH of Pennsylvania v. Harold MEASE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 28, 1986.
    Filed Sept. 12, 1986.
    Reargument Denied Oct. 24, 1986.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   WIEAND, Judge:

Harold Mease was tried by a jury which found him guilty of murder in the second degree, kidnapping, unlawful restraint, aggravated assault, recklessly endangering another person, criminal conspiracy and related offenses arising from a bizarre act of vengeance wreaked upon a person believed to have raped Mease’s girl friend six years before. Following denial of post-verdict motions, the trial court imposed sentence. In addition to a life sentence for murder in the second degree, Mease was given consecutive sentences of imprisonment for not less than seven years nor more than fifteen years. On direct appeal, Mease contends (1) that the evidence was insufficient to prove kidnapping and murder of the second degree; (2) that trial counsel rendered ineffective assistance; and (3) that the sentencing court exceeded the recommended sentence without reason when it imposed sentences consecutive to imprisonment for life. There is no merit in these contentions; and, therefore, we affirm the judgment of sentence.

I. SUFFICIENCY OF THE EVIDENCE

Kidnapping is defined at 18 Pa.C.S. § 2901 as follows:

(a) A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place he is found, or if he unlawfully confines another for a substantial period in a place of isolation ...
(b) ... A removal or confinement is unlawful within the meaning of this section if it is accomplished by force, threat, or deception____

“In reviewing the sufficiency of the evidence, we view the' evidence presented and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Campbell, 353 Pa.Super. 178, 181, 509 A.2d 394, 395 (1986). See: Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983); Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984).

While seated in a bar at or about 7:30 a.m. on April 2, 1983, the discussion between appellant and Michael McDonald turned to the unreported rape of appellant’s girl friend six years earlier. Appellant requested McDonald to pick up Casmir Stalczynski, who was believed to be one of the rapists, so that appellant could “beat the hell” out of him. McDonald and his brother proceeded in appellant’s car to Stalczynski’s home, where they induced him on the pretext of a purported drug purchase to return with them to the bar where appellant was drinking. Upon arrival at the bar, appellant entered the rear seat of the automobile where he began to berate loudly and beat Stalczynski. Appellant then instructed McDonald to drive to appellant’s home, and McDonald complied. Stalczynski was blindfolded and forced to lie on the floor of the car, and appellant, to scare his captive, withdrew a pistol, loaded it, and fired a shot into the floor. At the home of appellant, Stalczynski was taken into the basement and ordered to undress. For a period of several hours thereafter, appellant proceeded to punch, kick, slap, beat and scream at his victim. Appellant also stabbed him twice with a bayonnet. During the course of the day, the McDonald brothers left the basement, and other persons also came and went. Finally, when appellant was alone with Stalczynski, he grabbed his victim by the hair, forced him to stand up, tied his hands and shot him in the back of the head. At trial, appellant contended that the gun had discharged accidentally while he was “pistolwhipping” Stalczynski. In any event, the victim was removed from the basement and placed under a bridge. When found at or about 3:00 p.m., Stalczynski was naked, blindfolded, unconscious, bleeding, and his hands were tied. He died three days later without regaining consciousness.

Appellant argues that the evidence failed to show that the victim was unlawfully removed by “force, threat or deception” or that he was confined in a place of isolation. We reject this frivolous argument. In the first place, there was ample evidence that the victim had been removed to Mease’s home both by force and by the threat of force. Moreover, the requirement that the victim be confined in a “place of isolation” did not require that he be left alone. The concept “is not geographical location but rather effective isolation from the usual protections of society.” Model Penal Code § 212.1, comment 3. In the instant case, Stalczynski was confined in the basement of appellant’s home where discovery and rescue were unlikely. This was a “place of isolation” within the meaning of the statute. The fact that friends of appellant were present from time to time did not negate the victim’s isolation from the usual protections of society.

Appellant also argues that the evidence failed to show that the killing was “in furtherance” of the kidnapping. However, the provisions of 18 Pa.C.S. § 2502(b), which define murder of the second degree, require only that the criminal homicide be committed while “defendant was engaged as a principal ... in the perpetration of a felony.” The killing of Stalczynski while he was being confined in a place of isolation, and thus during a kidnapping, cannot seriously be questioned. Appellant’s reliance upon Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980), is misplaced. There the issue was accomplice liability for a killing committed during the perpetration of a burglary. The Supreme Court held that the accomplice, who had not fired the fatal bullet, was entitled to a jury instruction that to be found guilty of murder of the second degree there would have to be proof “of a conspiratorial design by the slayer and the others to commit the underlying felony and of an act by the slayer causing death which was in furtherance of the felony.” Id., 491 Pa. at 95, 418 A.2d at 317 (emphasis in original) (footnote omitted). In the instant case, Mease was the slayer and not merely an accomplice, and it was enough that the evidence showed that he had killed his victim while engaged in committing the crime of kidnapping.

II. INEFFECTIVENESS OF COUNSEL

When examining a claim of alleged ineffectiveness, a reviewing court will determine whether the issue underlying the charge of ineffectiveness was of arguable merit and whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Beuhl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). Moreover, “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance.” Id., 510 Pa. at 379, 508 A.2d at 1175, quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696 (1984), reh. den., 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). See also: Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Appellant’s present counsel is not the same counsel who represented appellant during trial or at the post-verdict motions hearing. On this direct appeal from the judgment of sentence, Mease has raised several ineffectiveness claims which are different than those which were argued at the post-verdict motions hearing. There has been no evidentiary hearing with respect to these new contentions. Nevertheless, “where it is clear that allegations of ineffectiveness of counsel are baseless or meritless, then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984). After reviewing the ineffectiveness of counsel averments in this case, we conclude that a further evidentiary hearing is unnecessary; appellant’s contentions are devoid of merit. See: Commonwealth v. Blagman, 350 Pa.Super. 367, 370, 504 A.2d 883, 885 (1986).

Appellant contends that counsel’s stewardship must be found wanting because he directed his efforts toward proving an accidental killing and in the process failed to address adequately the lesser charges for which appellant was being tried. This argument lacks merit. The trial strategy adopted by defense counsel was reasonably calculated to serve the best interests of his client. We will not, in hindsight, explore alternative courses of action which might have been available to counsel.

Appellant also suggests that counsel was ineffective for failing to request a voluntary manslaughter instruction to be applied by the jury if it found that the killing had been committed in the heat of passion. There is no arguable merit in this contention. In the first place, the rape of appellant’s girl friend six years before was too remote to support a finding that appellant had killed in the heat of passion caused by legally adequate provocation. Secondly, the killing in this case was committed, as the jury found, during the course of a kidnapping; and, therefore, the degree of guilt could not properly have been reduced even if the killing had occurred during passion. Appellant was not prejudiced by the failure of counsel to request a “heat of passion” instruction.

The charge of ineffectiveness on grounds that counsel failed to request an instruction telling the jury that it would be a defense to a charge of kidnapping that the alleged victim had consented to his removal and isolation is equally lacking in merit. The matter of the victim’s alleged consent was adequately covered in the trial court’s jury instructions. Similarly, the trial court adequately covered the degrees of homicide which the jury was required to consider. Counsel was not ineffective for failing to request additional instructions.

“[A] trial judge has wide latitude in charging the jury, and may use any particular language provided the language used adequately and fully conveys to the jury the law applicable to the facts of the case.” Kearns v. Clark, 343 Pa.Super. 30, 37, 493 A.2d 1358, 1361 (1985), quoting Fish v. Gosnell, 316 Pa.Super. 565, 580, 463 A.2d 1042, 1050 (1983). Where the charge to the jury adequately states the law and creates no likelihood of confusion, counsel will not be deemed ineffective for failing to make objections thereto. Commonwealth v. Rawles, 501 Pa. 514, 524, 462 A.2d 619, 624 (1983); Commonwealth v. Blagman, supra, 350 Pa.Superior Ct. at 372, 504 A.2d at 886; Commonwealth v. Davis, 331 Pa.Super. 285, 301, 480 A.2d 1035, 1043 (1984). In response to appellant’s averments that trial counsel was ineffective for failing to object to the trial court’s jury instructions regarding kidnapping and murder of the second degree, we have examined carefully the court’s instructions. When they are viewed in their entirety and the overall effect is considered, it cannot be said that counsel was ineffective for failing to object or request alternative instructions.

Appellant next complains that he was prejudiced unfairly because trial counsel failed to object to the following portion of the prosecuting attorney’s closing argument:

Mr. McDougall says to you “Put yourselves or one of your loved ones in the position of Denise Bortz or Denise Mease [alleged rape victim].” I would respectfully say to you: Put yourself in the position of Casmir Stalczynski. Imagine yourself in the basement of someone who is pounding and hitting you, who has a dagger with brass knuckles, a gun, and who is a fighter—a brawler—215 pounds at the time. Imagine you are only 140, 150 pounds at the most. You are absolutely no physical match for this man. He has made you strip naked and you are in his basement and he is screaming at you. He is from time to time kicking you and punching you. Put yourself in his position. Imagine the terror. Imagine what was going through his mind in a situation like that.

(N.T. at 278-279).

“[A]llegedly improper comments must be read in their full context, including the defense closing. We may thus determine if the comments were made in fair response to defense argument.” Commonwealth v. Brown, 490 Pa. 560, 566, 417 A.2d 181, 184 (1980). See: Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Stolzfus, 462 Pa. 43, 337 A.2d 873 (1975). The comments by the prosecutor in the case sub judice were made in response to a defense argument that the jury should put itself in the position of appellant’s girl friend. The prosecuting attorney suggested to the jury, that it put itself in the shoes of the beaten victim of appellant’s crimes. The District Attorney’s argument, even if technically improper, must be considered in light of the defense closing. When this is done, it cannot be said that the prosecuting attorney’s remarks impaired the fundamental fairness of the trial or prejudiced the jurors by “forming in their minds [a] fixed bias [or] hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See: Commonwealth v. Stolzfus, supra. See also: Darden v. Wainwright, — U.S. —, —, 106 S.Ct. 2464, 2467, 91 L.Ed.2d 144, 150 (1986). Since the prosecuting attorney did not exceed the scope of the response permitted to defense argument, defense counsel will not be deemed ineffective for failing to object.

Finally, it is now clear beyond peradventure that counsel was not ineffective for failing to make a useless objection to the “death qualification” of the jury where, as here, the jury did not impose a sentence of death. See: Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Commonwealth v. Roach, 444 Pa. 368, 282 A.2d 382 (1971); Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971).

III. SENTENCING

The sentencing issue, i.e., that sentences consecutive to a sentence of life imprisonment deviated from the sentencing guidelines, was not raised during the sentencing hearing or in the motion to reconsider the sentence. This issue, therefore, has been waived. See: Commonwealth v. Warden, 335 Pa.Super. 315, 484 A.2d 151 (1984); Commonwealth v. Richards, 317 Pa.Super. 212, 463 A.2d 1161 (1983).

The judgment of sentence is affirmed.

      . Compare: Commonwealth v. Hook, 355 Pa.Super. 10, 512 A.2d 718 (1986).


author: ROWLEY, Judge:

text:
    516 A.2d 29
    Charles A. ROSS, Appellant, v. MONTOUR RAILROAD CO. and Pittsburgh Lake Erie Railroad.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Sept. 8, 1986.
    Reargument Denied Oct. 24, 1986.

      Charles W. Robinson, Pittsburgh, for appellant.
    Richard D. Klaber, Pittsburgh, for appellees.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order refusing to take off a compulsory non-suit entered at the close of appellant’s case before the jury.

On April 27,1983, appellant filed a complaint in assumpsit and trespass against appellees, Pittsburgh and Lake Erie Railroad (P&LE) and Montour Railroad, a subsidiary of P & LE, alleging breach of an employment contract and wrongful discharge from employment. At the conclusion of appellant’s case on liability at trial, the court granted appellee’s Motion for a compulsory Non-Suit. Appellant’s Motion to Remove Compulsory Non-Suit and Grant a New Trial was denied.

The factual background of this case is as follows. Appellant worked for Montour for a total of 22 years, during which time he was admittedly a productive and competent employee. Appellant was successively promoted, having started as a mechanic, and eventually rising to assistant superintendent in 1981. Unfortunately for appellant, business began to steadily decline, resulting in a massive employee reduction. In February of 1983 appellant was furloughed as assistant superintendent and bumped back into a union position as a machinist-welder. Appellant’s employment with Montour ended in September of 1984 when he walked off the job and did not return.

The controversy in this case concerns events which commenced in December of 1980, when appellant, then Train-master-General Foreman of Montour, had a meeting with T.C. Netherton, President of Montour and Vice-President of P & LE. At that meeting, Netherton informed appellant that the superintendent of the Montour railroad was resigning and that Robert Costello, an employee of P & LE in Ohio, was being transferred in as superintendent. Nether-ton told appellant that Costello’s position as superintendent was temporary, perhaps 3 to 5 months, after which Costello would move on to another position with P & LE and appellant would become superintendent. At the same time, appellant was promoted to assistant superintendent, a newly created position, and given a $3,000 a year raise. However, events did not go as planned, and Costello remained as superintendent from 1981 until at least the time of trial. In February of 1983 appellant was furloughed from his position as assistant superintendent. After his furlough, appellant “bumped” back to a position as machinist-welder. He continued to work as a welder until September of 1983 when he left his job following a dispute over the quality of his work.

On appeal, appellant raises six issues for review. In brief, appellant argues that Netherton’s promise of promotion was an enforceable employment contract for a specified duration. In the alternative, appellant argues that the rule of at-will employment should not apply here, and that he has a cause of action in tort for wrongful discharge.

Our scope of review is such that the entry of a non-suit will be upheld only in a clear case where the facts and circumstances have as the only conclusion the absence of liability. McKenzie v. Cost Bros., 487 Pa. 303, 409 A.2d 362 (1979). The appellant must be given the benefit of every fact and reasonable inference arising from the evidence. Id.

I.

In appellant’s first issue he argues that an enforceable, “unilateral” contract was created when, in December of 1980, Netherton promised that he would be promoted to superintendent. He claims that in consideration for that promise he fully performed certain activities. Appellant alleges that: 1) he performed activities additional to his employment, such as teaching Costello the Montour operation and assuming greater responsibility over general operations; and 2) he forbore seeking other employment in reliance on the promise of promotion.

The law is clear that where there is a promise of an additional benefit in return for the performance by the promisee of a contractual duty which the promisee is already under obligation to the promisor to perform, the promise is without consideration and therefore legally unenforceable. Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968). In reviewing the record and appellant’s own account of his meeting with Netherton, we find no evidence that the activities appellant performed, which he now claims were consideration, were distinct from or additional to the duties required of him in his position as assistant superintendent. The position was new and had no definite job description. The trial court’s finding that appellant’s enhanced activities, being performed concomitant with his appointment to assistant superintendent, were really activities entailed in that position, for which he was compensated by a $3,000 raise is fully supported by the record.

Appellant further contends that his forbearance from seeking other employment constitutes sufficient consideration for the promise of promotion. Appellant correctly states that forbearance in exercising a right may be deemed consideration; however, to be such the forbearance must be bargained for and given in exchange for the promise made by the promisor. Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978) (The court held that forbearance from instituting a legal action was not consideration to make an agreement a binding contract where appellant did not intend or desire to elicit appellee’s forbearance.) In the instant case, appellant presented no evidence that his forbearance was intended by Montour or bargained for in exchange for the promise of promotion. Appellant was at all times free to exercise his right to leave; therefore, his forbearance was not consideration which would make the promise a binding contract. We affirm the trial court’s conclusion that as a matter of law, appellant did not present a case for submission to the jury on his claim for breach of contract.

II.

In his second issue, appellant argues that the non-suit was improper because it is the exclusive function of the jury to determine the terms of an employment contract. Appellant is apparently arguing that the jury could have inferred an implied-in-fact contract term that appellant, as superintendent or in another position, would be employed until he retired or resigned. The obvious intent of this argument is to establish a definite term of employment with Montour, in some capacity, thereby excepting him from the rule applicable to at-will employees. We have reviewed the record and find no evidence meriting a submission of this question to the jury.

First, appellant’s argument that his contract of employment as superintendent would have had an implied-in-fact term of duration based on custom, policy and practice is necessarily moot given our immediate finding that no such contract existed. Second, if appellant is arguing that his employment contract, for any position, contained an implied-in-fact term of duration, then the law is clear that he must rebut the presumption of at-will employment by showing facts and circumstances establishing some tenure of employment or by proving some additional consideration was rendered to support a definite term of employment. Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986).

The question of whether an employment contract is at-will or not is one of interpretation, but the court may determine the issue where “the evidence is so clear that no reasonable man would determine the issue ... in any way but one.” Darlington, 350 Pa.Superior Ct. at 195, 504 A.2d at 312, quoting, 3.A. Corbin, Corbin on Contracts (1960). Definiteness is required to overcome the at-will presumption. Darlington v. General Electric, supra. Appellant contends that Netherton’s promise and other representations made to him indicating that he was a good employee and that he would be promoted to superintendent and perhaps more, created in him an expectation of life long employment. In Darlington, supra., the Court agreed with the holding in Adams v. Budd Co., 583 F.Supp. 711 (E.D.Pa.1984), that an employee’s reliance on the bare supposition that his position was expected to last until retirement was too vague and indefinite to establish a specific term of employment. Similarly, appellant’s evidence of expectations alone offer only vague and conclusary contentions which are inadequate to create a binding obligation on appellees. Moreover, appellant in his brief and at trial has failed to identify what, if any, additional consideration was given in order to overcome the presumption of at-will employment. There is no evidence on record that appellant underwent any unusual hardships which he was not already bound to undertake and was compensated for in his regular employment. Likewise, there is no indication that his talents were unique such that they could be deemed additional consideration to support the theory that appellees intended to employ him until retirement or resignation. See, Darlington, 350 Pa.Superior Ct. at 199, 201, 504 A.2d at 314, 315 (Court outlines numerous examples of additional consideration, none of which are present here.) We conclude that, as a matter of law, appellant did not present sufficient evidence to overcome the presumption of at-will employment.

III.

Appellant’s remaining issues essentially deal with his tort claim for wrongful discharge. For the following reasons we are compelled to hold that the trial court correctly granted appellee’s motion for a compulsory non-suit on these issues.

First, appellant was never discharged, but was rather furloughed from his management position as assistant superintendent. We recognize, as appellant did at trial, that a furlough is not a discharge. The possibility remained that appellant might have been called back as assistant superintendent and in fact appellant’s employment with Montour did not end at that point. Subsequent to his furlough, appellant was able to “bump” into the position of machinist-welder because he had retained his union rights, including seniority. At trial, appellant gave the following account of his termination. According to him there was already some friction between Costello and appellant over appellant’s welding abilities when on September 27, 1984, out of malice Costello told him to perform an allegedly unnecessary welding task. Appellant refused, claiming that the task was not within his job category. Costello consequently gave appellant a letter of disqualification as a machinist-welder. Appellant signed the letter and left the property; that was his last day of work for Montour.

Thus, the second and more important fact is that appellant’s termination, whether or not it was actually a “discharge,” came when he held a job covered by the collective bargaining agreement between appellees and appellant’s union. In Phillips v. Babcock & Wilcox, 349 Pa.Super. 351, 503 A.2d 36 (1986), our Court specifically addressed the issue of whether a union member, protected by the terms of a collective bargaining agreement, could file a wrongful discharge claim in tort against his employer. The Court held that “the tort of wrongful discharge is available only when the employment relationship is at-will.” Id, 349 Pa. Superior Ct. at 355, 503 A.2d at 38. Appellant, at the time his employment was terminated, was not an at-will employee; he was contractually protected by a collective bargaining agreement and must seek redress through the agreement’s grievance procedures. Id. Appellant was admittedly working a job under a collective bargaining agreement when his employment ended and therefore any wrongs he may have suffered in that job must be remedied through the procedures established in that agreement.

Order affirmed.

      . We note that appellant has presented evidence of detrimental reliance on the promise, however, he has not argued or pled a theory of promissory estoppel and we cannot raise it for him.


author: HESTER, Judge:

text:
    516 A.2d 33
    Jennie Marie TERIBERY v. George Wilbert TERIBERY, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 14, 1986.
    Filed Sept. 19, 1986.

      Donald W. Grieshober, Erie, for appellant.
    Kevin J. Kingston, Erie, for appellee.
    Before WATKINS, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

Appellee, Jennie Marie Teribery, filed a complaint in divorce against appellant, George Wilbert Teribery, on January 12, 1983. Appellee’s complaint included claims for support, alimony, equitable distribution of marital property, alimony pendente lite, counsel fees and expenses.

Following a hearing on May 3, 1983, a master filed a report recommending that appellant pay $188.00 weekly as alimony pendente lite to appellee. Appellant filed exceptions from the master’s report; the trial court deferred disposition until a final master’s report was filed on remaining claims.

A subsequent master’s hearing was conducted on alimony and distribution of marital property. The master recommended that appellee be awarded the marital house, household goods, certificate of deposit in the amount of $10,-000.00, silver coins, joint checking account and riding lawn mower. Appellant was to be awarded his pension plan, automobile, guns and cabinet, bow and 1982 income tax refund. Appellee was also awarded alimony in the amount of twenty five percent (25%) of appellant’s net income. Both parties filed exceptions from this master’s report.

By order dated November 15, 1984, the trial court dismissed appellant’s exceptions to the alimony and equitable distribution report. Appellee’s exceptions were granted to the extent that 1) alimony was increased to fifty percent (50%) of appellant’s net income subject to reduction by appellee’s income, and 2) appellee was awarded fifty percent (50%) of the value of appellant’s pension plan accruing from the date of marriage to the date of separation.

Shortly thereafter, appellant’s exceptions from the master’s report on alimony pendente lite were dismissed by order dated November 19, 1984. Appellant filed a timely appeal at 1611 Pittsburgh 1984 from the orders of November 15, 1984, and November 19, 1984.

Following appellant’s appeal, appellee filed a petition with the trial court for enforcement of alimony pendente lite. The petition was granted on December 28, 1984, and appellant was ordered to continue paying alimony pendente lite of $188.00 per week while the appeal was pending. Appellant filed an appeal from this order at 124 Pittsburgh 1985.

Thus, two appeals concerning three trial court orders have been consolidated for review. After both appeals were filed, appellant filed a petition in trial court and this court to revoke his affidavit of consent to the divorce. We remanded this petition to the trial court for complete disposition. The petition was denied by the trial court, and appellant’s exceptions were also denied by order of December 11, 1985. No appeal was filed from that order.

Appellant raises the following arguments: 1) he has the unconditional right to revoke his affidavit of consent, and such revocation would render moot all orders regarding alimony, counsel fees, expenses and equitable distribution of marital property; 2) the distribution of marital property was inequitable; 3) the trial court erred in awarding alimony to appellee at the rate of fifty percent (50%) of appellant’s net income; 4) the order for alimony pendente lite was confiscatory; and 5) the trial court had no authority to rule on alimony, counsel fees, court costs and equitable distribution of marital property when appellant had withdrawn his affidavit of consent.

Appellant cites Hoffman v. Hoffman, 350 Pa.Super. 280, 504 A.2d 356 (1986), as support for his contention that he has the absolute right to withdraw his affidavit of consent. The Hoffman panel noted in dictum that a plaintiff cannot withhold her consent to the divorce while maintaining a claim for alimony pendente lite. Hoffman further held that a trial court cannot dismiss a divorce complaint due to the plaintiff’s refusal to file an affidavit of consent unless the court first notifies the plaintiff of the consequences of not filing a written consent.

Hoffman does not support appellant’s contention that he can negate prior orders for alimony and equitable distribution by withdrawing his affidavit of consent. The plaintiff in Hoffman refused to file an affidavit, and no orders on ancillary claims had been entered. Here, however, appellant had filed his affidavit, a divorce decree issued and then alimony and equitable distribution were determined. Appellant is dissatisfied with the alimony and equitable distribution orders, and has attempted to void them and remove the jurisdiction of this court by withdrawing his affidavit. There is no precedence for this course of action.

At the outset of the hearing on alimony pendente lite, the parties agreed on the record to sign affidavits of consent. The parties later discussed the signing of affidavits at the hearing on equitable distribution. Appellant had executed his affidavit prior to the hearing and his counsel remarked that “I would like to see [appellee’s affidavit] signed.” N.T. July 28, 1983, at 1. Appellee’s affidavit was signed, and both parties presented their affidavits to the master for filing. The affidavits were filed, and a divorce decree was signed following disposition of exceptions on November 15, 1984.

It is apparent that appellant moved for a divorce under section 201(c) of the Divorce Code. In fact, the issue whether to grant a divorce was removed from the master when both parties submitted affidavits and left only alimony and equitable distribution for the master’s disposition. Appellant does not complain that his affidavit was signed under duress, fraud or undue influence. His affidavit was knowingly, voluntarily and eagerly signed, and he seeks to withdraw it solely due to his displeasure with the alimony and equitable distribution orders. Appellant had the opportunity to challenge the divorce decree on appeal. He cannot negate the entire trial court proceedings by withdrawing his affidavit after he has used those proceedings in full.

Next, appellant argues that the distribution of marital property was inequitable as appellee allegedly was awarded ninety-seven (97%) percent of the marital property, and only three percent (3%) was awarded to him. In review of the equitable distribution order, we are mindful of the broad discretion accorded trial courts, and we will not disturb the ruling absent abuse of discretion. Kleinfelter v. Kleinfelter, 317 Pa. Super. 282, 463 A.2d 1196 (1983).

Appellant’s assessment that he was awarded only three percent (3%) of the marital property is inaccurate. Appellant’s calculation ignores the accrued economic value of his pension benefits. He maintains that since there was no lump sum payment option under the plan and since the master did not consider the taxable nature of the monthly retirement benefit, it was error to value the plan as of the date of separation at $43,595.00.

An actuary was deposed by the parties on August 22, 1983. He considered appellant’s age of fifty two, annual salary of $33,000.00, work history of thirty two years with the same employer and the pension plan terms in arriving at the present economic value of $43,595.00.

Appellant incorrectly argues that a present value cannot be placed on a pension benefit which is realized on a deferred distribution plan. In Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985), we held that the present uncollectability of a pension benefit does not preclude assigning it a present value. We defined present value in Flynn as the amount of money an employee would accept in return for relinquishing his rights to deferred distribution. We further noted that present value must be discounted by mortality, inflation, interest, probability of continued employment and vesting. The actuary here applied these factors in calculating present value. It was not necessary to apply the coverture fraction alluded to in Flynn v. Flynn, supra, and King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). The coverture fraction is utilized to determine the portion of the present value which is attributed to the period from date of marriage to date of separation. Only one year prior to marriage was excludible from appellant’s thirty two years of employment for purposes of identifying the non-marital portion of present value. Presumably, appellant does not argue that the coverture fraction was improperly excluded as that one year would constitute nominal value.

The value of marital property awarded appellee can be enumerated as follows:

Marital residence discounted by the mortgage balance and $19,185.03 one-half fair rental value for months appellee resided there alone while appellant paid maintenance expenses
Certificate of deposit 10,000.00
Household goods and furnishings 7,000.00
Silver coin collection 100.00
Riding lawn mower 675.00
Joint checking account 700.00
One-half of appellant’s pension benefits 21,297.50
$58,957.53

Appellant’s award is enumerated and valued as follows:

Rights in 1977 Oldsmobile Cutlass used to purchase 1979 $ 450.00 Buick la Sabre
Guns and cabinets 450.00
Bow 69.00
1982 Income Tax Refund 349.00
One-half of pension benefits 21,297.50
$22,615.50

This calculation discloses that appellee was actually awarded seventy two percent (72%) of the marital assets while appellant was awarded twenty eight percent (28%). Although this distribution is unequal, it is not inequitable.

The Divorce Code at 23 P.S. § 401(d) provides ten factors which shall be considered in equitably dividing marital property. The trial court noted the relevant factors here by considering the thirty-one years of marriage, a marriage while both parties were teen-agers, the parties’ failure to graduate from high school, the absence of significant property brought to the marriage, appellee’s status as full-time homemaker for appellant and their six children, the parties’ roughly equal ages, appellee’s five-year history of employment outside the home, appellee’s passive and dependent personality, appellee’s major depressive disorder, appellee’s lack of skill and training in the workforce, appellee’s unsteady employment, appellant’s steady employment, and appellant’s good physical and mental health.

Of these factors, it is particularly significant to note that appellee had worked only five years prior to separation as an assembly line packer of dairy products. During those five years, she was unemployed for an average of six months each year, with one unemployment period lasting one year. Appellee’s gross income for 1982 was $6,053.00 in earnings and $1,176.00 in sick pay. Conversely, appellant earned $33,500.00.

Appellee’s age and personality diminish her opportunities for better employment. At age fifty-one, she is unlikely to upgrade her salary even with retraining. Furthermore, her treating psychiatrist testified that she was insecure and dependent. He also noted that her separation from appellant caused her to suffer from severe depression. She had been admitted to a mental health facility as an inpatient on four occasions during the year following separation. Her psychiatrist prescribed heavy dosages of antidepressant medication to combat her occasional suicidal inclinations. The pychiatrist expected appellee to recover from her mental disorder, but her timidity and dependent nature were irreversible.

Conversely, appellant had established an excellent work history over thirty-two years with the same employer. His periods of unemployment were negligible. He had significant seniority and practically no risk of being laid off prior to retirement. Appellant enjoyed good health and financial independence.

In light of these circumstances, the trial court did not err in its distribution of marital property. Accordingly, we reject appellant’s argument that the equitable distribution order was inequitable.

Third, appellant argues that the trial court erred in awarding permanent alimony to appellee at the rate of fifty percent (50%) of his net income. Appellant particularly complains that the court considered, inter alia, his marital misconduct in awarding permanent alimony as there was allegedly no evidence of misconduct. Appellant complains further that the alimony order is defective as it does not provide for contingencies such as death or appellee’s receipt of disability benefits, sick pay or retirement benefits.

Although the trial court awarded appellee one-half of appellant’s net pay, alimony was to be reduced by appellee’s earnings. Alimony was ordered terminated at such time as appellee earns a net salary which is equal to or exceeds fifty percent (50%) of appellant’s net income.

An alimony order is reviewed against the standard of abuse of discretion, and the trial court’s role as trier of fact shall be viewed deferentially. Mazzei v. Mazzei, 331 Pa.Super. 432, 480 A.2d 1111 (1984).

In light of the parties’ respective incomes, earning capacities, ages, health, education, standard of living, assets, and needs, we find no error in the award of alimony. See 23 P.S. § 501(b). See Eck v. Eck, 327 Pa.Super. 334, 475 A.2d 825 (1984), for a discussion of the imposition of alimony for a dependent spouse of advanced years, lack of education and limited work experience. Moreover, appellant’s departure from the marital home is not the only evidence of misconduct. Depending on the circumstances, leaving the marital home may not constitute misconduct. However, appellant overlooks evidence of his infidelity. Although appellant denied his extramarital affairs, appellee testified to the contrary. The trial court ^obviously considered appellee’s testimony more credible.

Furthermore, we do not agree with appellant that an alimony award must reflect all contingencies. Section 501(e) of the Divorce Code provides that any alimony order may be “modified, suspended, terminated, reinstated or a new order made” upon “changed circumstances.” Should either party die or become disabled, for example, a petition for modification can be filed to reflect changed circumstances. Furthermore, an award of alimony shall not extend beyond the payor’s death, unless the parties have agreed otherwise. Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985).

The primary purpose of an alimony award is rehabilitative, not punitive. Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984). In reducing alimony by the amount appellee earns and terminating alimony when appellee earns more than fifty (50%) percent of appellant’s net income, the order is indeed rehabilitative. It gives appellee sufficient time to adjust to the separation, respond to psychiatric treatment and improve her earning capacity.

Appellant’s next argument is that the trial court erred in awarding appellee $188.00 per week as alimony pendente lite. The purpose of an alimony pendente lite award is to enable a dependent spouse to prosecute or defend a divorce action without causing financial havoc, Sutliff v. Sutliff, 326 Pa. Super. 496, 474 A.2d 599 (1984), or a delay in proceedings. Orr v. Orr, 315 Pa.Super. 168, 461 A.2d 850 (1983).

At the time of the hearing on alimony pendente lite, appellee was on sick leave and receiving weekly sick pay of $111.96. Her only other income was monthly interest of $80.00 earned on a certificate of deposit. Conversely, appellant was earning a net weekly wage of $435.99.

Appellee’s monthly expenses included a mortgage payment of $162.63, automobile loan payment of $186.00 and electric utility payment of $121.00. Appellee’s remaining expenses for food and clothing were insignificant. Appellant pays $300.00 per month for a hotel room, $280.00 for meals and $161.00 to his credit union. Appellant’s monthly hotel expense of $300.00 included utilities, and there was evidence that rent was reduced by nearly fifty percent (50%) during the off tourist season. In light of the parties’ respective incomes and expenses, we find no error in the alimony pendente lite order.

Orders affirmed.

        , Appellant’s final argument is that the trial court had no jurisdiction to enter orders on alimony pendente lite, alimony and equitable distribution because he later withdrew his affidavit of consent. This argument is meritless and does not require further comment due to our holding that appellant could not withdraw his affidavit under these circumstances.


author:
POPOVICH, Judge:
      BROSKY, Judge,

text:
    516 A.2d 38
    COMMONWEALTH of Pennsylvania v. Charles L. FRYE, III, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1986.
    Filed Sept. 22, 1986.

      Donald L. Best, Jr., Pittsburgh, for appellant.
    James J. Nesser, Assistant District Attorney, Connellsville, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed after appellant, Charles Lewis Frye III, was convicted by a judge sitting without a jury of racing on the highways. 75 Pa.C.S.A. § 3367. We affirm.

Appellant raises the following issues: (1) whether the evidence was insufficient to support appellant’s conviction beyond a reasonable doubt; (2) whether the criminal complaint which was filed against appellant was defective because the complaint failed to specify the speed at which appellant was alleged to have driven and also failed to specify the applicable speed limit. We must reject appellant’s contentions.

Viewing the evidence in a light most favorable to the verdict winner, which is the prosecution in this case, the facts as summarized by the trial court consist of the following:

On September 15, 1984, Pennsylvania State Police Trooper, Daniel J. Venick, was on routine traffic patrol with Trooper Frank Winter. At approximately, 11:20 P.M., the troopers were stopped at a red light in the northbound left-turn lane at an intersection on U.S. Route 119. At this intersection, U.S. Route 119 is a six lane divided roadway, consisting of two northbound lanes and a northbound left-turn lane, and two southbound lanes and a southbound left-turn lane. While waiting for the light to change, Trooper Venick observed appellant operating a 1934 Ford Coupe, which was described as a “hot rod.” Co-defendant, William H. Shiffler, Jr., was operating a “modified” 1965 Volkswagen Beetle. Both vehicles stopped side by side at the intersection.

The trooper heard appellant and his co-defendant (hereinafter referred to as appellants) “revving” their engines and “chirping” their tires for approximately twenty to thirty seconds before the light changed to green. When the light turned green, the appellants’ tires squealed and their vehicles accelerated to a high rate of speed for three tenths (.3) of a mile. During this period of acceleration, their vehicles were side by side in the northbound lanes, at which point Frye’s vehicle surpassed and pulled in front of Shiffler’s vehicle. Under these circumstances, the troopers stopped appellants approximately seven tenths (.7) of a mile from the intersection and cited them for racing on the highways.

On appeal, appellant contends that the evidence is insufficient to prove “each and every element of the offense of racing on the highways.” Brief for Appellant at 8. However, because the only theory which appellant raised, in support of his claim of insufficient evidence, is that the “evidence only established [that] the defendants made a quick start”, we are unable to review each and every element of the offense of racing on the highways. “MOTION IN ARREST OF JUDGMENT”, Allegations Nos. 4 and 5. Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980).

In examining appellant’s claim that the evidence only established that the appellants made a quick start, we must begin with the applicable criminal statute which provides:

§ 3367. Racing on Highways
(a) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Drag race.” The operation of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of the vehicle or vehicles within a certain distance or time limit.
“Race.” The use of one or more vehicles in an attempt to outgain, outdistance or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes.
(b) General rule.—No person shall drive a vehicle on a highway in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record, and no person shall in any manner participate in any such race, competition, contest, test or exhibition.
(c) Permits for special activities.—The department or local authorities within their jurisdiction may issue permits for special activities which would otherwise be prohibited by this section.
(d) Penalty.—Any person violating this section is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.
1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977.

The only testimony which supports appellant’s claim was the testimony proffered by defense witnesses which established that the “revving” sound was made in order to maintain the idle speed for the engine of Frye’s car. Because the fact finder is free to believe all, part or none of the evidence presented, we must conclude that appellant is not entitled to relief. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984).

The evidence which was introduced at trial, when viewed in a light most favorable to the prosecution, established that appellant and co-defendant, Shiffler, operated their vehicles side by side as they “revved” their engines, “chirped” their tires for twenty to thirty seconds, and accelerated to a high rate of speed for three tenths (.3) of a mile after the light turned green. Additionally, the record also showed that appellant’s vehicle surpassed and pulled in front of Shiffler’s vehicle at this time. Under these circumstances, the record establishes that the appellant’s guilt was proven beyond a reasonable doubt for racing on the highways.

Appellant next contends that the trial court erred in denying appellant’s motion to dismiss the complaint because the complaint failed to specify the speed at which appellant was driving and the applicable speed limit. We also must disagree.

The applicable provision of the Motor Vehicle Code, 75 Pa.C.S.A. 3366, states:

§ 3366. Charging speed violations
In every charge of violation of a speed provision in this subchapter, except for a violation of section 3361 (relating to driving vehicle at safe speed), the citation or complaint shall specify the speed at which the defendant is alleged to have driven and the applicable speed limit.

Additionally, the citation at issue contained the following language:

According to appellant, the citation which was filed with the court “contains information not set forth on the citation issued to Charles Frye”. Brief for Appellant at 16. Therefore, appellant argues that the citation is defective because his copy of the citation “specifies neither the speed at which he was alleged to have driven nor the applicable speed limit.” Id.

In this case, appellant argues that the speed should have been set forth in “BLOCK 10” of his copy of the citation which designates the “Nature of Offense”. Id. In this case, we conclude that the citation which was filed was not defective and also that the copy of the citation which was given to appellant was sufficient to inform him of the nature of the charges which were pending against him. See Pa.R.Crim.P. 52 subd. A(l)(e). (Every citation shall contain “a citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged”.)

The citation which was issued to appellant states that appellant “DID COMPETE IN A ‘DRAG RACE’ WITH ANOTHER VEH. FROM STOP LIGHT IN ATTEMPT TO OUT ACCELLERATE [SIC] THE OTHER VEH.” Record, Item No. 2, page 3. Under these circumstances, we have no difficulty in concluding that appellant had adequate notice of the charge filed against him. In a similar case, we commented:

We must uphold the Commonwealth’s position that the summary requirement is meant to “accurately describe the gravamen” of the offense rather than lay out a blow-by-blow description of events. The Commonwealth v. Weed case, [3 Pa.D & C 3rd 151 (Cumberland Co. 1977)] made the following observation in reference to this:
Although a citation must include a specific section of the statute violated, it need only show a summary of the facts sufficient to advise the defendant of the nature of the offense charged, notifying him of the pending prosecution and affording him a chance to defend himself ... This lenient description of the offense is all that is necessary because the defendant must be served upon the issuance of the citation, giving him immediate notification of the alleged infraction when he is best able to observe and recall facts and circumstances surrounding the incident ... Thus, we conclude that the description of the offense on a citation is adequate so long as it advises the defendant of the nature of the charge. See, too, Commonwealth v. Yarnell, 57 D & C 2d 541 (Lebanon Co. 1972), Commonwealth v. Colbert, 56 D & C 2d- 419 (Bucks Co.1972).
We find no serious question that the citation, summary included, advised the appellant of the nature of the charges. Who is better able to know what conduct occurred which requires a defense but the defendant himself, being present at the issuance of the citation? Notice is the operative term here and we find that the summary, as interpreted by Weed, supra, was sufficient. The citation, as far as specificity is concerned, was valid.

Commonwealth v. Stahl, 296 Pa.Super. 507, 513, 442 A.2d 1166, 1169 (1982) (Emphasis added).

In this case, even appellant concedes that the speed of appellant’s vehicle was not an element of the offense charged. Instead, the gravamen of the instant offense is the acceleration competition by one vehicle which appellant was driving with another vehicle from a particular stop light. Hence, we find that appellant was adequately informed of the charge which was filed against him.

In support of his argument that the instant citation should have been dismissed, appellant cites the case of Commonwealth v. Morris, 268 Pa.Super. 269, 407 A.2d 1350 (1979). In Morris, this Court held that a citation for racing on the highways was defective because “an allegation as to speed was required in the complaint and was not there.” Id., 268 Pa.Superior Ct. at 271, 407 A.2d at 1351.

We also mentioned that the citation which was issued failed to indicate the speed and said the following:

Sections 3366 and 3367 are both a part of the subchapter F of the code.[] The language of Section 3366 is clear and unambiguous and mandatory. To say that § 3367(b) is not a speed provision of the act is to blind oneself to its language and should the Legislature have intended to exempt it from the mandate of § 3366 it would have done so as it did with § 3361.
Id. (Footnote added).

Because proof of a particular speed is not an essential element of the offense of racing on the highways in this case, we must reject and overrule our previous decision in Commonwealth v. Morris, supra, which mandates a discharge absent an allegation of speed.

In the past, we have said that a discharge is warranted only if a “complaint, citation, summons or warrant contain a substantive defect ...” Pa.R.Crim.P. 150; Commonwealth v. Gerard, 313 Pa.Super. 70, 74, 459 A.2d 414, 416-417 (1983). We also have said that:

Substantive defects are exemplified as ones in which the defendant’s identity cannot be determined or where the offense is not properly described.
Id.

Because we are unconvinced that a defendant must be informed of either the applicable speed limit or the speed at which he is alleged to have driven in order to defend against a charge of racing on the highways, appellant is not entitled to relief.

Judgment of sentence is affirmed.

BROSKY, J., files a concurring statement.

BROSKY, Judge,

concurring:

I join in the majority’s opinion as to the first issue in this case. As to appellant’s second issue, as I read the majority’s opinion, it does not resolve the question raised in Commonwealth v. Morris, 268 Pa.Super. 269, 407 A.2d 1350 (1979), whether 75 Pa.C.S. § 3367 is a speed provision and thus whether § 3366 requires a citation or complaint charging a violation of § 3367 to specify the speed at which the defendant is alleged to have driven and the applicable speed limit. Rather, the majority appears to hold that even if § 3367 is a speed provision that the absence of an allegation of speed in a citation or complaint is not a defect which warrants discharge. I would agree with the dissent in Morris and hold that § 3367 is not a speed provision. Of course, under either this analysis or the majority’s, a defendant is not entitled to be discharged if he is not informed of the applicable speed limit or the speed at which he is alleged to have driven. Therefore, I agree with the majority that the judgment of sentence must be affirmed.

      . For appellant’s summary conviction, appellant received a fine of $200.00 and was ordered to pay the costs of prosecution.

      . Co-defendant Shiffler’s case was consolidated and tried with appellants. Although the appeal of Shiffler has not been consolidated on appeal, both parties are represented by the same private attorney who has filed only one brief for both appeals. See Appeal at No. 499, Pittsburgh Term, 1985.

      . In his brief, appellant states the following:
      "No argument will be raised that, under 75 Pa.C.S.A. § 3367, a driver must exceed the posted speed limit before he can be cited for racing.” Brief for Appellant at 11.

      . An examination of Subchapter F, entitled “SPEED RESTRICTIONS”, reveals the following statutory provisions: Driving vehicle at Safe Speed (75 Pa.C.S.A. § 3361), Maximum Speed Limits (75 Pa.C.S.A. § 3362), Alteration of Maximum Limits (75 Pa.C.S.A. § 3363), Minimum Speed Regulations (75 Pa.C.S.A. § 3364), Special Speed Limitations (75 Pa.C.S.A. § 3365), Charing Speed Violations (75 Pa.C.S.A. § 3366), Racing on Highways (75 Pa.C.S.A. § 3367), and Speed Timing Devices (75 Pa.C.S.A. § 3368).


author: TAMILIA, Judge:

text:
    516 A.2d 45
    COMMONWEALTH of Pennsylvania v. Dick Lavere AHEARN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 4, 1986.
    Filed Sept. 30, 1986.
    Petition for Allowance of Appeal Denied March 4,1987.

      James N. Bryant, State College, for appellant.
    Ross H. Cooper, Assistant District Attorney, Bellefonte, for Com., appellee.

      Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

Appellant was found guilty of first degree murder on January 9, 1964 and subsequently sentenced to life imprisonment. In Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966), judgment of sentence was affirmed on direct appeal with the Pennsylvania Supreme Court agreeing with the trial court that psychiatric testimony concerning the defense of irresistible impulse was inadmissible. A PCHA petition filed in 1970 was dismissed; the dismissal was affirmed by Pennsylvania Supreme Court in Commonwealth v. Ahearn, 447 Pa. 585, 287 A.2d 901 (1972), as was a subsequent PCHA petition in 1980, from which allowance of appeal to the Supreme Court was denied.

In 1985, the present PCHA petition was filed raising the issue of the retroactivity of the rule of law established in Commonwealth v. Walzak, 468 Pa. 210, 360 A.2d 914 (1976), which admitted into evidence, in a prosecution for murder, psychiatric testimony on the mental capacity to form the specific intent necessary for first degree murder, thereby reducing first degree murder to second degree murder. Following a hearing the lower court denied appellant’s petition and this appeal followed.

Appellant contends the court erred in refusing to apply the ruling in Walzak, supra, retroactively, claiming he should be granted a new trial. We do not agree.

Appellant acknowledges the difficulty of his position in citing those United States Supreme Court cases which hold that retroactivity applies only to those cases on direct appeal and does not concern itself with the substantive, procedural, constitutional or nonconstituti'onal nature of the case. Hankerson v. North Carolina, 432 U.S. 233, 246, 97 S.Ct. 2339, 2347, 55 L.Ed.2d 306 (1977); Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). In Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), the Pennsylvania Supreme Court, likewise, held that retroactivity is applicable only in those cases on direct appeal in which the question is properly preserved at all stages of adjudication up to and including any on direct appeal. This is not to be interpreted to mean that once a decision has been made at the final stage of appeal, as here, that that decision is subject to review, forevermore, should the law be changed. In Commonwealth v. Hines, 341 Pa.Super. 456, 491 A.2d 907 (1985), in which the retroactivity was sought of liberalization of the law engendered by Commonwealth v. McCutcheon, 463 Pa. 90, 343 A.2d 669 (1975), requiring an interested adult to be present during interrogation of a juvenile, when the issue was not preserved on appeal, this Court held that “it seems fair in striking the balance between individual rights and the administration of criminal justice to limit retroactive applications of the case” citing Commonwealth v. Willman, 434 Pa. 489, at 492, 255 A.2d 534 at 535 (1969). Hines also took note that the McCutcheon rule had been applied to cases, on appeal, in which the issue had been preserved. Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1976). Here, the appellant is not on direct appeal nor is it an appeal nunc pro tunc. Proceeding under the PCHA does not revive issues which have been raised and disposed of on appeal, or which have not been raised because they were not in the contemplation of the law at the time, and arise subsequently as an evolutionary development in the legal process. Hines, supra; Willman, supra.

Even should retroactive effect be given to Walzak, it would be of no avail to appellant since appellant’s defense and theory of the case was based on “irresistible impulse” which then, as now, was not recognized as a defense in Pennsylvania. See Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852 (1961); Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963). Pennsylvania has never deviated from the McNaughten rule which requires that for a person to be legally insane “at the time he committed the act, either he did not know the nature and quality of the act or he did not know that it was wrong.” Commonwealth v. Demmitt, 456 Pa. 475, 481, 321 A.2d 627, 631 (1974). In elaborating upon that test, our Supreme Court has noted that:

It is not intended to separate the emotionally disturbed defendants from the emotionally healthy. Rather, it is intended to include defendants, both disturbed and healthy, among those who are held criminally responsible____

Id., 456 Pa. at 481, 321 A.2d at 631.

This precisely was the holding by the Supreme Court in this case at Commonwealth v. Ahearn, supra, and is unchanged, despite Walzak, to the present time. Appellant would now change his defense theory, prospectively to conform with Walzak’s acceptance of a diminished capacity concept. This, too, must fail as the proof offered by way of psychiatric testimony to establish the failed defense of irresistible impulse is qualitatively different than that required for diminished capacity. As the court stated in Walzak:

... The doctrines of diminished capacity and irresistible impulse involve entirely distinct considerations. Irresistible impulse is a test for insanity which is broader than the M'Naghten test. Under the irresistible impulse test a person may avoid criminal responsibility even though he is capable of distinguishing between right and wrong, and is fully aware of the nature and quality of his act provided he establishes that he was unable to refrain from acting. An accused offering evidence under the theory of diminished capacity concedes general criminal liability. The thrust of this doctrine is to challenge the capacity of the actor to possess a particular state of mind required by the legislature for the commission of a certain degree of the crime charged.

Id., 468 Pa. at 221, 360 A.2d at 919. Walzak recognized that with psychiatric techniques, not available earlier, the reliability of psychiatric testimony in determining diminished capacity is now sufficient to consider it. Thus, although a person may be sane for purposes of the McNaughten test, the capacity to act may be diminished so that the requisite intent for commission of the crime may not be present. However, to permit a restructuring of evidence or an attempt to establish the diminished capacity of appellant to commit the crime charged more than twenty-three years after its commission, would be an exercise in imaginative fabrication or psychological reconstruction. To do so would unravel the stability of the criminal justice system and leave every case open to retroactive application of every new legal theory or medico-socio/psychological development that came into vogue.

This case has had its review in depth, through the most exhaustive proceedings permitted by our appellate process. The PCHA court adequately reviewed the record and fully analyzed and properly applied the law as to retroactivity in this case. See Commonwealth v. Lutz, 492 Pa.Super. 500, 424 A.2d 1302 (1981). We find no error in that process and dismiss the current PCHA proceeding as being without merit.

Order affirmed.

JOHNSON, J., concurs in the result.

      . When the crime subject of this appeal was committed, it was governed by the Penal Code of 1939, Act of June 24, 1939, P.L. 872, § 701, 18 P.S. 4701. Under the present Crimes Code, the negation of a specific intent to kill would reduce the crime to murder of the third degree.