author: MONTEMURO, Judge:

text:
    568 A.2d 255
    Thomas ARGUST and Anita Argust, h/w Appellees, v. DICK MACKEY GENERAL CONTRACTING CO., INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 26, 1989.
    Filed Jan. 11, 1990.

      Peter G. Loftus, Scranton, for appellant.
    John R. O’Brien, Scranton, for appellees.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   MONTEMURO, Judge:

Appellees, Thomas and Anita Argust, sued appellant, Dick Mackey General Contracting Co., Inc., for negligence, breach of express warranty and breach of implied warranty of merchantability. Following a jury verdict in favor of appellees in the amount of $7,500.00, the trial court denied appellant’s motions for a new trial and judgment n.o.v. Appellant brought this timely appeal. On appeal, appellant claims that: (1) the trial court erred in not dismissing the negligence claim due to the expiration of the statute of limitations; (2) the trial court erred in not charging the jury on comparative negligence; (3) the trial court erred in not instructing the jury that it had to determine whether the leaking pool was the proximate cause of the wall collapse; (4) the trial court erred in not allowing appellant to offer a realtor’s testimony as to the value of appellees’ property, and (5) the trial court erred in not striking the testimony of appellees’ two experts as contradictory and lacking definitiveness. We find that the trial court erred in not dismissing the negligence claim. Because we find that under the facts of this case, the trial court’s error had no effect on the verdict, we uphold the $7,500.00 verdict in favor of appellees.

On August 15, 1981, appellant entered into a contract with appellees by which appellant agreed to install a swimming pool at appellees’ residence. Under the contract, appellant was obligated to draw up plans, lay out the pool, excavate the yard, install the pool, grade and fill in the soil, and install a fence, diving board and ladder. Appellees paid appellant $26,668.80 for the pool.

Appellant began construction of the pool in the Fall of 1981. In the Spring of 1982, problems surfaced: the concrete walkway on the side of the pool began to crack and sag; the dry stone walls supporting each side of the property fell in; the bank between the top of the pool and the neighbor’s yard had partially fallen in, leaving mud in the neighbor’s yard, and the pool was leaking. From the time appellees first noticed the problems with the pool construction in the Spring of 1982, until the Spring of 1984, the parties had numerous meetings and sent letters back and forth in an attempt to remedy the problems with the pool. Appellant tried to fix some of the construction problems, but the effort was to no avail. Finally, in the Spring of 1984, appellees hired engineers and architects to repair the erosion of the yard, the collapse of the supporting property walls, and the problems in the workmanship of the pool. Appellees spent over $30,000.00 on these repairs.

On August 15, 1985, appellees filed a Complaint, alleging negligence, breach of express warranty, and breach of implied warranty of merchantability. The jury returned a verdict in favor of appellees in the amount of $7,500.00.

Appellant argues that the statute of limitations on the negligence claim had expired by the time appellees filed suit on August 15,1985. We agree. An action for damage to property must be commenced within two years. 42 Pa.C.S.A. § 5524(7). By appellees’ own admission, they discovered the problems with the pool construction as early as the Spring of 1982. Appellees’ cause of action accrued when they first became aware of the defects in the pool construction.

“The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.” Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 99, 470 A.2d 482, 485 (1983). In this ease, appellees-plaintiffs could have maintained this action to a successful conclusion as of the Spring of 1982, when they first discovered the cracked and sagging walkway, the leaks in the pool, the collapsing property wall and the other damage. As of Spring of 1982, appellees could have established the elements of a cause of action in negligence: that appellant owed appellees a duty, that appellant breached that duty in failing to properly construct the pool, and that the breach was the proximate cause of actual injury in the form of property damage to the appellees. See Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606, 612 (1985), appeal denied 516 Pa. 638, 533 A.2d 710 (1987). Appellees’ cause of action arose in the Spring of 1982.

We hold that the statute of limitations had expired before the date on which appellees brought this suit, which was more than three years after appellees became aware of the damage to their property. The trial court erred in not dismissing appellees’ count in negligence. Because we find that the trial court should have dismissed the negligence claim, we need not address appellant’s arguments concerning the jury charges on comparative negligence and proximate causation.

Appellant argues that the trial court erred in failing to strike the testimony of appellees’ experts because their testimony was contradictory. Appellees presented the expert testimony of Patricia Acker, a soils and mining engineer, and Philip Clark, an architect, on the issue of what caused the wall collapse. In constructing the pool, appellant had built a side hill which was held up by the stone property wall. Ms. Acker testified that the slope of the hill built by appellant was too steep and the slope failure caused the collapse of the wall. Mr. Clark cited the over-steepened slope and the consequent slope failure and underground water as causes of the wall collapse.

We agree with the trial court that, the testimony of these two experts was not so contradictory as to require that it be stricken. Only where the experts “so vitally disagree on essential points as to neutralize each other’s opinion evidence” will the plaintiff’s case fail. Brannan v. Lankenau Hospital, 490 Pa. 588, 596, 417 A.2d 196, 200 (1980), quoting Mudano v. Phila. Rapid Transit Co., 289 Pa. 51, 61, 137 A. 104, 108 (1927). The two experts here did not disagree on what caused the wall to collapse. The trial court did not err in allowing the jury to consider the testimony of both experts on the issue of the cause of the wall collapse.

Appellant argues that the trial court erred in failing to strike the expert testimony of Ms. Acker as lacking in definitiveness. Ms. Acker opined that the “most probable cause” of the failed retaining wall was that the slope of the hill was too steep. N.T. November 19, 1987 at 186, 195.

We will allow an expert to render an opinion on a specialized subject beyond the knowledge of the average layperson where the expert possesses “sufficient skill, knowledge, or experience in that field so that his opinion would most likely aid the trier in the search for truth.” Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 225, 496 A.2d 762 (1985) (citations omitted). See also Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408, 415 (1984), appeal dismissed 508 Pa. 643, 500 A.2d 428 (1985). Ms. Acker testified that she had special education, experience, and knowledge in the field of geotechnical engineering, particularly in the areas of soil mechanics, rock mechanics, and foundation engineering. This engineering background enabled her to render an opinion to aid the jury in determining what caused the stone wall supporting the property to collapse.

We find that Ms. Acker’s opinion that the oversteepened slope of the hill built by appellant was the most probable cause of the wall collapse was sufficiently definite and certain to warrant its submission to the jury. See Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 232-34, 309 A.2d 698, 702-03 (1973); Marrazzo v. Scranton Nehi Bottling Company, Inc., 422 Pa. 518, 527, 223 A.2d 17, 22 (1966); Kravinsky v. Glover, 263 Pa.Super. 8, 21-22, 396 A.2d 1349, 1356 (1979) (“[T]o make an admissible statement on causation, an expert need not testify with absolute certainty or rule out all possible causes of a condition ... [t]hat an expert may, at some point during his testimony, qualify his assertion does not necessarily render his opinion inadmissibly speculative.”) (footnote omitted) (citations omitted). The trial court did not err in permitting the testimony to go to the jury.

Finally, appellant argues that the trial court erred in not allowing appellant to present the testimony of a realtor on the increase in value of appellees’ property due to installation of the pool. Appellant wanted to use the realtor’s testimony to rebut appellee Thomas Argust’s testimony that his property was diminished in value as a result of the defective pool and collapsed wall. In refusing to allow the realtor’s testimony, the court indicated that it would not allow the jury to award damages based upon diminution in value of the property, and therefore there was no need to have testimony on the issue. N.T. November 20, 1987 at 278-80. In its charge to the jury, the judge instructed them not to consider the testimony of appellee Thomas Argust as it related to diminution in value of the property. The court instructed the jury to consider only the cost of repairs in fashioning a damages award. Thus, although the court should not have permitted the testimony of appellee Thomas Argust on the alleged decrease in value of the property because it lacked relevance in this case, any prejudice appellant may have suffered on account of the testimony was overcome by the court’s instruction to the jury to ignore the testimony.

We hold that the trial court erred in failing to dismiss the negligence claim. After the trial court submitted the negligence and breach of warranty claims to the jury, the jury returned with a general verdict in favor of the plaintiffs-appellees for $7500.00. Because special interrogatories were not submitted to the jury, we do not know whether the verdict rested on the negligence claim, the breach of warranty claims, or a combination of the three theories. Upon review of the facts of this case, we find that if the jury had found that defendant-appellant was negligent, then the jury must have also found that defendant-appellant breached the express warranty. The Complaint alleges defects in workmanship and improper conduct on the part of defendant-appellant which, if found to be true, constitute both negligence and a breach of the express warranty. Under either theory, the measure of damages is the cost incurred by the plaintiffs to repair the problems with the pool and yard. Thus, although we find that the trial court erred in failing to dismiss the negligence claim, we find that under the circumstances of this case, the court’s error had no impact on the jury verdict. We uphold the jury verdict of $7500.00 in favor of plaintiffs-appellees.

Order affirmed.

      . Appellees’ property is built on a hill which has a steep pitch, thus requiring the support of dry stone walls on either end of the property.

      . In its discussion of this issue, the trial court erroneously states that the wall began to collapse in 1984. This statement not only contradicts the testimony of appellee Thomas Argust, and the facts as set forth in appellees' brief, it contradicts the trial court’s own statement of the facts. See Trial Court Opinion at 1 (“In the Spring of 1982 problems began to surface with the defendant’s work.’’).

      . The warranty, as set forth in the contract to build the pool, provides that the "Company warrants its work to be free from defects in material and workmanship for a period of one year from the date of the completed installation, and if any such defects should appear within such time shall remedy same without cost to owner, ...”

      . For example, the Complaint asserts that defendant was negligent in excavating and backfilling plaintiffs’ yard, causing erosion of the yard and sagging of the concrete surrounding the pool and walkway. The Complaint also avers that the sloped and sagging concrete walkway and the collapsed and eroded yard constitute defects in the workmanship of the pool which defendant failed to cure, in breach of the express warranty. Thus, if the jury believed that defendant was negligent with respect to the installation of the concrete and the excavation of the yard, they would also have found that defendant breached the warranty. All of the other allegations of negligence in the Complaint parallel the allegations of breach of express warranty in a similar fashion.


source: Caselaw Access Project

license: Public Domain

text:
    568 A.2d 259
    COMMONWEALTH of Pennsylvania v. James E. WHISNANT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 6, 1989.
    Filed Jan. 10, 1990.
    Roy D. Shirk, Lancaster, for appellant.

      J. Karen Arnold, Asst. Dist. Atty., Beliefonte, for the Com., appellee.
    Before WIEAND, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from the January 17, 1989, judgment of sentence of the Court of Common Pleas of Centre County, wherein the court sentenced the appellant, James E. Whisnant, to serve a period of incarceration of not less than ninety days for the offense of driving while under the influence of alcohol. Appellant had entered a plea of guilty to this charge. The record before us reveals that appellant was arrested on July 13, 1988, when police were called to the scene of a traffic accident in Centre County. After appellant failed three field sobriety tests, he was arrested and a subsequent blood test revealed appellant’s blood alcohol content to be .16%. Appellant was sentenced by the trial court as a third time offender based upon two prior convictions in the state of New Jersey. Appellant’s contention on appeal is that the trial court erred in finding that the New Jersey convictions stemmed from “equivalent offenses” under 75 Pa.C.S.A. § 3731(e)(l)(iii):

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

See 75 Pa.C.S.A. § 3731(e)(l)(iii).

Appellant’s prior convictions were established during the sentencing proceeding through a certified record from the state of New Jersey. Appellant first contends that the New Jersey offenses cannot properly be characterized as “equivalent” to his Pennsylvania DUI offense, because in New Jersey driving under the influence is not classified as a felony or a misdemeanor, but more as a summary offense in that there is no right to a jury trial and the maximum term of imprisonment for such an offense, even if the defendant is a repeat offender, is six months. In Pennsylvania, driving under the influence is a misdemeanor of the second degree, the accused has a right to trial by jury, and imprisonment of not less than one year must be ordered, for example, if the defendant has been convicted of DUI three times previously. See 75 Pa.C.S.A. § 3731(e)(l)(iv).

It is clear that these differences in Pennsylvania and New Jersey statutory law do not mandate the result urged by the appellant. In Commonwealth v. Bolden, 367 Pa.Super. 333, 532 A.2d 1172 (1987), this Court addressed the question of equivalency of foreign criminal convictions. The Bolden case involved a Colorado conviction for attempted second-degree burglary, which the trial court had found to be equivalent to Pennsylvania’s criminal attempt (burglary) for the purposes of sentencing. The Bolden Court opined:

... a sentencing court [must] carefully review the elements of the foreign offense in terms of the classification of the conduct proscribed, its definition of the offense, and the requirements of culpability. Accordingly, the court may want to discern whether the crime is malum in se or malum prohibitum, or whether the crime is inchoate or specific. If it is a specific crime, the court may look to the subject matter sought to be protected by the statute, e.g. protection of the person or protection of the property. In doing so, the court should identify the requisite elements of the crime-the actus reus and mens rea-which forms the basis of liability.
Having identified these elements of the foreign offense, the court should turn to the Pennsylvania Crimes Code for the purposes of determining the equivalent Pennsylvania offense. An equivalent offense is that which is substantially identical in nature and definition as the out-of-state or federal offense when compared to the Pennsylvania offense.

Id. 367 Pa.Super. at 338-339, 532 A.2d at 1176 (footnote omitted). The Bolden Court also noted that the “fundamental inquiry” in determining offense equivalency is the elements of the offense. Id., 367 Pa.Superior Ct. at 341, 582 A.2d at 1177.

Presently, the elements of a Pennsylvania DUI offense and a New Jersey DUI offense are substantially identical. Both define this offense as the operation of a motor vehicle while under the influence of alcohol or with a blood alcohol concentration of 0.10% or more. See 75 Pa.C.S.A. § 3731(a); N.J.S.A. § 89:4-50. The prohibited conduct, as well as the underlying public policy, of the Pennsylvania and New Jersey criminal statutes at issue in this case are the same. Consequently, the trial court did not err in treating them as equivalent offenses for the purposes of sentencing the appellant. To do otherwise would result in the precise unfairness the legislature sought to remedy when it enacted 75 Pa.G.S.A. § 8731(e)(1). Namely, the appellant would be treated as a first offender only because he had committed his previous crimes in another jurisdiction. As the trial court in the instant case aptly stated: “Such an interpretation would draw irrational distinctions between individuals guilty of the same criminal act and would work to defeat the purpose of the Pennsylvania statute to discourage repeated DUI offenses by the same offender.” Op. of Trial Court, February 14, 1989, at 4.

As a second issue, the appellant points to the fact that unlike Pennsylvania, the New Jersey statute provides that an individual may be convicted for DUI if he “permits another person who is under the influence of intoxicating liquor ... to operate a motor vehicle owned by him or in his custody or permits another to operate a motor vehicle with a blood alcohol content of 0.10% or more____ N.J.S.A. § 39:4-50(a). This section of the New Jersey statute is not at issue in this case, and thus we need not consider whether it would be equivalent to a Pennsylvania DUI offense for the purposes of sentencing. Although provided with ample opportunity to do so, the appellant has never alleged at the trial level, nor does he do so on appeal, that his New Jersey convictions occurred because he permitted another intoxicated person to operate a motor vehicle. As this Court recognized in Commonwealth v. Perkins, 372 Pa.Super. 30, 538 A.2d 930 (1988), if a defendant contests the accuracy of a record of previous convictions, the court must schedule a hearing where the Commonwealth and the defendant may submit evidence regarding the previous convictions. The appellant in the case at bar entered a guilty plea and attended the subsequent sentencing proceeding but never contested the accuracy of the New Jersey record, and never stated that the convictions stemmed from anything other than the appellant’s operation of a motor vehicle while he was under the influence of alcohol. Moreover, we note that the Opinion of the trial court does not mention or address this second contention raised on appeal by the appellant. Thus, it is clear that appellant’s arguments concerning this portion of the New Jersey statute are set forth as part of appellant’s overall argument that a New Jersey and a Pennsylvania DUI offense are not equivalent, and not because this portion of the New Jersey statute served as the factual basis for any of appellant’s New Jersey convictions. Consequently, we find no error in the judgment of sentence entered by the trial court.

Judgment of sentence affirmed.


text:
    568 A.2d 261
    RIVERS EDGE CONDOMINIUM ASSOCIATION v. RERE, INC., and Carl Massara. Appeal of Carl MASSARA.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1989.
    Filed Jan. 12, 1990.

      Allen Weinberg, Philadelphia, for appellant.
    Gary A. Krimstock, Philadelphia, for appellee.
    Before MONTEMURO, KELLY and HESTER, JJ.
   MONTEMURO, Judge:

In this appeal, we review the February 16, 1989, Order of the Court of Common Pleas of Philadelphia County, denying the appellant’s Petition to Open Confession of Judgment. A trial court’s decision regarding whether to open confessed judgment rests within the sound discretion of the trial court and will not be disturbed on appeal absent an error of law or a manifest abuse of discretion. First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 506 Pa. 439, 485 A.2d 1086 (1984). Although the trial court in the instant case determined that the appellant, Carl Massara, had promptly filed the petition to open the confessed judgment, the court found that no meritorious defense had been alleged. We affirm.

The appellant owns two condominium units at the Rivers Edge Condominium, a residential complex located in Philadelphia, Pennsylvania. The definition of a “condominium” is set forth in 68 Pa.C.S.A. § 3103: “Real estate, portions of which are designated for the separate ownership and the remainder of which is designated for common ownership solely by the owners of the portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.” When the appellant purchased his units at Rivers Edge, it is undisputed that he became bound by the terms and conditions of the Rivers Edge Condominium By-Laws. R.R. at 42a. Further, any person acquiring title to a condominium at Rivers Edge automatically becomes a member of the Association of Unit Owners (“Association”). The Association, through its Executive Board, is responsible for the operation, maintenance, repair, improvement, and replacement of the common elements. Id. at 50a. In order to maintain the common elements and to provide other services to the unit owners, such as insurance coverage, the Association must collect a monthly assessment from each unit owner to cover that owner’s proportionate share of the common expenses. Id. at 69a. The By-Laws of Rivers Edge describe a unit owner’s obligation to pay the assessment as follows:

The Unit Owner’s liability for any assessments under this Article VI shall not be abated due to any interruption in his right of occupancy of his Unit, or any interruption in the delivery of any services to the Unit Owner or his Unit or for any other reason whatsoever, except as otherwise specifically set forth in this Article.

Id. at 71a.

Beginning in October of 1986, the appellant refused to pay assessments to the River’s Edge Condominium Association for his two units. As a result, the Association obtained a Confessed Judgment for $20,539.00, the amount of the delinquent condominium assessments at that time. The appellant has consistently maintained that his withholding of the assessments is justified, because the Association has failed to properly perform its obligation to maintain and repair the common elements at River’s Edge. Appellant claims that he has suffered significant property damage to his units from water leaks. He claims that the leaks have damaged furniture, rugs, paint, woodwork, and drywall.

There is no disagreement that the Rivers Edge Condominium has some structural problems, including faulty exterior stucco in certain areas. Indeed, as both parties acknowledge, the Association filed a class action against the engineers, developers, and contractors associated with Rivers Edge. In a partial settlement, the Association recovered funds which are to be used for structural repairs to the common elements. However, appellant’s action in withholding his condominium assessments, even assuming that he has suffered the property damage he alleges, is not justified by the language of the Rivers Edge Condominium By-Laws, the statutes of this Commonwealth, or general public policy considerations.

The Rivers Edge Condominium By-Laws explicitly require that a unit owner continue to pay the condominium assessment even if the owner is not receiving services owed to him, i.e., repairs to the common elements. When an individual purchases a condominium unit at Rivers Edge, he necessarily accepts this provision allowing for no exemption from payment of the assessments. Such a provision benefits all of the unit owners because if all unit owners continue to pay the assessments, maintenance and repairs to the common elements will continue to be possible. A condominium form of ownership in real estate succeeds, because unit owners agree to cooperate in the maintenance of common elements. When the appellant purchased his units at Rivers Edge, he chose to accept the benefits and obligations which accompany this form of real estate ownership. Although no appellate court in Pennsylvania has addressed the issue of whether the owner of a condominium unit may withhold condominium assessments based upon the alleged failure of the condominium association to maintain common elements, this issue was addressed by the Court of Common Pleas of Philadelphia in Society Hill Towers Owners’ Association v. Matthew, 32 Pa.D. & C.3d 244 (1982). There, a judgment by confession had been entered in favor of a condominium association against unit owners who had failed to pay assessments. The unit owners claimed that they failed to pay the assessments due to the failure of the Association to provide required maintenance services. The trial court aptly responded to this contention:

Regarding petitioners’ contention that their obligation to pay was dependent upon the provision of services, nothing in their deed, the Condominium Declaration or Code of Regulations supports it. Under the Code of Regulations, unit owners are required to pay all assessments and have no right to withhold payment for alleged nonprovision of services. Petitioners should have directed their dispute over maintenance services to the condominium council rather than unilaterally withholding assessments.

Id. at 247-248.

We find it significant that nothing in Pennsylvania’s Uniform Condominium Act supports the type of self-help action undertaken by the appellant Massara. Had the Legislature intended to allow owners of condominium units to withhold assessments where owners believe that their condominium association is not performing its obligations properly, we believe the Legislature would have explicitly so provided. Accord Newport West Condominium Association v. Veniar, 134 Mich.App. 1, 350 N.W.2d 818 (1984). As it stands, unit owners must make their objections or complaints known to their condominium association. Further, our Uniform Condominium Act provides that where that unit owner believes that an association has been negligent or has breached a contractual obligation, the unit owner may institute a legal action against the association. See 68 Pa.C.S.A. § 3311. In the present case, if the appellant is unsatisfied or believes that he has been damaged by the conduct of the Rivers Edge Condominium Association, these are the remedies available to him.

For all of the foregoing reasons, we affirm.

Order affirmed.

      . The “common elements” of a condominium are simply all portions of the property other than the units. See 68 Pa.C.S.A. § 3103. It appears undisputed that in the case at bar, the common elements would include, inter alia, exterior surfaces of the condominium units as well as the lawn surrounding the entire complex.


author: HOFFMAN, Judge:

text:
    568 A.2d 264
    Daniel CALLAHAN, Appellant, v. FEDERAL KEMPER INSURANCE COMPANY, a Corporation.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1989.
    Decided Dec. 26, 1989.

      Brian P. Gallagher, Allison Park, for appellant.

      Lisa Ondich, Pittsburgh, for appellee.
    Before ROWLEY, MELINSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order and judgment below reversing an order of the arbitrators and entering judgment in favor of appellee Federal Kemper Insurance Company and against appellant Daniel Callahan for excess wage loss benefits. Appellant raises the following issue on appeal:

I. Whether an exclusion in an automobile insurance policy stating that coverage does not extend to one sustaining injury as a direct result of loading or unloading a motor vehicle is valid under the terms of the Motor Vehicle Financial Responsibility Law.

For the following reasons, we agree that the policy exclusion cannot stand and, accordingly, we reverse the order and judgment below and reinstate the order of the arbitrators.

On September 11, 1985, appellant, employed as a truck driver, drove a tractor trailer loaded with forty bathtubs from Pittsburgh to Chicago. In Chicago, appellant unloaded the bathtubs from the trailer. When lifting the last bathtub, appellant slipped inside the trailer and was pinned up against the inside of the truck, sustaining severe injuries to his back. Because appellant’s injuries occurred in the course of his employment as a truck driver, he received workmen’s compensation benefits in the amount of $1,456.00 per month. On April 20, 1987, appellant filed a claim for excess wage loss benefits under an automobile insurance policy issued by appellee to him. The policy, which afforded coverage pursuant to the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law (the MVFRL), provided for first party benefit protection with work loss limits up to a maximum of $5,000. Although the parties stipulated that appellant’s injuries disabled him for a sufficient length of time to trigger the $5,000 coverage, appellee nonetheless denied coverage because of an exclusion in the policy. While admitting the existence of the policy exclusion, appellant maintained below that the exclusion contravened the Financial Responsibility Law and therefore was invalid.

The case was first presented to the Arbitration Division of the Court of Common Pleas of Allegheny County, where a panel of three arbitrators found in favor of appellant and awarded him $5,000. Appellee appealed to the Common Pleas Court. On July 14, 1987, the parties submitted the action on “Joint Stipulations for Non-Jury Adjudication” and requested that the trial court enter “an appropriate verdict.” The parties also reserved the right “to appeal the verdict/judgment of the trial court” and stated that neither party would be required to file post-verdict motions to perfect an appeal. On December 9, 1988, the trial court entered a non-jury verdict in favor of appellees, which was reduced to judgment. No motion for post-trial relief was filed. On January 4, 1989 this appeal followed.

Initially, we note that the principles governing interpretation of a policy of insurance are well-settled.

The interprétation of an insurance policy is a question of law that is properly reviewable by the court. In construing the policy, we are mindful that ‘policy clauses providing coverage are interpreted in a manner which affords the greatest possible protection to the insured____ The insured’s reasonable expectations are the focal point in reading the contract language.’

Geisler v. Motorists Mut. Ins. Co., 382 Pa.Super. 622, 626, 556 A.2d 391, 393 (1989) (citations omitted).

The central dispute in this case surrounds an exclusionary-clause in appellant’s automobile insurance contract with appellee. The exclusionary provision reads as follows:

We do not provide benefits for bodily injury:
>|e * * * # *
12. Sustained by any person as a direct result of loading or unloading any motor vehicle.

Appellant argues that the policy exclusion, which purports to deny coverage for first party wage loss benefits to those injured while both occupying and unloading a motor vehicle, is invalid under the MVFRL. See 75 Pa.C.S.A. § 1701, et seq. Appellant submits that the tractor trailer he drove to Chicago and unloaded is a “motor vehicle” pursuant to § 1711 and the injuries he sustained arose out of the “maintenance and use” of that motor vehicle as required by § 1712. Appellant maintains that appellee’s exclusionary provision is repugnant to the purpose underlying the MVFRL and is therefore invalid.

Appellee, on the other hand, maintains that its policy exclusion does not contravene the MVFRL because, although insurers must make available first party benefits with respect to injuries arising out of the maintenance and use of a motor vehicle, 75 Pa.C.S.A. § 1712, appellant’s injuries were not sustained as a result of an activity with a “motor vehicle,” but a trailer. Because appellant’s injuries were not causally related to a motor vehicle, appellee submits he is not entitled to first party wage loss benefits.

The first question we must determine is whether the tractor trailer driven by appellant is a “motor vehicle” for purposes of the MVFRL. The MVFRL does not expressly define the term “motor vehicle.” Section 1711 of the MVFRL provides in relevant part that:

[a]n insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedalcycles or like type vehides, registered and operated in this Commonwealth, shall indude coverage_____ with respect to injury arising out of the maintenance or use of a motor vehicle.

Id. (emphasis added). The object of all interpretation of statutes is to ascertain and effectuate the legislative intent. 1 Pa.C.S.A. § 1921; Roach v. Port Auth. of Allegheny Cty., 380 Pa.Super. 28, 33, 550 A.2d 1346, 1349 (1988). In interpreting a statute, we must construe the words of the statute according to their plain meaning and usage, with technical words being given their technical meaning. Adams v. Harleysville Ins. Co., 381 Pa.Super. 370, 553 A.2d 1014 (1989). Moreover, we note that, in determining the intent of the legislature, “when the words are not explicit such intent may be determined by considering among other matters, ‘the former law, if any* including other statutes upon the same or similar subjects.’ ” 1 Pa.C.S.A. § 1921(c)(5).

With these principles in mind, we note that, in construing the now-repealed No-Fault Act, this Court has looked to the Pennsylvania Motor Vehicle Code, 75 Pa.C. S.A. § 101 et seq., for guidance. The definitional section of the Code defines “motor vehicle” as “a vehicle which is self-propelled, except one which is propelled solely by human power or by electrical power obtained from overhead trolley wires, but not operated upon rails.” Id. at § 102. Accord 1 Pa.C.S.A. § 1991. Moreover, under § 102, “vehicle” is defined as “every device, in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” Id. Furthermore, a “trailer” is defined as “a vehicle designed to be towed by a motor vehicle,” and finally, a “truck tractor” is defined as “a motor vehicle designed and used primarily for drawing other vehicles and not so constructed as to carry a load other than a part of the weight of the vehicle and load so drawn.” Id.

Under these definitions, there is no question that an unattached trailer is not a motor vehicle. Likewise, there is no question that a truck tractor is a motor vehicle. The problem however, arises when that trailer is attached to a track tractor which is then operated as one unit. The Code does not specify whether the resulting “tractor trailer” is a motor vehicle or not. Appellee would suggest that the components of the tractor trailer retain their independent identities: thus, if an insured is injured in the “tractor” portion, he would be covered, but if he is injured in the “trailer” portion, he would not. We disagree. The purpose behind the MVFRL is to provide broad coverage to assure the financial integrity of the policyholder, and like its predecessor (the No-Fault Act), the MVFRL is to be liberally construed in order to effectuate that purpose. Omodio v. Aetna Life & Cas., 384 Pa.Super. 544, 545, 559 A.2d 570, 572 (1989); see also Donegal Mut. Ins. Co. v. Long, 387 Pa.Super. 574, 564 A.2d 937 (1989). Consistent with this purpose, courts have refused to impose external restrictions on the rights of claimants. See Couch on Insurance 2d (rev. ed. YEAR) § 45:733 (“the purpose of the financial responsibility acts of protecting insured claimants is not to be defeated by imposing restrictions on the claimant not called for by the statute”) (cited with approval in Donegal Mut. Ins. Co. v. Long, supra, 387 Pa.Superior Ct. at 586 n. 4, 564 A.2d at 943 n. 4.). To accept the tortured construction suggested by appellee, which is not required by the statute, and which is completely at odds with the reasonable expectations of the insured, would defeat this remedial purpose.

In addition, we note that a conclusion that a “tractor trailer” is a “motor vehicle” is not inconsistent with the definitional section of the Motor Vehicle Code. A tractor trailer is a “vehicle” in that it is (1) a device (2) in upon or by which any person or property may be transported upon a highway. Id. at § 102. Moreover, it is a “motor” vehicle in that it is (1) a vehicle, that is (2) self-propelled (at least when the tractor and trailer are attached as in this case), and (3) it does not receive power from overhead wires nor operate exclusively on rails or tracks. Finally, the truck tractor to which the trailer is attached must be registered under the Vehicle Code. 75 Pa.C.S.A. § 1916. Allen v. Erie Ins. Co., 369 Pa.Super. 6, 534 A.2d 839 (1987). See also Pugh v. Government Employees Insurance Company, 380 Pa.Super. 606, 609, 552 A.2d 708, 709-10 (1989) (guideline for determining whether insured is entitled to first party benefits under the Financial Responsibility Law is whether insured vehicle is vehicle of type required to be registered). Accordingly, for the above-stated reasons, we conclude that a tractor trailer is a “motor vehicle” for purposes of the MVFRL.

The remaining question for determination is whether the automobile insurance policy exclusion, which would deny coverage for bodily injury sustained as a result of “loading or unloading” a motor vehicle, is valid under the MVFRL. This question is controlled by our recent decision in Omodio v. Aetna Life and Casualty, 384 Pa.Super. 544, 559 A.2d 570 (1989) (opinion by Rowley, J.). In Omodio, we held that a provision in an automobile insurance policy which excludes from first party benefits coverage bodily injury sustained as a direct result of loading and unloading a motor vehicle contravenes the MVFRL and is therefore invalid. Id., 384 Pa.Superior Ct. at 546, 559 A.2d at 574. In arriving at this conclusion, the Omodio Court found that occupying and unloading a motor vehicle fits within the meaning of “maintenance and use” as specified in § 1712 of the MVFRL; and because the MVFRL requires that insurers provide first party benefits for injuries arising out of the maintenance and use of a motor vehicle, the provision clearly contravened the MVFRL and was invalid. Likewise, we adopt the reasoning in Omodio, and find the exclusionary provision in this case to be invalid.

For the forgoing reasons, we find that a tractor trailer is a “motor vehicle” for purposes of the MVFRL. Furthermore, in light of our holding in Omodio, we conclude that a provision in an insurance policy which excludes from first party benefits injuries resulting from loading or unloading a motor vehicle is unenforceable. Accordingly, we reverse the order and judgment below and reinstate the award of the arbitrators.

Order and Judgment reversed.

      . There is some question as to whether this case proceeded on a case-stated basis, in which the parties failure to file post-trial motions would not effect our ability to rule upon the merits, or as a trial upon a stipulation of facts, in which case the appeal would have to be quashed. Consistent with a case-stated, the parties filed an agreed upon statement of facts to which the court was to apply the law. In this document the parties also reserved their right to appeal and jointly waived the requirement of filing post-trial motions in order to preserve their issues for appeal. On May 31, 1989, the trial court issued an order declaring that the case had been submitted as a case stated and directing that the verdict be treated as a final judgment. In light of these facts, we find that this appeal is properly before us.

        . On February 12, 1984, the Pennsylvania General Assembly repealed the No-Fault Act, see 40 Pa.S.A. § 1009.103 (repealed 1984, Feb. 12, P.L. 26, No. 11, Section 8(a), effective Oct. 1, 1984), and enacted the Financial Responsibility Law.


author: CERCONE, Judge:

text:
    568 A.2d 618
    Angelo JISTARRI and Anthony Jistarri v. Charles FENTRESS, Delaware River Port Authority and Angelo Jistarri. Appeal of Charles FENTRESS and the Delaware River Port Authority. Angelo JISTARRI and Anthony Jistarri, Appellants, v. Charles FENTRESS, Delaware River Port Authority and Angelo Jistarri.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Nov. 28, 1989.
    Reargument Denied Jan. 26, 1990.

      Bruce W. McCullough, Philadelphia, for appellant (at 647) and appellee (at 825).
    William M. Carlitz, Philadelphia, for appellant (at 835) and appellee (at 647).
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is a consolidated appeal and cross-appeal from a final order docketed February 22, 1989 in the Court of Common Pleas of Philadelphia County, Civil Division. The instant case arises out of a traffic accident that occurred on November 28, 1976. Plaintiffs/cross-appellants Angelo and Anthony Jistarri were involved in a collision with a motor vehicle operated by Charles Fentress, a Delaware River Port Authority employee. At the time of the accident, Mr. Fentress was acting within the course and scope of his employment. In May of 1982, a unanimous jury verdict awarded $350,000.00 to Anthony Jistarri and $15,000.00 to Angelo Jistarri for their personal injury claims. These amounts were molded to reflect no-fault benefits and delay damages which resulted in total awards of $417,872.92 to Anthony Jistarri and $11,108.35 to Angelo Jistarri. Defendants/appellants Fentress and the Delaware River Port Authority filed motions for judgment notwithstanding the verdict and requesting the grant of a new trial. The lower court sitting en banc dismissed these motions and entered judgment for the Jistarris. Defendants/appellants subsequently appealed to this court which reversed and remanded the case for a new trial. The Jistarris then appealed to our supreme court, which denied their petition for allocatur on August 28, 1987.

A new trial was held before the Honorable Charles A. Lord sitting with a jury. On March 21, 1988, the jury rendered a unanimous verdict in favor of Anthony and Angelo Jistarri who were awarded damages molded to $225,000.00 and $15,000.00 respectively. No appeal was taken from this verdict and damages were paid to the Jistarris as awarded. Promptly thereafter, the Jistarris requested delay damages pursuant to Pa.R.C.P. No. 238, 42 Pa.C.S.A. On December 15, 1988, the trial judge signed an order granting the Jistarris an undifferentiated total award of $278,068.79 in delay damages. Defendants/appellants then filed a petition to nullify the order because it had not been accepted by the lower court prothonotary. On February 1,1989 the trial judge signed a new order which vacated the unentered order of December 15th, and required the prothonotary to docket delay damages in favor of Anthony and Angelo Jistarri in the amounts of $260,689.47 and $17,379.32 respectively. The February 1st order was not docketed until February 22, 1989.

In response, defendants/appellants timely filed the instant appeal contesting the time periods for which delay damages had been granted and challenging the constitutionality of Rule 238, supra. The Jistarris timely filed a cross-appeal alleging that the lower court erred in reducing the amount of delay damages by excluding certain periods of time for purposes of calculating interest. For the reasons set forth below, we affirm.

Defendants/appellants assert the following claims: (1) that the lower court correctly excluded from its award of delay damages the period during which plaintiffs/cross-appellants pursued a petition for allowance of appeal to our supreme court after a panel of this court had granted a new trial; (2) that the lower court correctly granted delay damages for the remainder of the time between the filing of the complaint and the second verdict; and (3) whether Rule 238, supra, violates the due process rights of defendants qua defendants. Plaintiffs/cross-appellants raise four additional questions: (4) whether Rule 238, supra, as revised November 7, 1988, is applicable to the instant action; (5) whether defendants/appellants are liable for delay damages; (6) whether the entire post-trial and appellate period should be considered in calculating delay damages; and (7) whether the method of calculating delay damages suggested by plaintiffs/cross-appellants is correct.

Our initial inquiry must be whether revised Rule 238 applies to the instant case. Effective November 7, 1988, while the issue of delay damages was pending before the lower court, the Pennsylvania Supreme Court rescinded the original rule and promulgated a new Rule 238. The new rule applies to “actions pending on or after the effective date of this rule in which damages for delay have not been determined.” Rule 238(f), supra. Because the issue of delay damages was pending before the trial court on the date revised Rule 238 was promulgated, it is clear that any such award in the instant case was properly determinable only under the revised rule. Mathis v. United Engineers & Constructors, Inc., 381 Pa.Super. 466, 483, 554 A.2d 96, 104 (1989). See also Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc) overruled on other grounds by King v. SEPTA, 383 Pa.Super. 420, 557 A.2d 11 (1989) & Snelsire v. Moxon, 384 Pa.Super. 85, 557 A.2d 785 (1989) (en banc); and Staats v. Noll, 381 Pa.Super. 162, 553 A.2d 85 (1989) (en banc) (applying revised Rule 238 to cases on appeal because delay damage award was “pending issue” on date new rule was promulgated).

Our next inquiry is whether the lower court correctly determined that defendants/appellants must pay delay damages. Such an award is proper where a defendant has not made an adequate offer to settle pursuant to Rule 238(b)(1) and the plaintiff has not caused delay of trial under Rule 238(b)(2). Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 241, 553 A.2d 443, 446 (1989). The record in the instant case contains no indication that defendants/appellants made any written offer to settle whatsoever. Nor has our review of the record disclosed any indication that plaintiffs/cross-appellants caused a delay of trial sufficient to totally nullify their right to delay damages within the meaning of Rule 238(b)(2). We therefore hold that the trial court properly evaluated the instant case in light of revised Rule 238 and correctly ruled that defendants/appellants are liable for delay damages thereunder..

Both defendants/appellants and plaintiffs/cross-appellants challenge the manner in which the trial court determined the time periods during which defendants/appellants would have to pay delay damages. Defendants/appellants contest the inclusion of the time during which this matter was before our supreme court on a petition for allocatur. Ultimately, defendants/appellants seek to exclude the entire interval between the filing of the original complaint and the date the second verdict was rendered. Plaintiffs/cross-appellants, however, believe that the whole time from the filing of the complaint, including the post-trial and appellate period, should be considered in calculating delay damages.

The two bases upon which a defendant may oppose a plaintiffs motion for delay damages are set forth in subsection (b) of the revised rule. The period of time for which delay damages shall be calculated shall exclude (1) any periods of time after which the defendant has made a written offer of settlement, the offer is continued in effect for at least ninety days or until the commencement of trial, whichever first occurs, the offer is rejected by the plaintiff, and the plaintiff does not recover more than 125 percent of the offer; and (2) any periods of time during which the plaintiff caused delay of the trial. Rule 238(b)(1) and (2); Miller v. Wise, supra, 381 Pa.Superior Ct. at 241, 553 A.2d at 446. The drafters of the revised rule have indicated that no other exclusions are warranted. Id. In the instant case it is quite clear that defendants/appellants made no adequate written settlement offer as contemplated by Rule 238. Thus the only question before us is during what period of time, if any, can plaintiffs/cross-appellants be considered to have caused a delay of trial.

The basic aim of Rule 238 is to alleviate delay in the disposition of cases and thereby lessen congestion in the courts. Sherrill v. Port Authority of Allegheny County, 383 Pa.Super. 104, 115-16, 556 A.2d 450, 456 (1989). While mindful that our decision in this case must foster the clear cut goal of Rule 238 to promote early settlement, id., we must also remember that a verdict winner is entitled to rely on the validity of the judgment rendered and that any delay during the appellate process is not chargeable to that party in subsequent calculations for delay damages. Id., 383 Pa.Superior Ct. at 121-22, 556 A.2d at 459. The plain language of Rule 238 clearly states that a plaintiffs conduct will affect a delay damage award where it “caused the delay of trial.” Schrock v. Albert Einstein Medical Ctr., 386 Pa.Super. 215, 219, 562 A.2d 875, 876 (1989) (equally divided en banc panel). In the instant case, plaintiffs/cross-appellants delayed the start of the second trial by filing a petition for allocatur after this court granted a new trial to defendants/appellants. The trial court correctly determined that this appeal period was not chargeable to defendants/appellants for the purpose of calculating delay damages. However, the grant of a new trial did not relieve defendants/appellants of their responsibility to submit a written, reasonable settlement offer in order to toll the running of interest under Rule 238(b). Sherrill v. Port Authority, supra at 125-26, 556 A.2d at 461. Thus we conclude that the trial court was under no compulsion to exclude the entire time period from the initial complaint until the jury reached its verdict at the second trial. Id. The lower court correctly excluded only the time directly attributable to plaintiffs/eross-appellants’ appeal to our supreme court. See, e.g., Schrock v. Albert Einstein, supra at 220, 562 A.2d at 877 (delay caused by overcrowding of the court system will not be subtracted from the period of delay chargeable against a defendant); Snelsire v. Moxon, 384 Pa.Super. 85, 557 A.2d 785 (1989) (en banc) (delay damages may be awarded to plaintiff who recovers in excess of 125% of defendant’s settlement offer even though defendant caused no undue delay in conduct of litigation); King v. Southeastern Pa. Transp. Auth., 383 Pa.Super. 420, 424-25, 557 A.2d 11, 13 (1989) (en banc) (drafters of revised Rule 238 have not allowed for exclusion of periods of delay not caused by either party). But cf. Babich v. Pittsburgh & New England Trucking Co., 386 Pa.Super. 482, 563 A.2d 168 (1989) (no liability for delay damages where no delay was attributable to defendant and plaintiff had failed to place case at issue in speedy fashion). We therefore affirm the action of the lower court in regard to the time periods selected for the calculation of delay damages.

Plaintiffs/eross-appellants also contend that the lower court correctly employed the method they suggested for calculating interest. Defendants/appellants have not contested the correctness of the calculations themselves, but rather have sought to exclude additional time periods from their liability for delay damages. The trial court has adequately explained the nature and result of the calculations underlying its award of delay damages and we affirm on the basis of the lower court opinion.

The final issue raised in the instant appeal is the constitutionality of Rule 238 as promulgated November 7, 1988. Defendants/appellants claim that the new delay damages rule fails to meet the due process concerns raised by Craig v. Magee Memorial Rehab. Center, 512 Pa. 60, 515 A.2d 1350 (1986). However, this issue is waived because the record certified on appeal does not indicate that they have raised this issue with the lower court or given written notice of their challenge to the Court Administrator of Pennsylvania as required by Pa.R.A.P., Rules 521 and 522, 42 Pa.C.S.A. See Havelka v. Sheraskey, 295 Pa.Super. 326, 441 A.2d 1255 (1982) (challenge to previous Rule 238 was waived on appeal where issue was not raised before trial court and no notification was given to court administrator).

Order affirmed.

      . Jistarri v. Fentress, 355 Pa.Super. 639, 509 A.2d 1324 (1986), allocatur denied 516 Pa. 614, 531 A.2d 780 (1987).

      . We note, however, that in Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 219-20, 562 A.2d 875, 877 (1989) an equally divided en banc panel of this court opined that revised Rule 238 has not superceded Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986) which states that delay damages will not be awarded where the defendant has made an offer which exhausts his resources.


author: PER CURIAM:

text:
    568 A.2d 622
    COMMONWEALTH of Pennsylvania v. David TURNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1989.
    Filed Dec. 14, 1989.
    Reargument Denied Jan. 26, 1990.

      George H. Newman, Philadelphia, for appellant.
    Frances G. Gerson, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

      Before WIEAND, BECK and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

Appellant David Turner was arrested on February 2, 1987, for the murder of Nelson Diaz. Earlier that day, Rosemary Morales, a/k/a Rosa Diaz, responding to a knock at the door, found Turner who wanted to buy drugs from Diaz. Diaz refused to sell the drugs because Turner wanted to purchase a $20.00 bag, but had only $18.50. Subsequently, Morales heard a gunshot. She saw Turner chasing Diaz up the stairs while shooting at him. Turner then ran down the stairs, pointed the gun at Morales and said, “Bitch, if you tell, I’ll kill you too.” Thereafter, Morales found Diaz lying on the steps bleeding. She searched his pockets, but found no drugs. According to Morales, Diaz had at least twelve bags of drugs on his person before the shooting.

That evening, Morales gave a statement to the police. Prior to the preliminary hearing, a man threatened Morales’ life if she testified in this matter. As a result, at the preliminary hearing, Morales said that she did not recall making a statement to the police because she had just finished “free-basing.” She did state, however, that her identification of Turner was positive. At trial, Morales did not deny giving the statement to the police and her testimony was in accord with said statement.

Turner was found guilty of second degree murder and possession of an instrument of crime, generally. For the second degree murder charge, he was sentenced to life imprisonment. No penalty was imposed for the latter charge. Post-verdict motions were denied. This appeal followed.

Turner raises five issues for our review: (1) whether the evidence was insufficient to support a finding of second degree murder; (2) whether the trial court erred in failing to provide the jurors with additional instructions after they reported that they were deadlocked; (3) whether the trial court erred in denying Turner’s motion for a mistrial or to strike the testimony of Assistant District Attorney Barbara Buba; (4) whether the trial court properly overruled Turner’s objections to the prosecutor’s closing argument; and (5) whether Pa.R.Crim.P. 1100 was violated.

First, Turner contends that the evidence was insufficient to support a conviction of second degree murder because there was no evidence that he committed a felony. He argues that the only evidence that a felony occurred was Morales’ testimony, which at most invited speculation of a felony. Further, he asserts that there was no evidence of intent to rob Diaz. As a result, he urges this court to arrest judgment on the second degree murder conviction.

When reviewing the sufficiency of the evidence in a criminal case, the test is whether the evidence admitted at trial is sufficient to prove every element of the crime charged beyond a reasonable doubt. Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 182 (1980). The reviewing court views the evidence in a light most favorable to the Commonwealth as the verdict winner and accepts as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder could properly have based its verdict. Id.

In the instant case, the evidence clearly supports the verdict. Barbara Buba testified as to the statement made by Morales prior to trial. Morales’ testified that Turner shot and killed Diaz after Diaz refused to sell drugs to Turner. She said that Diaz had twelve bags of heroin on his person before he was shot, which were missing after the shooting. Additionally, Turner admitted to being a drug user. This evidence, viewed in a light most favorable to the Commonwealth, is sufficient to support a conviction of second degree murder.

Turner next alleges that the trial court failed “to instruct the jurors to deliberate conscientiously, but not to surrender an honestly held belief merely to reach a verdict, after the jurors had reported that they were hopelessly deadlocked.” Turner moved for a mistrial which was denied. He then requested that the jurors be given additional instructions.

The American Bar Association standards are to be followed when giving jury instructions to deadlocked jurors. Commonwealth v. Spencer, 442 Pa. 328, 337-38, 275 A.2d 299, 304-05 (1971). The standard relevant to the instant case is as follows:

If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a).

Id., 442 Pa. at 337-38 n. 7, 275 A.2d at 304 n. 7.

Here, the jurors were initially instructed in accordance with the instructions set forth in Spencer. (N.T. 4/7/88 at 49). See also Spencer, 442 Pa. at 337-38 n. 7, 275 A.2d at 304 n. 7. After the jurors indicated that they were deadlocked, the trial judge followed the above-mentioned guidelines by instructing the jurors to deliberate further. The trial judge “may ... repeat an instruction as provided in subsection (a).” Id. The use of the word “may” rather than “shall” means that whether the instructions are to be repeated is discretionary rather than mandatory. Therefore, the trial judge did not err in requesting that the jurors continue their deliberations without repeating the instructions.

Turner’s third argument is that the trial court erred in not granting his request for a mistrial, or in the alternative, striking the testimony of Assistant District Attorney Barbara Buba. During the pre-trial stages, Buba handled this case. She was subsequently replaced by Assistant District Attorney Andrea Foulkes. At trial, Buba testified regarding Morales’ testimony at the preliminary hearing.

We note initially that appellant did not object to Buba’s testimony until the day after she testified. The failure to make a timely objection constitutes waiver of the issue. Commonwealth v. Butts, 495 Pa. 528, 434 A.2d 1216 (1981).

In any event, appellant’s argument that an assistant district attorney cannot testify in a criminal case being prosecuted by another assistant district attorney is without merit. Appellant relies upon D.R. 5-101 and 5-102 of the Pennsylvania Code of Professional Responsibility. However, at the time of trial these rules were no longer in effect. The applicable rule now provides:

A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 [Conflict of Interest: General Rule] or Rule 1.9 [Conflict of Interest: Former Client].

Rules of Professional Conduct 3.7(b).

Since neither exception is applicable here, there is no bar to Buba’s testifying.

Turner next contends that the trial court erred in overruling his objections to the prosecutor’s closing argument because “she appealed to the jury’s sympathy, testified as to facts outside the record, invited speculation, and disparaged defense counsel, all of which denied appellant a fair trial.” He cites nine instances of alleged error. Each of these alleged errors is discussed below.

The prosecutor’s closing argument must present the facts in a manner that will lead the jury to a dispassionate and objective evaluation of those facts and will produce a judgment warranted by the evidence. Commonwealth v. Davis, 363 Pa.Super. 562, 583, 526 A.2d 1205, 1216 (1987), allocatur denied, 518 Pa. 624, 541 A.2d 1135 (1988). The prosecutor’s statements must be limited to the facts introduced at trial and the legitimate inferences therefrom. Commonwealth v. Howard, 375 Pa.Super. 43, 53, 543 A.2d 1169, 1174 (1988), allocatur denied, 522 Pa. 573, 559 A.2d 35 (1989). The Commonwealth is allowed reasonable latitude in fairly presenting its version of the case to the jury. Id. When error is alleged, the “unavoidable prejudice test” is applied. Id. Under this test, “[t]he language must be such that its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Id. 375 Pa.Super. at 52, 543 A.2d 1174-75. Allegedly improper comments are evaluated in full context, including the defense closing. Commonwealth v. Frazier, 331 Pa.Super. 128, 134, 480 A.2d 276, 279-80 (1984).

Turner first objects to the remark that “in other crimes there is a victim who will appear in court, where as in the instant case the jury will never be able to hear the victim’s version of the story.” He claims that the comment was to “inflame the passions of the jury and prevent a fair and impartial assessment of the evidence presented.”

Such a remark does not require a new trial. In Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980), the prosecutor stated that the murder victims “will never be able to be brought out into the light of this world.” Id., 491 Pa. at 23, 417 A.2d at 615. The court held that the remark was close to the borderline of permissible argument, but did not mandate a new trial. Id., 491 Pa. at 23, 417 A.2d at 615-16. “The remark did not go beyond pointing out the obvious fact that the victims were dead and did not raise facts or considerations outside the evidence developed at trial. Neither did it convey a personal assertion of belief in [the defendant’s] guilt.” Id., 491 Pa. at 23, 417 A.2d at 616. The comment in Burton is similar to that in the instant case. Although the prosecutor should have avoided such a comment, a new trial is not warranted. Id., 491 Pa. at 23, 417 A.2d 615-16.

Turner’s next three objections relate to statements regarding the witness Morales. He finds error with the assertions: (1) “that many crimes in addition to the instant one are committed before witnesses of less than good repute;” (2) “Morales was a brave woman;” and (3) “Rosa stayed with the dying father of her unborn child.”

A prosecutor has the prerogative of arguing the credibility of the witnesses. Commonwealth v. Harris, 370 Pa.Super. 575, 583, 537 A.2d 24, 28, allocatur denied, 520 Pa. 595, 552 A.2d 250 (1988). The prosecutor can respond to remarks in defense counsel’s closing and to the credibility of witnesses. Commonwealth v. McKendrick, 356 Pa.Super. 64, 75, 514 A.2d 144, 150 (1986), allocatur denied, 514 Pa. 629, 522 A.2d 558 (1987).

The prosecutor’s remarks regarding Morales were in response to defense counsel’s attack on Morales’ credibility. He referred to her as amoral, a prostitute and “Rosa with the six names.” He asked the jury if Morales was the type of person to whom they would give a loan. In addition, defense counsel insinuated that Morales identified Turner only to “play ball” with the Commonwealth. Therefore, the prosecutor’s comments were a fair response to defense counsel’s closing.

Turner alleges that the assistant district attorney argued matters not in evidence. He objects to the following: (1) life gets lost over steak sandwiches, quarters and silly reasons; (2) a possible meeting between Turner and Diaz; and (3) that Diaz may have brandished something at Turner during the alleged encounter the preceding Friday.

As stated previously, allegedly improper comments must be evaluated in full context, including the defense closing. Frazier, 331 Pa.Super. at 134, 480 A.2d at 279-80. Defense counsel argued: “And the claim is that David Turner shot him over $1.50. I would submit to you that that is the most ludicrous theory, that he shot him over that.” (N.T. at 99-100). The prosecutor then stated that life is sometimes lost over a steak sandwich ... over a quarter ... for very silly reasons.” (Id. at 138.) Such a statement is justified in light of defense counsel’s argument.

Turner contends that there is no evidentiary basis for suggesting a meeting between Turner and Diaz prior to the shooting. A prosecutor may, with logical force and vigor, point out fair deductions and legitimate inferences to be drawn from the evidence. Commonwealth v. D’Amato, 514 Pa. 471, 489, 526 A.2d 300, 309 (1987). Turner and Diaz lived only three and a half blocks apart. The evidence revealed that on the morning of the incident, both Diaz and Turner went to the grocery store. Turner attempted to purchase drugs from Diaz shortly after Diaz returned from the store. Circumstantially, it can be inferred that the two met and that Turner was aware that Diaz had drugs to sell. The prosecutor was merely arguing a legitimate inference.

The objection to the statement that Diaz may have brandished something at Turner during the alleged encounter the preceding Friday is waived. Defense counsel objected to this statement at trial at which time the court appropriately charged the jury with a charge prepared by defense counsel. Since no further objection was raised, this issue is not properly before us. See Pa.R.A.P. 302(a).

Turner argues that the following statement by the prosecutor was improper: “So he had every reason in the world to come out and watch as clear as he could while the police activity was going in that direction, perhaps even laughing to himself as to their mis-pursuit of another individual.” (N.T. at 147-48). This statement must be viewed in the context of the defense closing. Defense counsel argued that if Turner was guilty, he would not have been outside his house while the police were pursuing someone else. When placed in context, the prosecutor’s remark was proper.

Turner claims that it was error for the prosecutor to argue that Turner’s defenses were inconsistent. Again, the alleged error must be viewed in context. Defense counsel urged that Turner was innocent; but, he also suggested that if the jury chose to believe Morales, then the crime should be voluntary manslaughter, rather than murder. (N.T. at 116). The prosecutor merely pointed out that a claim of innocence was inconsistent with a claim of voluntary manslaughter.

Turner’s final argument is that Pa.R.Crim.P. 1100 was violated because the Commonwealth was improperly granted an extension three times. He alleges that the Commonwealth did not demonstrate due diligence and alleged judicial delay without any proof.

This argument is meritless. In each of its petitions, the Commonwealth stated that it was prepared for trial, however, no homicide judge was available to try the case. Where the Commonwealth, despite due diligence, cannot timely bring a defendant to trial because of judicial delay, the court properly may grant an extension. Commonwealth v. Colon, 317 Pa.Super. 412, 420, 464 A.2d 388, 392 (1983). Therefore, the Commonwealth’s petitions were properly granted.

Accordingly, the judgment of sentence is affirmed.


author: BECK, Judge: TAMILIA, Judge,

text:
    568 A.2d 627
    Carol H. KING v. Robert E. KING, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1989.
    Filed Dec. 26, 1989.

      Bethania S. Wright, West Chester, for appellant.
    Dennis D. Brogan, Asst. Public Defender, West Chester, for appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   BECK, Judge:

This is an appeal from a final order directing husband appellant to pay spousal and child support. Husband raised the following issues in his exceptions to the master’s report and now raises the same issues on appeal:

1. Whether it was error to conclude that plaintiff [wife] was entitled to support for herself because her conduct was such as to deprive her to entitlement?
2. Whether it was error to fail to attribute unused earning capacity to plaintiff, where she is a registered nurse and refuses to even consider jobs where she could earn more money?
3. Whether it was error to find that the net income of defendant [husband] was Five Thousand Seven Hundred Seventy-Three ($5,773.00) Dollars per month, where the amount is contrary to fact?
4. Whether it was error to attribute the retained cash in defendant’s partnership to him as income?
5. Whether it was error to award support in an amount in excess of the reasonable needs of the recipients thereof?
6. Whether it was error to award support in an amount which exceeds defendant’s take-home earnings?
7. Whether it was error to award support in the amount of Two Thousand Nine Hundred Sixty ($2,960.00) Dollars per month, because that amount is confiscatory?
8. Whether it was error to award spousal support in an amount exceeding one-third of defendant’s income?

The trial court found no merit in any of these contentions and dismissed husband’s exceptions.

Our standard of review is narrow. We may reverse only if we find that the trial court committed an abuse of discretion in awarding spousal support. Morley v. Morley, 283 Pa.Super. 397, 424 A.2d 524 (1981). We find no such abuse of discretion here. The trial court, per Judge Michael Joseph Melody, authored a comprehensive and well-supported opinion that more than adequately addresses and resolves the issues presented. Thus, relying heavily on the reasoning of the trial court, we affirm.

As to issue number one, the trial court appropriately determined that wife’s conduct does not bar husband’s obligation to pay spousal support. The court correctly stated the applicable legal standards as follows:

“It is well settled that the obligation of support continues until it is shown that the conduct of the dependent spouse provides a ground for divorce. Morley v. Morley, 283 Pa.Super. 297 [397], 424 A.2d 524 (1981); Hellman v. Hellman, 246 Pa.Super. 536, 371 A.2d 964 (1977). Moreover, the conduct claimed to nullify the obligation must be proven with clear and convincing evidence. Commonwealth v. Turner, 258 Pa.Super. 388, 392 A.2d 848 (1978); Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974); Commonwealth ex rel. McCuff v. McCuff 196 Pa.Super. 320, 322, 175 A.2d 124, 125 (1961) (‘Proof of guilt must be clear and satisfactory’)” Roach v. Roach, 337 Pa.Super. 437 [440], 442-44, 487 A.2d 27, 28 (1985).
Husband/Father does not specify ... what fault ground for divorce he believes Wife/Mother’s conduct should be subsumed under. It appears from the nature of the testimony that only 23 P.S. 201(a)(6) would arguably have any application to these facts. This provision provides for divorce when the offending spouse shall have “(6) Offered such indignities to the innocent and injured spouse as to render his or her condition intolerable and life burdensome.” But where indignities are the asserted ground for divorce the spouse who asserts that he or she is innocent and injured must not have provoked the alleged indignities unless the other spouse’s retaliation is excessive. Beaver v. Beaver, 313 Pa.Super. 512, 460 A.2d 305 (1983)....

Trial Court Opinion at 24-5.

Analyzing the evidence before it, the trial court then found that the parties had engaged in mutually provocative behavior and that husband had not shown grounds for a fault divcjrce that would relieve his obligation of support. We agree! The trial court committed no error in analyzing the pertinent law and applying it to the facts, nor has husband in any way supplemented his argument on this issue on appeal.

As to the second issue, concerning the court’s failure to attribute unused earning capacity to wife, we also agree w}th the trial court’s conclusions. As the court stated, although a spouse should seek employment commensurate with his/her earning potential, a spouse equally may limit his/her working hours in order to care for his/her children. Trial Court Opinion at 26, citing Newcomer v. Newcomer, 325 Pa.Super. 536, 473 A.2d 197 (1984); Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985), aff'd and remanded on other grounds, 515 Pa. 393, 528 A.2d 1318 (1987). Here, wife testified that she worked a limited schedule and for a lower rate of pay than she otherwise would because doing so enabled her to have the time and flexibility of schedule she needed to care for her children. We find no error in the court’s conclusion that no additional income should be attributed to wife.

Next, husband challenges the court’s finding that husband’s net income was $5,773.00 per month. As to this contention, the trial court reviewed the testimony presented to the master and concluded that there was adequate support in the record for the master’s factual conclusions. We agree and find no ground for reversal of this factual determination.

Fourth, husband alleges that it was error for the court to have allowed retained earnings of the partnership of which husband is a partner to be attributed to husband as income. The trial court concluded that the testimony as to why the partnership was retaining this income was too vague to support husband’s claim that retaining this money was necessary to the partnership. We agree. To allow husband to shield substantial income of his business from consideration in determining his support obligation without more evidence as to a legitimate need to do so would allow spouses with support obligations to evade their obligations by unilaterally reducing their income. This is obviously impermissible under Pennsylvania law. See Commonwealth ex rel. Loring v. Loring, 339 Pa.Super. 92, 488 A.2d 324, 326 (1985).

In husband’s next argument, he alleges that wife and her children were awarded support in excess of their reasonable needs. Husband bases this argument exclusively on the fact that wife requested less support than she was awarded. We find the award of support to be well within the trial court’s discretion. The trial court more than adequately explained its determination of the appropriate level of support as follows:

The amount of support awarded does not exceed the reasonable needs of the wife and the children. In reaching this conclusion we have followed and been guided by our Appellate Courts through their opinions in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987); Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988).
The formula of Melzer is not intended for strict mechanical application. “In interpreting Melzer, the Superi- or Court has adhered to a middle course. We have recognized the validity of the Melzer formula but at the same time we have remained aware of the majorities’ [sic] admonition that the formula should not be inflexibly applied. Therefore, we have required trial courts to calculate the Melzer formula but we have allowed them to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances. Riess v. DeLuca, 353 Pa.Super. 622, 625, 510 A.2d 1239, 1241 (1986); Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324, 513 A.2d 448, 452 (1986).” DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508, 511 (1987).
In the case sub judice, our Hearing Officer used the Chester County Guidelines. We have reviewed his use of said guidelines. In light of Ryan and Shutter, we have determined that the Hearing Officer’s figures are proper and we conclude that the Hearing Officer has properly and flexibly applied the county guidelines consistent with Melzer and Ryan.

Trial Court Opinion at 30-1.

Our review of the record leads us to the same conclusion. It is not the function of this court to substitute its judgment for that of the trial court. We review for abuse of discretion. Morley, supra. Here, the trial court did no more than exercise the flexible approach to the Melzer formula that the decisions of this court have instructed it to employ. In doing so, the court arrived at a just result that provides for the reasonable needs of the wife and children, although higher than what wife estimated these to be, while leaving husband with a more than reasonable amount for his own support. For this court to adjust the trial court’s support calculation in this case would be a usurpation of the trial court’s function.

Husband’s last three allegations are equally without merit. We need say no more than did the trial court:

[Issue 6:]
Neither Melzer v. Witsberger, supra nor the Chester County Guidelines are concerned with “takehome earnings____” Where, as here, the court is concerned with income from a partnership in which Husband/Father is a one-third partner, the determination of the amount of Husband/Father’s “take-home earnings” is too much within Husband-Father’s control to be relied upon by the court.
[Issue 7:]
“An order of support must be fair and not confiscatory and must allow for the reasonable living expenses of the payor. Costello v. LeNoir, supra, 462 Pa. [36] at 40, 337 A.2d [866] at 868 [(1975)]; Dunbar v. Dunbar, supra, 291 Pa.Super. [224] at 230, 435 A.2d [879] at 882 [1981]; Ford v. Fitzgerald, 282 Pa.Super. 25, 26, 422 A.2d 657, 658 (1980).” Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297, 1300 (1983).
The amount awarded in this case for Wife and children is $2960.00 per month. The net income of Husband/Father is $5773.00 per month. Thus, there is $2,813.00 per month remaining for Husband/Father’s expenses after the support payments have been made. According to the budget information supplied [by husband], the personal monthly expenses come to $1,175.46 per month. Thus, the support order provides him with $1,637.00 per month over his average monthly expenses. Such an order is not confiscatory.
[Issue 8:]
[Husband’s] net income was found by the Hearing Officer to be $5,773.00. The Hearing Officer awarded Wife $1,025.00 as spousal support, or approximately 18% of his net monthly income. This amount is substantially under one-third.

Trial Court Opinion at 32-4.

The order of the trial court is affirmed.

TAMILIA, J., concurs and dissents.

TAMILIA, Judge,

concurring and dissenting.

Appellant husband appeals an Order entered May 31, 1988 which approved and affirmed recommendations of a hearing officer and dismissed his exceptions to a proposed Order of support. The support Order directs him to pay support in the amount of $1,025 per month for support of appellee spouse and $1,935 per month for support of the parties’ four minor children. While the majority affirms the trial court on all aspects of the appeal, I would modify the support award and disallow as income the $373 appellant contributes to a pension plan. I also believe the trial court accorded too much emphasis to the “meager” amount wife said was necessary to support her children, and erred in ordering support payments for her in an amount over twice what she testified her needs to be.

In its Opinion, the trial court explains the factual and procedural history surrounding the appeal:

On July 10, 1987, Wife/Mother filed a “Complaint for Support” with the Domestic Relations Section of this Court. On September 8, 1987, a hearing was held on the complaint before Hearing Officer Klein. The Hearing Officer determined the net monthly income of Wife/Mother to be $790.00 and the net monthly income of Husband/Father to be $5773.00. The hearing Officer then determined that Wife/Mother was entitled to support in the sum of $1025.00 per month and directed Husband/Father to pay $1935.00 per month for support of the four children.
The Hearing Officer’s recommendation was to be effective on July 10, 1987. Husband/Father filed exceptions and both parties filed briefs. Oral argument was heard on the exceptions.

Slip Op., Melody, J., 6/1/88, p. 1. The Order in question was entered and husband timely filed the appeal.

As noted in the majority Opinion, husband contends the court erred in eight respects: 1) concluding wife was entitled to support for herself because her conduct was such as to deprive her entitlement; 2) failing to attribute “unused” earning capacity to wife because she is a registered nurse and refuses to consider jobs where she could earn more money; 3) finding the net income of husband was $5,773 per month where that is not the true amount of his income; 4) attributing one-third of the retained cash of husband’s three person physical therapy partnership to him as income; 5) awarding support in excess of the reasonable needs of the wife and children; 6) awarding support in excess of husband’s take-home earnings; 7) awarding a confiscatory amount ($2,960) of support; and 8) awarding spousal support in excess of one-third of his income.

The appellate scope of review of an Order regarding a petition for support is narrow; we may not substitute our judgment for that of the trial court, and we are limited to a determination of whether the trial court committed an abuse of discretion in awarding spousal support. See Motley v. Motley, 283 Pa.Super. 397, 424 A.2d 524 (1981); Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Super. 390, 358 A.2d 102 (1976).

With this in mind, I first address wife’s entitlement to spousal support. “Support, child or spousal, assures a reasonable living allowance to the party requiring support.” Laughlin v. Laughlin, 372 Pa.Super. 24, 28, 538 A.2d 927, 929 (1988). The obligation to support the dependent spouse continues until it is shown that the conduct of the dependent spouse provides a ground for divorce; the conduct claimed to nullify the obligation must be proven by clear and convincing evidence. Roach v. Roach, 337 Pa.Super. 440, 487 A.2d 27 (1985).

I agree with the trial court’s assessment of the matter. Husband did not allege any specific conduct of wife which would constitute a ground for a fault divorce under 23 P.S. § 201(a), and the only subsection which is arguably applicable is 201(a)(6). That subsection provides to the injured and innocent spouse a ground for divorce whenever it shall be judged that the other spouse shall have offered such indignities to the innocent and injured spouse as to render his or her condition intolerable and life burdensome. The trial court found here that husband had not shown grounds which would be sufficient to grant a fault divorce. In Beaver v. Beaver, 313 Pa.Super. 512, 460 A.2d 305 (1983), we said the moving party must prove indignities as well as that he or she is the injured and innocent spouse. We explained:

[Ijndignities may consist of vulgarities, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, or malignant ridicule. Obviously, several of the factors listed above must coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient.

Id., 313 Pa.Superior Ct. at 516, 460 A.2d at 307 (citations omitted). Moreover, the spouse claiming to be innocent and injured must not provoke the other’s indignities, unless the other spouse’s retaliation is excessive. Id. After a thorough review of the record and testimony before us, I see no error in the court’s finding that husband had failed to sustain his burden of proof.

As to husband’s second contention, I agree with the trial court and am not persuaded by appellant’s argument that net income of $19 per hour should have been imputed to wife because she refuses to seek employment as a registered nurse at that rate of pay. Wife testified she works 20 hours per week at a rate of $8 per hour as an office nurse plus an additional 5 hours per week at a rate of $10.75 teaching a class in childbirth (N.T. 9/8/87, pp. 80-81, 85). She further testified that while she was aware she could earn $18 to $20 per hour as an OB/GYN nurse, she had not looked into hospital nursing because the hours would interfere with her care of the children, whereas her current job permits her to be present for the children in the morning when they leave for school and allows her flexibility in her schedule to accommodate the children’s activities (N.T. at 83, 85). In view of Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985), I see no error on the part of the trial court in concluding wife is entitled to support payments by husband because her working hours are limited for legitimate reasons related to the care of her children.

Next, husband urges the court should have found $2,673.35 per month to be his income, and he argues the court erred in attributing to him net monthly income of $5,773. The trial court made its calculation in the following manner:

The Husband/Father’s accountant testified without contradiction that his net monthly income for 1987 would be $5400.00 per month. (N.T. 23). He also testified that there was a $5,730 contribution to a retirement plan being made for the year. The Hearing Officer divided by twelve (12) months the $5,730.00 to arrive at the figure of $477.50 per month for the retirement plan. He then subtracted $104.50 to allow for taxes. The resulting net monthly figure for this retirement plan was $373.00. The Hearing Officer added this $373.00 per month to the $5,400.00 per month to arrive at a total net figure of $5,773.00 per month.

Slip Op. at 5.

Appellant argues the court improperly used a net income figure of $5,400 (plus the retirement contribution) because it is not the amount he will receive since the partnership is retaining income for expansion, but it is the figure upon which his taxes are calculated. Instead, he contends the court should have used as his income a $1,000 weekly draw from the three-way partnership, less $440 withheld for taxes, resulting in a total net income of $560 per week. Moreover, husband says a 44 per cent tax would be imposed on his weekly tax-deferred retirement if the money were to actually be received, so that the court should have attributed a retirement figure of $61.71 per week after taxes to him. He calculates this by allocating the $5,730 over 52 weeks, for a total of $110.19 per week, less 44 per cent, $48.48 in taxes, resulting in an additional $61.71. He urges this figure, added to his weekly draw of $560 per week, should have led the court to conclude he receives $621.71 per week or $2,673.35 per month, in income.

While the accountant who serves the partnership and the parties testified on direct examination that husband receives a $1,000 weekly draw, of which he must set aside $440 for tax purposes (N.T. at 6, 9-10), he also testified on cross-examination that husband’s projected net income for 1987 would be $65,000, or $5,400 per month. On redirect, the accountant attempted to explain that appellant would not be receiving $5,400 per month from the business because “[tjhere are debt obligations which the partnership must pay, which they incurred at the inception of the partnership, and they are not deductible for tax purposes. Plus there is also the reserve of funds necessary for the construction of the new physical plant.” (N.T. at 26-7.)

My careful review of the record and exhibits which include exhibit PI, the statement by appellant’s personal and the partnership’s C.P.A., convinces me the trial judge was correct in finding appellant failed to prove the monthly net income of $5,400 was substantially reduced by payment into a reserve fund, payment on partnership debts and taxes. Those accounts establish that the net income of the partnership through the first seven months of 1986 was $122,710, whereas for 1987 it was $289,090. Total partnership withdrawals for the first seven months of 1987 were $120,538 or projected for the full year, $68,880 per partner. At the same time working capital, after the draw, increased by $109,000 for an end balance of $155,000 for the seven month period. During the same period, funds applied to acquire fixed assets and to reduce long term debt amounted to $9,453 for seven months, or as projected to twelve months would amount to $16,205. The accountant testified Mr. King’s anticipated gross income in 1987 was $89,190 (H.T. 9/8/87, p. 22-23), resulting in net income after taxes and social security of $65,000. This is the figure from which the court derived the husband’s net income available for support consideration. I find no error by the trial court in finding the net income of the appellant to be in excess of $5,400 per month. As discussed infra however, I would disallow the $878 per month added which was a reasonable payment to a pension plan.

Appellee/mother, in her budget submission, documented a total need for herself and the four children of $2,310 per month, which was uncontested by the husband. The court, applying the Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), guidelines and referring to the Chester County guidelines, made an award of $1,025 for the spouse and $1,985 for the children for a total award of $2,960. The trial court used as a basis for its computation of the husband’s ability to pay a monthly net income of $5,773 per month, which included $5,730 for the year ($477.50 per month) contributed to the husband’s pension plan less taxes. I believe the trial judge erred in disallowing this amount as a necessary deduction from gross income. A reasonable pension plan, beyond social security contributions, would appear to be a prudent and desirable expenditure in today’s world. Such an investment is to be considered deferred compensation if paid by an employer and is subject to some form of distribution as marital property at the time of divorce. There is no reason that this fund should not be treated in a similar manner. Thus $373 ($477.50, contribution per month less $104.50 in taxes) should be subtracted from the $5,773 monthly net to bring us to a net income of $5,400 per month. Since the pension plan is not excessive and it cannot be imputed to the husband that he has sequestered an inordinate amount of money for that purpose, to reduce the amount available for support it should be allowed. In a rapidly changing economic environment in which less reliance can be had on government programs for retirement, and the present thrust is toward encouraging individual efforts to provide for security upon retirement, this cannot be ignored.

Also, I find the trial court sua sponte attributed too much weight in holding the wife’s expenses to be “meager” when this apparent effect was due to a majority of the household expenses being attributable to the four children. While this is a formula consideration, it serves to minimize the amount the wife needs to expend out of her own funds for housing, utilities and other amenities for the same quantity and quality of these necessities which would be a much higher ratio if there were fewer children. Thus I believe the apportionment must be adjusted to fit these two considerations.

Applying these considerations to the Melzer formula, I derive the following:

Amount available for support from mother, whose needs are set at $460

Net monthly income $790

Needs of mother - 460

Available for support $330

Amount available for support from the father whose needs are set at $1,175.46

Net monthly income $5,400.00

Needs of father - 1,175.46

Available for support $4,224.54

The Melzer calculation, to determine appellant’s total support obligation, therefore, produces the following:

F.A.I. $4,224.54 x 1,850 (childrens’

M.A.I. + F.A.I. $330 + $4,224.54 needs) = $1,715.95.

This figure is only a $4.55 deviation from that calculated by the trial court using the Melzer formula (Slip Op. at 8), although it is $219 per month less than the award by the hearing officer and ultimately the trial court.

The Melzer calculation, to determine mother’s support obligation, is as follows:

M.A.I. _$330_ X 1,850 (childrens’

M.A.I. + F.A.I. $330 + $4,224.54 needs) = $134.12.

I do not find justification for the award of the wife of $1,025 per month. She set her own need at $460 per month which is admittedly low, but as explained above, is absorbed in part by the sharing of the home and expenses for the children, largely paid by the husband.

Looking to the standard applied to support for a spouse and applying the one-third rule to the $2,508.59 which would be left to husband after paying his share for child support, a reasonable and probably maximum amount payable for spousal support would be $836. Adding $836 to the $195.88 remaining after appellee’s contribution of $134.12 to child support, the total amount of the mother’s spousal share would be $1,031.88. This would leave appellant with $1,672.59. Such an arrangement would not be confiscatory.

In view of the fact that I believe virtually all of the findings and assumptions by the trial judge are correct, except as I would modify following my review of the record, I would affirm the Order except as noted above, with the wife to receive spousal support in the amount of $836 and the children to receive child support in the amount of $1,715.95 per month, for a total support Order of $2,551.95 per month. While it is customary to remand for reconsideration by the trial court when the Order entered is not affirmed, where as here the change is based on figures documented on the record and requires only a substitution of those figures for those used by the court, judicial efficiency and economy suggest that I would enter the Order as I believe it should be modified.

      . In dissent, Judge Tamilia addresses an additional issue, namely whether the trial court erred in approving the master's inclusion of husband’s monthly pension contribution in husband’s gross income available for support. As the list of issues set forth in text above reveals, this issue was not raised by husband either in his exceptions to the master’s report or in the statement of questions section of his brief to this court. Nor is this issue argued in the body of husband’s brief on appeal. Thus, the issue is clearly waived and we express no opinion on it. Pa.R.C.P. 1910.12; Pa.R.App.P. 2116(a).

      . Husband’s argument that the amount of support is more than one-third of his net income is based on his view that the net income figure found by the Hearing Officer was too high. Thus, husband argues, if that figure is adjusted downward, then the support award is one-third of the adjusted income figure. Since we have found that the Hearing Officer’s net income figure was supported by the evidence, the support award is only 18% of husband’s net income, as correctly found by the Hearing Officer.

      . He apparently derives this 44 per cent tax figure from his accountant’s testimony that husband must reserve $440 out of every $1,000 for tax purposes.

      . The majority does not discuss this matter, relying on the master’s factual conclusions.

      . Wife testified the household food expense is only $100 per month because she cares for a large garden and cans and freezes most of the vegetables and fruit used by the family throughout the year (N.T. at 77). When the trial court derives a legal conclusion based on an improper factual determination, as established by the record, an appellate court may correct such a finding. The majority ignores this fundamental principle of appellate review and its reliance on the trial court’s incorrect assumptions defeats the purpose of review and works an injustice on the party seeking relief.

      . Father’s available income = F.A.I.
      Mother’s available income = M.A.I.

      . Ibid.