author: TAMILIA, Judge:

text:
    516 A.2d 354
    William GERACE and Gerace Jewelers, Inc. & Nicholas Ferro & Essex Ring Corp., v. HOLMES PROTECTION OF PHILA., a/k/a Holmes Protection, Inc. and Walter Kidde Company, a/k/a Kidde Ultrasonic Inc. Appeal of Nicholas FERRO and Essex Ring Corporation.
    Superior Court of Pennsylvania.
    Argued June 18, 1986.
    Filed Sept. 4, 1986.
    Reargument Denied Oct. 24, 1986.

      Myles G. Glasgow, Philadelphia, for appellant.
    Anne T. Hopkins, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order of the lower court granting summary judgment in favor of appellee/defendant Holmes Protection, Inc. and against appellant/plaintiffs Nicholas Ferro and Essex Ring Corporation.

In August of 1969, plaintiffs William Gerace and Gerace Jewelers, Inc., entered into a contract with appellee Holmes Protection, Inc., which provided for the installation and maintenance of a burglar alarm system at the Gerace Jewelry Store. The alarm system had been manufactured by defendant Walter Kidde Company. The contract contains, inter alia, a limitation of liability clause in Paragraph 10 which provides that appellee Holmes Protection, Inc.’s liability be fixed at a sum equal to a one-year service charge under the contract. Paragraph 10 of the contract provides in relevant part:

If there shall, not withstanding the above provisions, at any time be, or arise any liability on the part of the company by virtue of this agreement, or because of the relation hereby established, whether due to the negligence of the company or otherwise, such liability is and shall be limited (unless the company, in consideration of the additional charge, agrees otherwise in an amendment hereto) to a sum equal in amount to the electric protective service charge hereunder for the period of service—not to exceed one year—which sum shall be paid and received as liquidated damages.

A supplemental agreement was executed between the parties on December 1, 1971 and provides for a service charge of $60 per month.

On December 27, 1972, a burglary took place at the Gerace Jewelry Store and the stolen jewelry included a sample case, valued at $25,502.19, belonging to appellants Nicholas Ferro and Essex Ring Corporation. At his deposition, Mr. Ferro testified that in December of 1972, William Snyderman, a sales representative of the Essex Ring Corp., had in his possession a sample line of rings owned by the Essex Ring Corp., and that this sample was left by Snyder-man in the Gerace Jewelry Store on the evening before the store was robbed. However, neither the Essex Ring Corp. nor Ferro had any contract or agreement with Holmes Protection of Philadelphia with respect to the security alarm system in the Gerace Jewelry Store (Deposition Testimony, 12/12/80, pp. 10, 11).

In March of 1975 plaintiffs filed a complaint in trespass and assumpsit alleging in substance that as a result of the negligence and breach of contract of the defendants, the property of the plaintiffs had been burglarized in the amount of $76,350.21. Defendant/appellant Holmes filed an answer denying all allegations of negligence and breach of contract contained in the complaint, and by way of new matter, averred that the contract at issue contained a limitation of liability clause, thereby limiting its potential liability to the amount indicated on the contract; $720, an amount equal to the one-year service charge.

On October 21, 1981, appellee Holmes filed a motion for summary judgment as to appellants Nicholas Ferro and Essex Ring Corporation. Appellee Holmes alleged there was no relationship between Holmes and Nicholas Ferro or Essex Ring Corporation under which Holmes owed a duty of care to either appellant. The trial court granted the motion based upon this Court’s decision in LoBianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981). Accordingly, the lower court dismissed, with prejudice, any and all claims by appellants Ferro and Essex against appellee Holmes. This appeal followed.

Appellants now contend LoBianco is not controlling in the instant action and summary judgment was improperly granted in that a genuine issue of material fact exists regarding whether the limitation of liability clause contained in the contract is valid and enforceable. Appellees assert that there is no genuine issue of material fact relative to the contract since all parties, including appellant, have pleaded the existence of the contract. Appellees further argue that the question of whether the limitation of liability clause contained is valid and enforceable, is a question of law which was definitively resolved by this Court in LoBianco. Most importantly, appellees contend that no legal duty was owed to Ferro or Essex either in contract or tort, and thus, summary judgment was properly entered.

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). The court’s function is not to decide issues of fact but to determine whether there is an issue of fact to be tried. The court must examine the record in the light most favorable to the nonmoving party, with any doubts resolved against the moving party. Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984).

While agreeing with the lower court that summary judgment was properly granted, we base our conclusion on the ground that at the time the burglary occurred appellee Holmes owed no legal duty, either in contract or tort, to Ferro or Essex. As an appellate court, we may affirm the lower court by reasoning different than that used by the lower court. Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984) (petition for allowance of appeal denied). Since we are holding that appellants have no rights pursuant to the contract between plaintiff Gerace and appellee Holmes, a discussion of the validity of the alleged “limitation of damage” clause in the contract is unnecessary and irrelevant. Thus, while LoBianco may be pivotal in the related action between Holmes and Gerace, it has no application in the case sub judice.

There was no legal duty owed to either Ferro or Essex as a third party beneficiary to the contract between Gerace and Holmes. It is undisputed that neither Ferro nor Essex had any contract or agreement with Holmes regarding the security system in the Gerace Store. Since 1950, it has been the law in Pennsylvania that for a third party beneficiary to have standing to recover on a contract, both parties to the contract must express an intention that the third party be a beneficiary to whom the promisor’s obligation runs in the contract itself. Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950) (plurality Opinion). Clearly, Ferro and Essex can point to no affirmative undertaking to protect their property evidenced in the contract between Holmes and Gerace.

However, the Pennsylvania Supreme Court recently abandoned Spires as the exclusive test of what constitutes a third party beneficiary. The court, in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983) looked to the Restatement of Contracts 2d (1981), specifically § 302, in order to determine third party beneficiary status.

Section 302 states:

Intended and incidental beneficiaries
(1) unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
(2) an incidental beneficiary is a beneficiary who is not an intended beneficiary.

Even under this more liberal standard, appellants cannot recover as third party beneficiaries.

First, for any suit to be brought, the right to performance must be “appropriate to effectuate the intentions of the parties.” This requirement "... leaves discretion with the ... court to determine whether recognition of third party beneficiary status would be ‘appropriate.’ ” Guy, 451 Pa. at 60-61, 459 A.2d at 751. Even assuming this to be an appropriate situation for inferring the parties to the contract intended appellants to benefit from the agreement, the additional requirements of the test have not been met.

Under subsection (a), there was no obligation running from Gerace to either Ferro or Essex to pay money for an existing debt when the contract was made. Additionally, under subsection (b), there is no evidence that at the time of contracting, Gerace intended to give the benefit of the promised performance to either Ferro or Essex. Ferro testified that he had no knowledge of the dealings between Holmes and Gerace and further, had no information concerning the burglar alarm system. Moreover, it is unimportant whether Ferro or Essex qualify as incidental beneficiaries. Comment to section 302 of Restatement (Second) of Contracts (1981) states:

(e) Incidental Beneficiaries. Performance of a contract will often benefit a third person. But unless the third person is an intended beneficiary as here defined, no duty to him is created ...

Likewise, we find appellee Holmes owed no legal duty in tort to either Ferro or Essex. It is a fundamental rule of tort law that a negligence claim must fail if it is based on circumstances for which the law imposes no duty of care on the defendant. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Boyce v. United States Steel Corporation, 446 Pa. 226, 285 A.2d 459 (1971) (plurality Opinion). Section 324A of the Restatement of Torts 2d (1977) states the general rule regarding liability to a third person who is injured as a result of defendant’s negligent performance of an undertaking to perform services for another.

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The facts of the instant action do not present a situation in which appellee Holmes should have recognized that any of the services rendered to Gerace Jewelers, Inc. would be necessary for the protection of property owned by Ferro or Essex. Appellant alleges there is no question that William Snyderman, the sales agent for Ferro and Essex, clearly relied on Holmes to protect the Gerace premises and that such reliance formed the primary basis for his leaving the merchandise overnight. Nicholas Ferro’s deposition testimony belies this contention. Mr. Ferro testified that he had no knowledge whatsoever concerning the burglar alarm system’s placement at the Gerace Jewelry store. He further testified that he had no knowledge concerning the dealings between Mr. Gerace and Holmes (Deposition Testimony, 12/12/80, p. 28-29). In this case, appellants clearly fail to meet the reliance requirements of section 324A.

Lastly, appellants assert that they were denied due process as summary judgment was granted without oral argument as required by Pa.R.C.P. 211.

Rule 211, in pertinent part, provides: “Any party or his attorney shall have the right to argue any motion and the court shall have the right to require oral argument____” Our research indicates that this matter was fully considered in City of Philadelphia v. Kenny, 28 Pa.Commw. 531, 369 A.2d 1343 (1977); cert denied 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281, reh’g denied 434 U.S. 1025, 98 S.Ct. 754, 54 L.Ed.2d 774 (1978).

There, the eminent late jurist Judge Harry Kramer, writing for the court, stated:

There are no court decisions on the issue of whether 211 is a qualified or unqualified right to oral argument. However, in his discussion of Rule 211, Anderson states:
Rule 211 gives every party or his attorney a qualified right to make an oral argument on any motion. The court by local rule may regulate the length of time of such arguments. In a given case the local court may also dispense with oral argument if it so desires and dispose of the case on the record or upon briefs. The parties may also waive oral argument unless it is required by the court. 1 A. Anderson, Pennsylvania Civil Practice § 211.1 (third edition 1975). (Emphasis added.)

Kenny at 555, 369 A.2d at 1356. See also Nigrelli v. Cody, 281 Pa.Super. 156, 421 A.2d 1195 (1980).

In this case, there were extensive depositions and affidavits submitted to the court, and based on those, the court was amply provided with the facts, allegations and legal positions upon which both parties founded their pleadings. Oral argument, at best, would be redundant after the entry of summary judgment and, therefore, we do not find any abuse of discretion in its denial. Since motions may be of numerous varieties, with many degrees of supporting data (or lack of it), discretion must lie with the trial judge to determine whether issues are raised which can best be resolved by briefs and/or oral arguments. We fail to see, in this case, that oral argument would in any way enhance or alter the presentments already before the court and, therefore, find no prejudice to appellants in its denial.

Even in the criminal law context, failure to grant a procedural right is cured when some part of the overall procedure provides the opportunity to address that right. See Commonwealth v. Ruza, 511 Pa. 59, 511 A.2d 808 (1986) (failure to grant a defendant a preliminary hearing not fatal when hearing on Omnibus Pre-Trial Motion determined prima facie case existed).

Appellants, in alleging their due process rights were violated, raise a constitutional issue which was not presented to the court below. It is clear that even constitutional issues will be waived where they have not been raised in the lower court and are argued for the first time on appeal. Patton v. Republic Steel Corp., 342 Pa.Super. 101, 492 A.2d 411 (1985). Appellants have had ample opportunity to file a petition for reconsideration with the lower court addressing their constitutional challenge.

Even had the constitutional issues been properly before us, since the appellants have failed to establish any manner in which denial of oral argument was a denial of due process, and constitutional issues must be detailed with particularity, we need not consider it here.

For the reasons stated above, summary judgment is affirmed.

      . We note that appellee Holmes had also filed a motion for summary judgment against plaintiff Gerace, but the trial court, in an Order dated February 21, 1981 denied that motion. At the time the trial court denied the motion, the decision in LoBianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981) had yet to be handed down. Therefore, in February of 1985, Holmes filed a Motion for Remand with this court in order to determine whether LoBianco should apply to plaintiff Gerace’s claims against it. This Court entered an Order granting Holmes’ motion for remand for sixty days from the date of the Order (March 29, 1985). However, it appears the trial court has yet to take any action.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    516 A.2d 359
    The ESTATE OF Gilbert WILLIAMS by Barbara LORGAN, its Executrix and Barbara Lorgan, Individually v. Ivan WILLIAMS and Paul Williams, Appellants.
    Superior Court of Pennsylvania.
    Argued March 6, 1986.
    Filed Oct. 1, 1986.

      Robert N. Bryan, Honesdale, for appellants.
    Lee C. Krause, Honesdale, for appellee.
    Before CAVANAUGH, BECK and JOHNSON, JJ.
   BECK, Judge:

The central issue on appeal is whether a devise of real property which is not in conformance with the applicable zoning ordinance is void. We find it is not void.

Gilbert Williams died testate on August 8, 1979. He made a holographic will by completing blank spaces in his own hand on a printed form. He disposed of his estate as follows:

To Barbara Williams, my house + farm and all accessories 31 acres
To Paul Williams 1 acre to Park Trailor also 1-22 single shot rifle
To Ivan Williams 1 acre to Park Trailor also 1 Pickup Truck GMC 1973
To Dorothy Miller 1- 1978 [illegible] 4 door sedan
To Ivan Williams ) Divide any
Paul Williams ) Money that I
Dorothy Miller ) Have
Barbara Williams or Lorgan ) Equally

The will appointed his daughter Barbara as executor. Barbara, as executor, conveyed the real property from Gilbert’s estate into her own name individually, excepting two one-acre life estates in the names of her brothers, to be located on the farm at her discretion at some future time. Barbara also distributed the remainder of the estate by transferring $1,838.18 to each of the named legatees.

In his holographic will, Gilbert attempted to devise one-acre tracts of land to each of his sons Ivan Williams and Paul Williams. The zoning ordinance in effect at the time of distribution of the estate required minimum lot size in excess of one acre.

In order to procure a judicial resolution of the devise of the real property, Barbara, as executor of the estate, instituted a Complaint for Distribution in Kind. 20 Pa,C.S.A. § 3534. In her complaint, Barbara alleged that the devises to her brothers failed on either one of two theories: the will lacked specificity as to the description of each brother’s one-acre tract or, alternatively, the conveyance was illegal because it violated the Damascus Township Zoning Ordinance which required lot sizes to be a minimum of approximately 1.4 acres.

Thereafter, in October, 1984, Ivan and Paul filed a Complaint in Equity seeking to invalidate Barbara’s deed and requesting that title be reconveyed to the estate. The actions were consolidated, and the trial court disposed of the matter in its order of April 22, 1985, which is on appeal.

In its February 5, 1985 Adjudication and Decree Nisi, the Orphan’s Court division of the Court of Common Pleas of Wayne County awarded the sons a two-acre tract as co-tenants in fee simple instead of one-acre tracts each as Gilbert directed in his will. In response to exceptions, the court reconsidered, and in its order dated April 22, 1985, it voided the devise to Paul and Ivan. The court stated, “[t]he Court further finds that the intent of Gilbert Williams, to give each son one (1) acre to park trailer cannot be carried out, because the applicable subdivision ordinance requires a minimum lot size of sixty thousand (60) square feet.”

In interpreting a will, a court places great emphasis on the testator’s intent. In re Janney’s Estate, 498 Pa. 398, 446 A.2d 1265 (1982); Matter of Estate of Coniglio, 324 Pa.Super. 527, 472 A.2d 205 (1984). However, the testator’s intent must appear with reasonable certainty, such that little doubt exists as to the testator’s intent. Estate of Dulles, 494 Pa. 180, 431 A.2d 208, 17 ALR 4th 1279 (1981); In re Hamilton’s Estate, 454 Pa. 495, 312 A.2d 373 (1973).

If the intent is not clear, certain presumptions are applied to the construction of the will. First among these presumptions is that a testator intends to dispose of his entire estate and not to die intestate as to any part of it. Hill’s Estate, 432 Pa. 269, 247 A.2d 606 (1968). A will must be read to give effect to every portion of it, so as not to render any provision nugatory and futile. Farrington Will, 422 Pa. 164, 220 A.2d 790 (1966); Funk Estate, 353 Pa. 321, 45 A.2d 67 (1946). Also, an “heir or statutory distributee will not be disinherited except by express words or necessary intendment.” Knox’s Estate, 328 Pa. 188, 195 A.2d 34 (1963).

With these principles in mind, the trial court first examined whether Gilbert intended to leave his sons life estates, as Barbara contends, or intended to leave them one-acre tracts in fee, as the devisees contend. The court noted that devises are presumed to convey the entire estate unless there are specific indications to the contrary. See 20 Pa.C.S.A. § 2514(3).

The court found in its February 5, 1985 Adjudication and Decree Nisi, and we agree, that Gilbert intended to devise to be in fee simple. The will contains no indication that Gilbert intended to devise less than a fee simple estate. It did not contain a devise over to another following his sons’ deaths; nor did it contain any words of limitation such as ‘for his life’ or ‘for as long as he lives.’ See Dilworth v. Gusky, 131 Pa. 343, 18 A. 899 (1890); accord Kautz v. Kautz, 365 Pa. 450, 76 A.2d 398 (1950): Lipman’s Estate, 336 Pa. 570, 10 A.2d 385 (1940); Bennett v. Sutphen, 266 Pa. 168, 109 A. 669 (1920). Therefore, the court properly reasoned that the two specific devises of one-acre tracts to Ivan and Paul Williams were estates in fee simple absolute.

The court, in the April 22, 1985 final order, determined that although Gilbert intended his sons to receive one-acre estates in fee simple, such devises failed for illegality inasmuch as they violated the zoning ordinance in effect at the time of distribution.

We do not agree that the devises failed because they violated the zoning ordinances. Zoning ordinances regulate the use of property and do not control the holding of land. Thus a developer, for example, may hold large tracts of land that are not subdivided in accordance with the zoning ordinance. In the same way, an individual may hold tracts of land that are smaller than allowable under the zoning ordinance. Enforcement of the zoning ordinance is triggered at the point where the individual or the developer intends to use or make improvements on the land.

Zoning pertains to a permissible use of land, not to an individual’s right to hold land.

Zoning regulations ‘concern the physical use to which the land is put.’ Zoning laws, enactments under the police power, are not concerned with method of ownership of property. Zoning ordinances regulate usage; if a use is permitted, a municipality may not regulate the manner of ownership of the legal estate____
Zoning law has no application to the resolution of disputes between private parties over real estate interests.

County of Fayette v. Cossell, 60 Pa.Commw. 202, 204, 430 A.2d 1226, 1228 (1981) (citations omitted).

A zoning board is empowered to enforce the use of property in a manner consistent with the provisions of a zoning ordinance. A zoning ordinance per se cannot prevent an otherwise valid devise of a specific quantity of property no matter how large or how small. However, a zoning board does have the authority to refuse to permit the holder of the land to use or improve a tract smaller than that mandated in the zoning ordinance or to refuse to permit a developer to improve land not subdivided according to the zoning ordinance. Nothing in the zoning ordinance can make illegal the devise of one-acre tracts to Paul and Ivan. Therefore, the devises to Paul and Ivan can not be considered void as violative of the zoning ordinance. A devisee who receives real estate not in conformity with the zoning ordinance can hold the land unimproved, can apply for a variance to the zoning ordinance so that he can improve the land or can sell the land.

Appellants Ivan and Paul also challenge the court’s assessing the cost of surveying the land against them. They assert that the survey of the property is an allowable cost of administration which the estate must bear and cite Bosico Estate, 2 Fid.Rep.2d 416 (1982), for the proposition that such an expense is allowable when charged to the estate. We find appellant’s reliance on Bosico misplaced. The implicit holding of Bosico is that survey costs may be taxed at the court’s discretion. We conclude that the court did not abuse its discretion in assessing the costs against the intended devisees.

In the absence of a mandate in the law assessing the cost to the estate, we cannot say that the trial court abused its discretion. The court recognized that Ivan and Paul were the intended beneficiaries of the devises, and therefore, it was proper for them to bear the cost of the survey.

In conclusion, we reverse the court’s holding that the devises fail because they violate the zoning ordinance. We affirm the court’s assessment of the costs of surveying the property to Paul and Ivan. We affirm that the court’s holding that the testator intended to devise estates in fee simple to Paul and Ivan.

We remand for further proceedings in accordance with this opinion. Jurisdiction is relinquished.

      . The order of the court does not directly respond to Ivan’s and Paul’s prayer that the deed recorded by Barbara be declared invalid. The recorded deed established fee title in Barbara and excepts two one acre life estates for Paul and Ivan.


author: WIEAND, Judge: BECK, Judge,

text:
    516 A.2d 363
    Judith I. CAMPBELL, Appellee, v. Charles J. CAMPBELL, Appellant. Judith I. CAMPBELL, Appellant, v. Charles J. CAMPBELL, Appellee.
    Superior Court of Pennsylvania.
    Argued April 7, 1986.
    Filed Oct. 6, 1986.

      Lester L. Greevy, Jr., Williamsport, for appellant in No. 325 and for appellee in No. 186.
    Elliott B. Weiss, Williamsport, for appellant in No. 186 and for appellee in No. 325.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   WIEAND, Judge:

Presently before this Court are cross-appeals from an order directing equitable distribution of marital property. Because of a unique procedural posture, however, we must first determine whether the decree of equitable distribution is properly before us for review.

Charles J. Campbell and Judith I. Campbell were married on November 28, 1963. In June, 1980, they separated; and on February 25, 1981, Judith commenced an action for divorce under the Divorce Code of 1980. She requested a section 201(c) divorce and advanced various economic claims. On May 19, 1983, Charles filed a counterclaim in which he alleged a cause of action for a fault divorce on grounds that Judith had been guilty of a course of conduct constituting indignities to his person. At a hearing before a master on July 18, 1983, the parties, by their respective counsel, stipulated that if Charles were to file a section 201(d) affidavit, Judith would not contest the affidavit, and a section 201(d) divorce could be entered. Charles filed a section 201(d) affidavit on July 19, 1983, and no challenge was thereafter made by Judith.

In the master’s report, filed December 2, 1983, the master recited that the parties had stipulated to an uncontested section 201(d) divorce. The master’s recommended order, however, did not contain a decree in divorce. Instead, the recommended order was limited to a proposed scheme for distributing marital property. Both Judith and Charles filed exceptions to the master’s report. On June 1, 1984, the trial court, after considering the exceptions of the parties, entered an order distributing the marital property. The trial court’s order, however, did not include a decree of divorce. Charles filed an appeal in this Court from the order of equitable distribution; Judith filed a cross-appeal.

When the parties discovered that no divorce decree had been entered, they appeared before the trial court; and, on September 18, 1984, the trial court entered a divorce decree which incorporated the prior order of equitable distribution. In an accompanying opinion, the trial court observed that it had entered the order of equitable distribution on June 1, 1984 in the mistaken belief that a decree in divorce had previously been entered. The court suggested that the parties had suffered from the same misconception. Relying on Pa.R.A.P. 1701(b)(6) and believing that the order of equitable distribution was a nonappealable, interlocutory order, the court concluded that the entry of a decree in divorce was not precluded by the pending appeals from the decree of distribution. See: Pa.R.A.P. 1701(b)(6).

We are thus faced with an appeal and a cross-appeal which were taken from a pre-divorce order of equitable distribution entered in a case in which the trial court and the parties erroneously believed that a decree of divorce had already been entered. In fact, a final decree in divorce had not been entered at the time of the appeal. Unless otherwise permitted by statute or rule, an appeal will lie only from a final order. Adoption of G.M., 484 Pa. 24, 27, 398 A.2d 642, 644 (1979); Beasley v. Beasley, 348 Pa.Super. 124, 126, 501 A.2d 679 (1985). A final order has been defined as one which ends the litigation or disposes of the entire case. Fried v. Fried, 509 Pa. 89, 94, 501 A.2d 211, 213 (1985). “[A]n order is interlocutory and not final unless it effectively puts the litigant ‘out of court.’” T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977).

A pre-divorce order of equitable distribution, even one entered upon the mistaken assumption that a divorce decree has already been entered, is not a final order. A premature distribution of marital property does not terminate the divorce action. While “[t]he courts of common pleas have been given [subject matter] jurisdiction to hear and decide divorce actions and related economic claims[,] ... [t]o enter a decree of equitable distribution prior to a divorce decree ... is improper.” Reese v. Reese, 351 Pa.Super. 521, 526, 506 A.2d 471, 474 (1986). The courts of common pleas are only empowered to make equitable distribution contemporaneously with or subsequent to a decree in divorce. Bacchetta v. Bacchetta, 498 Pa. 227, 235, 445 A.2d 1194, 1198 (1982); Reese v. Reese, supra, 351 Pa.Super at 521, 506 A.2d at 473-474; Drumheller v. Marcello, 351 Pa.Super. 139, 140, 505 A.2d 305, 306 (1986); Pastuszek v. Pastuszek, 346 Pa.Super. 416, 424, 499 A.2d 1069, 1073 (1985); Laxton v. Laxton, 345 Pa.Super. 450, 455, 498 A.2d 909, 912 (1985); Dech v. Dech, 342 Pa.Super. 17, 22, 492 A.2d 41, 43 (1985). This is because the settlement of economic and property claims is merely a part of the trial court’s broader power to terminate the marriage. Equitable distribution is an incident of divorce, not marriage.

It seems clear, therefore, that a pre-divorce decree distributing marital property is interlocutory. It cannot be reviewed until it has been rendered final by the entry of a decree in divorce. Nevertheless, a final decree in divorce has now been entered in this action, and the decree of equitable distribution appears ripe for appellate review. Therefore, as in Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985), we disregard the inadvertent, procedural misstep taken by both counsel and enter upon a review of the trial court’s order of distribution.

Our standard of review is clear. An order determining equitable distribution will be reversed only for an abuse of discretion. Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986); LaBuda v. LaBuda, 349 Pa.Super. 524, 528, 503 A.2d 971, 974 (1986). An abuse of discretion occurs if the trial court fails to follow correct legal procedure or misapplies the law. Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). In determining whether a court has abused its discretion, we do not usurp the trial court’s duty as fact finder. Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985); Ruth v. Ruth, 316 Pa.Super. 282, 287, 462 A.2d 1351, 1353 (1983). The trial court’s findings of fact, if supported by credible evidence, are binding upon a reviewing court and will be followed.

The parties’ principal dissatisfaction with the trial court’s order centers upon Husband’s interest in Williamsport Candy Company, a partnership owned and operated by the Campbell family. Husband was not always a partner. The original firm was owned by Husband’s uncle, Harold (65%), Husband’s father, Richard (30%), and Husband’s cousin, H.T. Collins (5%). Harold, however, was semi-retired and living in Florida. Therefore, by agreement, profits were distributed in a ratio different than the ownership interests. Thus, Harold and Richard each received forty percent of the profits, while H.T. Collins received twenty percent of the profits. In 1978, Richard Campbell gave to his son, Charles, one-half of his interest in the firm. This interest was valued by the parties at $26,000.00. Six Thousand ($6,000.00) Dollars was in the form of an outright gift. Charles borrowed the remaining Twenty Thousand ($20,-000.00) Dollars from the bank and paid it to his father in consideration for the balance of his father’s interest in the firm. The loan, however, was repaid to the bank by Charles’ father.

The trial court found that Husband’s interest in the family business had been received as a gift and placed a value on it of $26,000.00. This interest, therefore, was held not to be marital property. See Divorce Code of April 2, 1980, P.L. 63, § 401(e)(3), 23 P.S. § 401(e)(3). A gift to a spouse remains the property of that spouse unless he or she manifests an intention to donate it to the entireties entity. Coyle v. Coyle, 282 Pa.Super. 221, 226, 422 A.2d 1085, 1088 (1980). See also: DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); Uccellini v. Uccellini, 423 Pa. 273, 223 A.2d 694 (1966). In the instant case, Husband did not manifest an intent to donate his interest in the family business to the entireties, and the trial court so found. A gift to the entireties was not created merely because the proceeds of Husband’s bank loan ($20,000.00) passed through a joint account on its way to Husband’s father in payment for a portion of his interest in the business. The gift of this portion of the business was made by the father to the son, and that interest never vested in both husband and wife as tenants by the entireties. The transfer of the business interest was unequivocally to Husband, not to Husband and Wife by the entireties.

Although Husband’s interest in the family business was not marital property, the increase in the value thereof during marriage was distributable as “marital property.” Divorce Code, supra § 401(e)(3), 23 P.S. § 401(e)(3). This increase in value was determined by the trial court to be One Hundred Sixteen Thousand ($116,000.00) Dollars. In arriving at this amount, the court found that the gift had had an initial value of Twenty-Six Thousand ($26,000.00) Dollars and a value of One Hundred Forty-Two Thousand ($142,000.00) Dollars when the couple separated. Husband, in his appeal, contends that the trial court’s calculations of both values were in error. We disagree.

Husband asserts that the trial court’s computation of the initial worth of the gift was erroneous because it had not been based upon the fair market value of his interest. An examination of the record reveals, however, that no evidence of the market value of the interest was presented at the hearing before the master. Indeed, there was no evidence that there even existed a market for Husband’s fractional interest in the wholesale business which was wholly owned and operated by his family. The only evidence of the original value of Charles’ interest was provided in a written agreement entered by the partners of the family business wherein the value of Charles’ ownership was affixed at $26,000.00. From this agreement, the trial court could find that the value of Charles’ interest when first acquired was $26,000.00. We perceive no error in the court’s finding.

The trial court also found, as we have observed, that the value of Husband’s interest at the time of separation was $142,000.00. This finding was premised upon testimony by a certified public accountant who had examined the partnership’s income tax returns for the relevant years. Husband contends that this finding was erroneous, because the trial court refused to reduce the book value of his interest by the face amount of a note which he had executed on July 2, 1979 in favor of Richard W. or Iva L. Campbell for $91,198.93. The court held that the note “did not represent part of the purchase price of the 20 percent interest, but ... was ... given as security to the partners of the company to insure them that Charles would make no claim for past profits still held by the partnership.” In so holding, the court found that the parties had not intended the note to be paid and that the note, therefore, did not constitute evidence of an actual indebtedness. This finding by the trial court is supported by the undisputed testimony of Charles’ father. He admitted that no money had ever changed hands and indeed, was not intended to change hands as a result of the transaction. The trial court did not err, therefore, by refusing to consider the note in its calculation of the increased value of Husband’s interest in the family business. Because the court’s finding of the value of the interest upon separation is supported by credible evidence, we are bound by it.

Husband also contends that his proprietary interest in the business, being one-half of his father’s ownership interest, is fifteen (15%) percent, not twenty (20%) percent as determined by the master and the trial court. Even though he is entitled to receive twenty (20%) percent of the profits, he argues, the book value of his interest should have been based on fifteen (15%) percent of the value determined by the court. This error, if error it be, was not raised by exceptions to the master’s report and was neither argued to nor considered by the trial court. The issue, therefore, was waived; it has not been preserved for appellate review. See: LaBuda v. LaBuda, supra, 349 Pa.Super. at 524, 503 A.2d at 978; Pa.R.C.P. 1920.55(a). See also: Kovach v. General Telephone Company of Pennsylvania, 340 Pa.Super. 144, 149, 489 A.2d 883, 885 (1985); Neshaminy Water Resources Authority v. Del-Aware Unlimited, Inc., 332 Pa.Super. 461, 469, 481 A.2d 879, 883 (1984); Pa.R.A.P. 302(a).

Wife, in her cross-appeal, contends that the trial court erred when it found that the business had no “good will” value. At the hearing before the master, the accountant upon whose testimony the trial court relied to establish the book value of Husband’s interest testified that the business possessed a “good will” value and that Husband’s share thereof was $136,000.00. Both the master and the trial judge rejected the accountant’s testimony regarding good will value and accepted the testimony of Richard Campbell, Charles’ father and one of the partners, that the partnership business, because of its inherent nature, lacked a separate good will value. Richard Campbell testified that the firm had purchased several candy companies during its history and had never paid a separate amount for good will. The nature of the business, he said, was such that good will did not attach. He explained: “The candy business and the cigarette and the cigar business is different than most businesses because you are selling the same thing that five or six other jobbers in the same town are selling. You have nothing that is all your own. You are selling Camel cigarettes, Winston cigarettes, Chesterfield, everybody’s got them____ In other words, if a man goes out and sells it for ten cents less than you do, you got to meet his price or you can’t sell it.” The trial court accepted this testimony and relied upon it, while finding unworthy of belief the contrary testimony by the accountant. The accountant's testimony was not credible, the court said, because he failed to:

1. testify that the, partnership had any elements that would result in a competitive advantage;
2. testify to the partnership’s reputation or the prospect for repeat business;
3. consider the economic outlook of the partnership; (N.T. 72)
4. consider the economic outlook of the specific type of business in which the partnership was engaged; (N.T. 72)
5. use financial statements, but instead used only federal income tax returns; (N.T. 66)
6. did not consider competition and methods of distribution;
7. express familiarity with the partnership’s competitive position in the marketplace;
8. express a familiarity with the sales of any other similar businesses; or,
9. take into consideration that only a fractional interest (20 per cent) was the subject of the fair market valuation.

Trial Court Opinion at 11-12.

In reviewing the trial court’s finding, we may not substitute our judgment for that of the trial court. See: Burbage v. Boiler Engineering and Supply Co., 433 Pa. 319, 323, 249 A.2d 563, 566 (1969); Brasile v. Estate of Brasile, 354 Pa.Super. 400, 405, 512 A.2d 10, 13 (1986), quoting Lombardo v. DeMarco, 350 Pa.Super. 490, 494, 504 A.2d 1256, 1258 (1985). Whether we would have made the same finding, therefore, is not determinative. Rather, we must affirm the trial court’s finding if it is based upon adequate evidence and does not suggest a capricious disregard of credible evidence to the contrary. See: Brasile v. Estate of Brasile, supra; Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 377-378, 496 A.2d 840, 845 (1985). Limited as we are by the applicable standard of review, we will not interfere with the finding of the trial court regarding the absence of a separate good will value.

Finally, Wife argues that the trial court erred in failing to award her counsel fees and costs. We will reverse a determination of fees and costs only for an abuse of discretion. Pangallo v. Pangallo, 329 Pa.Super. 25, 31, 477 A.2d 885, 888 (1984); Prozzoly v. Prozzoly, 327 Pa.Super. 326, 331, 475 A.2d 820, 823 (1984). The trial court determined that it was not necessary that Judith be awarded counsel fees because “[n]ot only will the plaintiff receive some $52,000.00 from equitable distribution but she also received approximately $30,000.00 in cash and property from post separation distribution of assets.” Trial Court Opinion at 15. Under the circumstances here present, we cannot say that the trial court abused its discretion when it refused to award Wife counsel fees and costs.

Decree affirmed.

BECK, J., files a concurring opinion.

TAMILIA, J., concurs in the result.

BECK, Judge,

concurring:

Although I agree with the majority’s affirmance of the lower court, I believe the majority opinion requires supplementation in two regards. First, the majority fails to provide adequate support for its decision that the order before us is appealable at this time. Second, the majority opinion does not provide sufficient guidance to the bench and bar on the existence and valuation of goodwill in a business. It renders its decision without making any reference to the larger issue of goodwill as an element of economic value in a business subject to equitable distribution.

APPEALABILITY.

The majority correctly notes that under the Divorce Code, the entry of a divorce decree is a prerequisite to an order for alimony or equitable distribution of property. Deck v. Deck, 342 Pa.Super. 17, 22, 492 A.2d 41, 43 (1985). As we thoroughly demonstrated in Dech, numerous sections of the Code refer to the entry of an order of equitable distribution only after or in conjunction with the entry of a divorce decree. Id. (citing 23 P.S. §§ 104, 301(a), 401(b) & (j), 402). The statutory sections which so provide are based on sound concerns for the possible ramifications of allowing distribution of marital property to predate divorce. Id.

Given the prohibition on a pre-divorce equitable distribution order, any such order must be deemed to be interlocutory. The majority correctly states that such an order does not terminate the divorce action and, in most instances, could not be immediately reviewed. However, after so stating, the majority merely concludes that in this case an exception should be made and proceeds to consider the substantive issues on appeal. At minimum, I believe that there should be additional cautionary statements outlining the extremely limited circumstances in which such an exception will be allowed.

In Reese v. Reese, 351 Pa.Super. 521, 506 A.2d 471 (1986), this Court allowed such a limited exception and couched its opinion in appropriate limiting language. In that case, the trial court had entered an order of equitable distribution prior to entering the divorce decree. The wife died before the divorce was granted. On petition of the wife’s estate, the trial court ordered the husband to comply with the equitable distribution order. This court affirmed. Id., 351 Pa.Superior Ct. at 521, 506 A.2d at 475. Citing Dech, the Reese court noted that the entry of the equitable distribution order before divorce has been “ill-advised”. However, it also concluded that in consideration of all the pertinent and somewhat extraordinary circumstances of that case, the distribution order should be permitted to stand. These circumstances included the fact that the husband had been the party initially requesting the pre-divorce distribution order, neither party had objected to the untimeliness of the order or appealed from it, and both had acted in reliance on the order by taking sole possession of the property awarded to them. Id., 351 Pa.Superior Ct. at 521, 506 A.2d at 473-4. Given this conduct by the parties, particularly by the appellant-husband, and reasoning that the husband was estopped from objecting to the order, this court allowed it to stand.

Similarly, in Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985), this Court permitted an appeal which was described by counsel for appellant as being from the trial court’s order bifurcating the parties’ divorce from their economic claims. The divorce decree was entered six days after the bifurcation order. The court nevertheless accepted the appeal, explaining that the bifurcation order had clearly been entered only because the trial court intended shortly thereafter to enter the divorce decree. Moreover, the court emphasized that the true substance of the appeal concerned the order entering the divorce decree and refused to ignore that fact merely because of counsel for appellant’s “uninformed procedural misstep”. Id., 341 Pa.Superior Ct. at 119, 491 A.2d at 178-9.

This case presents a situation similar to those found in Reese and Mandia and thus poses somewhat of a dilemma. This case represents the rare exception to the rule that the divorce decree is a prerequisite to equitable distribution, Deck, and that an appeal relating to equitable distribution will not lie absent a divorce decree. On the one hand, the procedure followed by the trial court was clearly in error. However, the trial court committed that error only because it believed the divorce decree had already been entered. Both parties and their counsel apparently shared that belief. As the trial court was careful to point out in its opinion accompanying the divorce decree, both parties appealed immediately after entry of the equitable distribution order, apparently because they thought the divorce decree had previously been entered. The trial court also stated that at the master’s hearing, the parties had stipulated on the record to a § 201(d) divorce. Thus, the trial court felt confident that the entry of the decree, although untimely, was in accord with both parties’ wishes. Opinion of the Trial Court, dated 9/18/84, at pp. 2-4.

I would, therefore, agree with the majority that we have jurisdiction over this appeal, but only because the timing of the divorce decree resulted simply from a mistake by the court, both parties and their counsel and because entry of the decree after the equitable distribution order did not prejudice the rights of either party.

Goodwill.

Goodwill can be defined as the advantage or benefit that inheres in a business beyond the mere value of the tangible assets of the business and which is attributable to the good reputation of the business or those qualities which cause existing customers to continue to patronize the business. In other words, goodwill is the expectancy of repeat patronage, the qualities of a business that make its customers return. Quaid v. Philadelphia Tax Review Board, 188 Pa.Super. 623, 630, 149 A.2d 557, 560 (1959); Dugan v. Dugan, 92 N.J. 423, 457 A.2d 1 (1983). The goodwill of a small, closely held business can represent a large portion of the value of that business. See Gutzeit v. Gutzeit, 200 Pa.Super. 401, 405, 189 A.2d 324 (1963) (allocatur denied).

In this case, the testimony offered as to the goodwill of the Williamsport Candy Company (the “Company”) was confined to that of a certified public accountant called by the appellee-wife to give expert testimony as to the value of the Company, and of Richard W. Campbell, appellant-husband’s father and a partner in the Company. Mindful of our limitations in reviewing the factual findings of a lower court in a matter like this, I agree with the majority’s conclusion that no value should be attributed to goodwill in the valuation of the Company for purposes of equitable distribution. I base this conclusion on the fact that the testimony of appellee’s expert does appear to be deficient in the ways noted by the trial court and reiterated by the majority. Those deficiencies all relate to the expert’s failure to acquaint himself with the particulars of the Company’s business, its methods of obtaining and preserving a competitive position in the marketplace, or with the candy and cigarette distributing business in general. (N.T. 72, 87-8). Indeed, the expert based his conclusion that the Company possessed goodwill with an ascertainable value on a purely numerical and formulistic calculation he made based entirely on his review of the Company’s tax returns for three consecutive years. (N.T. 66-7). These returns were the only data regarding the Company that apparently was provided to the expert to use in valuing the Company. (N.T. 67).

The importance of these deficiencies in the expert’s testimony is obvious when analyzed in light of the prevailing standards for valuation of a closely held business like the Company for equitable distribution purposes. Many courts refer to the Internal Revenue Service’s Revenue Ruling 59-60 as providing a reliable method of valuation for such businesses. 1959-1 CB 237; Bowen v. Bowen, 96 N.J. 36, 473 A.2d 73 (1984).

Revenue Ruling 59-60 lists several basic factors that should be considered in valuing such a business. These factors include, inter alia, the nature of the particular business being valued and the history of the enterprise from its inception, the condition and outlook of the specific industry in which the business is engaged and whether the business has goodwill or other intangible value. 1959—1 CB 237. Obviously the analysis of the first two of the foregoing factors is pertinent to whether the business has goodwill and, if so, what the goodwill is worth. Given the definition of goodwill provided above, it is obvious that a consideration of the particular history and mode of doing business of the company being valued in relation to those of other businesses in the same industry is crucial to determining the existence and value of goodwill.

Although appellee’s expert repeatedly referred to Revenue Ruling 59-60 as having been the standard for his valuation, in fact he appears not to have sufficiently followed the ruling’s valuation method, particularly as to the goodwill of the Company. In fact, the expert specifically stated that he had no familiarity with the candy and cigarette distributing business nor with the Company’s competitive position in the market. (N.T. 72, 87-8). Thus, I agree with the majority that appellee failed to show that the business has goodwill or, if it does, what the value of the goodwill is.

I must emphasize that my conclusion in this regard is based entirely on the deficiencies in the appellee’s expert testimony. But that is where my concurrence with the analyses of the trial court and the majority on this issue ends. Unlike the trial court and the majority, I find the testimony of Mr. Campbell, appellant’s father and a partner in the Company, on the goodwill issue both unqualified and unpersuasive. Mr. Campbell testified that it was in the nature of the Company’s business that it would not have any goodwill. In other words, outside of any quantitative issue as to value, Mr. Campbell stated that the Company had no goodwill in a qualitative sense. He further stated that one indicia of this lack of goodwill was the fact that the Company had purchased seven other candy distributors in the past and had never paid any amount for goodwill. (N.T. 140-42).

First, it should be noted that Mr. Campbell himself admitted to his lack of expertise as to the valuation of the Company. (N.T. 195). Moreover, the trial court also noted Mr. Campbell’s lack of expertise in this regard when it expressly discredited his testimony as to the total value of the Company. Opinion of the Trial Court, dated 6/1/84, at p. 10.

In addition to these general indicia of incredibility are the specific substantive flaws in Mr. Campbell’s testimony. The majority’s failure to highlight these flaws and its acceptance of Mr. Campbell’s testimony raise the suggestion that goodwill is frequently not a part of economic value of a small closely held business. Indeed, the opinion suggests that the qualitative lack of goodwill can be established simply through the testimony of an admitted non-expert and possibly interested witness regarding the terms of acquisitions of similar businesses. These suggestions are, in my opinion, seriously misleading.

As previously noted, Revenue Ruling 59-60 itself indicates that whether a closely held business has goodwill or other intangible value is always a factor to be considered in valuing such a business. This indicates to me that it is more likely than not that a business like the Company, which has been in operation for a substantial period of time and has exhibited some degree of competitiveness in the marketplace, does have goodwill. Mr. Campbell’s testimony that it is in the “nature” of a distributorship business not to have goodwill is unconvincing. Such testimony fails to consider a myriad of qualities the Company might have acquired that would encourage the repeat patronage of its customers. For example, the Company may have established a reputation for reliability for prompt delivery, and for maintaining a broad range of inventory and, thereby, increased its competitive position.

Further, Mr. Campbell’s testimony that in past acquisitions of similar businesses the Company had never paid for goodwill is not telling. On cross-examination, Mr. Campbell testified that the last of these acquisitions occurred approximately thirty years ago. (N.T. 190-91). Even more importantly, Mr. Campbell’s testimony indicates that in fact these transactions were not acquisitions of similar businesses. In each such transaction, the Company purchased only the saleable inventory and certain of the accounts receivable of the other business. The Company paid cost for the inventory and face value of the accounts, minus a discount presumably to reflect the risk of uncollectibility. The Company did not, for example, buy the fixed assets or customer lists. (N.T. 191-92). Thus, it is highly likely that goodwill would not factor in such a transaction, which amounted to no more that a purchase of some of the assets of the other business. This does not convince me that those businesses did not have any goodwill in a qualitative sense.

Even if those transactions had been acquisitions of an entire business, the failure to allocate any of the price to goodwill proves nothing. The transaction could have been a distress sale. Indeed, Mr. Campbell suggested that the last of these transactions by the Company was a distress sale when he testified that the sellers had come to the Company and requested that it buy them out. (N.T. 193-4). Lastly, it is common knowledge that the allocation by the parties of the total purchase price among the various assets of an acquired business is a matter of negotiation, influenced by many considerations including the tax consequences of the allocation.

In sum, goodwill is often a substantial element of value in a closely held business and should be subject to valuation through credible expert testimony and goodwill should be subject to equitable distribution. I disagree with any suggestion to the contrary by the majority.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.

      . 23 P.S. § 201(c). A divorce will be granted under § 201(c) when "a complaint has been filed alleging that the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.”

      . 23 P.S. § 201(d). A § 201(d) divorce is granted upon a showing that the marriage is irretrievably broken and the parties have lived separate and apart for a period of at least three years.

      . This rule provides in pertinent part that "[ajfter an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may: ... (6) Proceed further in any matter in which a nonappealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review of the order.”

      . Our decision in Reese v. Reese, supra, does not require a different result. There, we held that a spouse who had requested pre-divorce equitable distribution, had received the relief requested, and had acted in reliance thereon to accept the benefits thereof was estopped from denying the jurisdiction of the court to enter an order of equitable distribution after his wife had died without the entry of a final divorce decree. The decision in Reese was limited to the peculiar facts of that case and did not establish generally a right of appeal from a pre-divorce order distributing marital property.

      . The husband-appellant contends that the trial court abused its discretion when, in determining the value of the family business, the court refused to consider certain Dun & Bradstreet reports pertaining to the business and also when it failed to give adequate consideration to copies of partnership income tax returns for the years 1979, 1980 and 1981. We find no merit in these arguments. The trial court determined that the Dun & Bradstreet reports were hearsay, were inadmissible under any exception to the hearsay rule, and had not been received in evidence by the master. The record supports the trial court’s determination. The income tax returns, although received in evidence, were not determinative of the value of the business and were not discussed by the master in his report. The husband’s exceptions to the master’s report did not contain any reference to this omission; and, therefore, the trial court did not expressly discuss the income tax returns in its opinion. The court's failure to discuss the income tax returns under these circumstances does not suggest that the income tax returns were ignored. Although they had been received in evidence, the weight to be accorded them was for the fact finder to determine.

      . In fact, entry of an equitable distribution order before divorce could be construed to be outside the power of the trial court. Thus, the order presently before us is not only interlocutory but also may be considered to be void. Cf. Reese v. Reese, 351 Pa.Super. 521, 506 A.2d 471 (1986).

      . Revenue Ruling 59-60 specifically relates to valuation of such businesses for estate and gift tax purposes. 1959—1 CB 237.

      . The Divorce Code does not expressly address the valuation of marital property for equitable distribution purposes or the allocation of burden of proof as to valuation issues. The court must rely on the parties to submit adequate evidence of value. Semasek v. Semasek, 331 Pa.Super. 1, 7, 479 A.2d 1047, 1051 (1984); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983).


author: MONTEMURO, Judge: KELLY, Judge,

text:
    516 A.2d 373
    COMMONWEALTH of Pennsylvania v. Kevin Michael DONAHUE, Appellant. COMMONWEALTH of Pennsylvania v. Susan Marian KITCHENER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 14, 1986.
    Filed Oct. 14, 1986.

      D. Webster Keogh, Philadelphia, for appellants.
    James P. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order denying habeas corpus relief. Appellants were arrested for drug related offenses on March 24, 1985, based on information received by police through electronic surveillance. A preliminary hearing was scheduled for April 1, 1985. At the request of the district attorney, and over the objections of counsel, the hearing was continued until April 17. On April 16, the hearing was continued a second time, until April 29, again at the instigation of the prosecutor and opposed by the defense. Appellants’ habeas corpus petitions, were filed April 22. The trial court issued rules to be returnable May 1, and stayed further proceedings. The petitions were denied on May 10, and this appeal followed.

We first note that this case presents a jurisdictional question which although not raised by the parties we are empowered, if not compelled, to address sua sponte. Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985).

It is a principle of some antiquity that, in general, an order denying a pre-trial petition for habeas corpus relief is interlocutory, and therefore not immediately appealable barring the existence of “exceptional circumstances.” Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); Commonwealth v. Schroeck, 273 Pa.Super. 386, 417 A.2d 702 (1980). This is particularly true in cases where the petition is grounded on the claim that insufficient evidence was produced at the preliminary hearing to make out a prima facie case against the defendant. Id.

Herein, however, the point of the petition was a demonstration that, prior to appellants’ internment, the strength of the Commonwealth’s case had not even been preliminarily tested, contrary to principles of both procedural and substantive law. We find that this set of circumstances is sufficiently anomalous, and therefore extraordinary, to warrant our intervention, since it presents a set of facts “ ‘requiring the safeguarding of basic human rights.’ ” Commonwealth v. Rucco, 229 Pa.Super. 247, 250, 324 A.2d 388, 389 (1974) (citation omitted). In so finding we are mindful of the “vital purposes of [habeas corpus], which are to obtain relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody.” 39 Am.Jur.2d Habeas Corpus § 2 (1968). It is in fact the principal function of the preliminary hearing to eliminate unlawful detention, Commonwealth v. Harvin, 346 Pa.Super. 575, 500 A.2d 98 (1985); Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977), thus obviating the need for pre-trial habeas corpus relief. Here the opposite effect has been achieved.

Specifically appellants argue that discharge through habeas proceedings is the proper remedy for violation of Pa.R.Crim.P. 140(d)(1), and 142.

Rule 140(d)(1) reads in pertinent part as follows:

(d) Unless the preliminary hearing is waived by a defendant who is represented by counsel, the issuing authority shall:
(1) fix a day and hour for a preliminary hearing which shall not be less than three nor more than ten days after preliminary arraignment unless extended for cause shown, unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the complainant and the attorney for the Commonwealth ...
Rule 142 reads:
The issuing authority may, for cause shown, grant a continuance and shall note on the transcript every continuance together with: (1) the grounds for granting each continuance, (2) the identity of the party requesting such continuance, and (3) the new date and the reasons that the particular date was chosen.

Appellee argues that the continuances were a result of its inability to comply with the disclosure provisions of the Wiretap Act, 18 Pa.C.S. § 5720, which requires that certain documents be supplied to all parties prior to any hearing.

However, despite the Rule 142 requirement that “cause shown” for a continuance be noted on the magistrate’s transcript, none is of record here. Nor does appellee, even now, provide us with a reason why the necessary information was forthcoming with so much difficulty given the fact that all of the documents in question must perforce have been in existence prior to appellants’ arrest. Having found a clear violation of both the spirit and the letter of the Rules, we must perforce find as well that the trial court erred in denying habeas corpus. We therefore reverse the Order of the court below.

Reversed.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring:

I concur in the majority’s opinion.

Given the fact that no preliminary hearing was held, and given this Court’s recognition that both the letter and the spirit of the Rules of Civil Procedure were violated, I join the majority’s holding that discharge from “custody” was the proper remedy to afford appellants on their habeas corpus petition. In violation of the guarantees embodied in Rules 140 and 142, appellants were not provided a preliminary hearing thirty-nine days after arrest, nor were they given valid reasons for the grant of the continuances. Moreover, they were prejudiced by the fact that they remained incarcerated for more than thirty-nine days, from April 29 through May 31, because of their inability to meet the bail originally set. Bail had been set at $125,000 for appellant Kitchener, and $250,000 for appellant Donahue. Appellants could not raise the necessary funds to meet this requirement and therefore petitioned for a reduction. At the bail reduction hearing held on May 31, bail was reduced to $75,000 for both charges. Petitioners did obtain the funds necessary to meet this new amount and eventually were released on bail.

I write separately, however, to stress that even had petitioners been released on bail, the writ should have been issued. Our courts have consistently held that the writ of habeas corpus may be used to test the legality of custody. See Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965). Our courts have also found that a petitioner bound over for court and released on bail remains in “custody,” satisfying the requirements of a habeas corpus petition. Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760, cert. denied, 442 U.S. 918, 99 S.Ct. 2841, 61 L.Ed.2d 286 (1979). Petitioners released on bail are subject to conditions and restrictions which restrain their freedom and which are not shared by the public generally.

However, I note that the grant of a writ of habeas corpus will not enable petitioners to evade the serious charges leveled against them. Whether a petitioner is released on bail, or incarcerated, the granting of the writ allows the petitioner to be discharged from custody, but not from the charges. Thus, discharge by means of the writ is “not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest.” Commonwealth v. Hetherington, 460 Pa. 17, 22, 331 A.2d 205, 208 (1975); see also Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973); 39 Am.Jur.2d § 161.

      . Bond for appellant Kitchener was originally set at $125,000, and for appellant Donahue at $250,000. On June 20, 1985, these amounts were reduced to $20,000 and $50,000 respectively.

      . We note that this court has previously addressed without comment cases presented in a similar procedural posture. See, e.g., Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977).

      . 18 Pa.C.S. § 5720:
      Service of copy of order and application before disclosure of intercepted communication in trial, hearing or proceeding
      The contents of any wire or oral communication intercepted in accordance with the provisions of this chapter, or evidence derived therefrom, shall not be disclosed in any trial hearing or other adversary proceeding before any court of the Commonwealth unless not less than ten days before the trial, hearing or proceeding the parties to the action have been served with a copy of the order, the accompanying application and the final report under which the interception was authorized or, in the case of an interception under section 5704 (relating to exceptions to prohibition on interception and disclosure of communication), notice of the fact and nature of the interception. The service of inventory, order, application, and final report required by this section may be waived by the court only where it finds that the service is not feasible and that the parties will not be prejudiced by the failure to make the service.

      . In Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977), the petitioner seeking habeas corpus relief was incarcerated for fifty-six days and had never been afforded his preliminary hearing. On appeal, this Court held that it was error for the lower court to deny the petition for writ of habeas corpus; the Court based its reasoning on the fact that 1) petitioner was prejudiced by being incarcerated, and not free on bail, as of the date of the denial of the writ and that 2) the duration of the noncompliance with Rule 140, fifty-six days, was substantial. Wansley, 248 Pa.Superior Ct. at 238-239, 375 A.2d 73. By comparison, in Commonwealth v. DeCosey, 246 Pa.Super. 412, 371 A.2d 905 (1977), this Court held that a four day delay in scheduling the preliminary hearing was not so prejudicial that the writ should issue.


author: KELLY, Judge:

text:
    516 A.2d 376
    COMMONWEALTH of Pennsylvania v. Rayfield ALVIN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 30, 1986.
    Filed Oct. 14, 1986.

      Donald Bronstein, Assistant Public Defender, Philadelphia, for appellant.
    Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and WICKERSHAM, BROSKY, McEWEN, OLSZEWSKI, MONTEMURO, BECK, KELLY and JOHNSON, JJ.
   KELLY, Judge:

In the instant case we are called upon to determine whether the law of justification regarding the use of deadly force in self-defense was changed by the enactment óf 18 Pa.C.S.A. § 505(b)(2)(i) as part of the Consolidated Pennsylvania Statutes Act of 1972 and, if so, whether the trial judge committed an error of law by instructing the jury that, in order to justify the use of deadly force, the evidence must establish that the actor was free from fault in provoking or continuing the difficulty which resulted in the injury.

The appellant contends that, by borrowing language from § 3.04 of the Model Penal Code, the legislature altered and restricted the law of self-defense. The appellant argues the restriction limits the defense of justification to only those cases in which the actor “with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter____” See 18 Pa.C.S.A. § 505(b)(2)(i). The appellant argues that in light of this change in the law of self-defense, the jury charge given by the trial court was incorrect, incomplete and unduly prejudicial, to the detriment of the appellant. The appellant, therefore, seeks a new trial.

The Commonwealth responds, alternatively, that: the ap-. pedant’s claim was waived by the appellant’s failure to submit written points for charge pursuant to Pa.R.Crim.P. 1119(a), and by failing to raise at trial the theory argued on appeal pursuant to 1119(b); the appellant’s argument is without merit as the enactment merely codified the prior (common) law; and even if the instructions were in error, the error was harmless beyond a reasonable doubt as the appellant’s claims were insufficient as a matter of law to require any instruction on the law of self-defense.

Appellant counters that even if his claim was waived, it was waived due to ineffectiveness of counsel, and should be reviewed in that context. Upon review, we find that the issue was not properly preserved; however, counsel was not ineffective for failing to preserve the issue as the enactment of 18 Pa.C.S.A. § 505(b)(2)(i) did not change the prior law so as to render the trial court’s jury instruction incorrect or incomplete. Accordingly, we affirm the judgment of sentence.

The facts relevant to our deliberations and supported by the record were summarized by the trial court as follows:

During the afternoon of November 13,1982 the complainant, Andrew Smith, came out of the Pep Boys Store at Broad and Buttonwood Streets, Philadelphia, Pennsylvania, and got into his car which was parked on Buttonwood Street. The defendant’s car was parked directly in front of Mr. Smith’s car, and the defendant was standing by the rear of his car putting a gas cap on his car. As Mr. Smith was pulling his car out of its parking place, he heard the defendant yelling that someone should get Mr. Smith’s license plate number and call the police. Mr. Smith got out of his car and the defendant walked over to him and accused Mr. Smith of trying to run him over. Mr. Smith denied striking the defendant with his car. The defendant put his hand in his shirt at about waist level and told Mr. Smith not to move or he would “blow his brains out.” The defendant swung at Mr. Smith and Mr. Smith returned the blow. Thereafter, the defendant moved his car, blocking Buttonwood Street which is a one way street.
The complainant got back into his car and locked the doors. The defendant then broke the complainant’s car windows with a metal bar. While the defendant was banging on the trunk of the complainant’s car with the metal bar, the complainant started to get out of his car and call for help.
At that point, the defendant struck the complainant from behind with the metal bar, twice on the head and once on the shoulder. When the police arrived, the complainant was taken to Hahnemann Hospital.
As a result of the blows to his head, the complainant’s skull was fractured and he suffered paralysis of the left leg. While hospitalized the complainant had surgery and a plate was inserted in his skull. At the time of trial, the complainant had recurring head pain and impaired movement of his left leg.

Trial Court Opinion at 2-3.

The appellant, Rayfield Alvin, was arrested on November 13, 1982, and charged with Aggravated Assault, Simple Assault, Recklessly Endangering Another Person, and Possessing Instruments of Crime. On February 28, 1982, a preliminary hearing was conducted before the Honorable Francis P. Cosgrove. The appellant was ordered to be held for trial on all charges.

On April 30, 1984, the appellant was brought to jury trial before the Honorable Levy Anderson. Following a five day trial, the jury returned verdicts of guilty on the charges of Aggravated Assault and Recklessly Endangering Another Person. A verdict of not guilty was returned on the Possessing Instruments of Crime charge. The Simple Assault charge was nol prossed.

Post-verdict motions were filed, argued, and denied. On October 19, 1984, the appellant was sentenced to a term of imprisonment of one and one-half to four years on the Aggravated Assault charge. Sentence was suspended on the Recklessly Endangering Another Person charge by reason of its merger into the Aggravated Assault charge. Appellant’s motion to reconsider sentence was denied. Notice of appeal was timely filed.

I.

Before proceeding to a review of the merits of the appellant’s contention, we must consider the Commonwealth’s argument that the appellant waived his claim with regard to the alleged defect in the jury charge by failing to submit written points for charge and by failing to raise in the trial court the theory now urged on appeal.

At trial, counsel for the appellant did not submit written requests for instruction pursuant to Pa.R.Crim.P. 1119(a). However, counsel for appellant specifically objected to the trial court’s instruction that:

... in order to justify the use of deadly force ... the evidence must establish first that the actor was free from fault in provoking or continuing the difficulty which resulted in the injury.

(N.T. 5/4/84 at 5.111).

Counsel requested that the charge be eliminated or that it be further defined. Counsel requested that the trial court instruct the jury that the fault must be caused by “an illegal action on his part or a fault that he could reasonably anticipate would cause the other person to take the action which he then had to defend himself against.” (N.T. 5/4/84 at 5.121). The request was denied but an exception was noted by the court. (N.T. 5/4/84 at 5.121-5.122).

After the jury retired for deliberations, the jury requested that the court redefine the law of justification regarding self-defense. (N.T. 5/4/84 at 5.120). The trial court then proceeded to repeat its full self-defense instruction including “the free from fault” language to which counsel for appellant had previously objected. (N.T. 5/4/84 at 5.131-5.-135). Counsel for the appellant again objected to the “free from fault” language. He reiterated his argument that fault must arise from criminal conduct or from conduct which the actor could reasonably anticipate would result in a return of force. He contended that he could “get [the trial judge] cases right now out of the statute book [to support his argument].” (N.T. 5/4/85 at 5.135-137).

In his post-verdict motions the appellant, for the first time, raised the contention that 18 Pa.C.S.A. § 505(b)(2)(i) changed the prior law. The appellant relied on this novel theory, rather than prior case law, in challenging the trial court’s instructions on the law of self-defense. (Post Verdict Motions at 1-2).

Initially, we note that the failure of the appellant to file written points for charge does not by itself constitute a waiver of the appellant’s objections to the charge. See Pa.R.Crim.P. 1119(a); Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977); Commonwealth v. Marshall, 273 Pa.Super. 344, 417 A.2d 681 (1979). A specific oral objection made before the jury retires to deliberate is sufficient to preserve the issue for appellate review. Marshall, 273 Pa.Superior Ct. at 349-350, 417 A.2d at 683. Thus, the allegations raised by the appellant were not waived by his failure to present written points for charge in the trial court.

However, the Commonwealth further contends that the appellant waived his present claim by failing to raise and argue at trial the theory now urged on appeal. The Commonwealth argues that the appellant’s objections in the trial court were not sufficient under Pa.R.Crim.P. 1119(b) to preserve for appellant review the issues raised in the present appeal. We agree.

At trial, appellant argued that the fault in provoking or continuing the dispute must be criminal or such that a return of force could be reasonably anticipated in order to negate the defense of justification, and claimed that his contentions could be supported with cases out of the statute book. On appeal, he argues that 18 Pa.C.S.A. § 505(b)(2)(i) changed the prior law. These contentions are separate and distinct theories which are not consistent. While the former argues in support of the existing law, the latter argues against it.

To accept the appellant’s arguments on appeal we would have to ignore the well settled rule that appellate courts should not consider theories and issues not posited or argued in the court below. This we will not do. See Commonwealth v. Hill, 492 Pa. 100, 107, 422 A.2d 491, 495 (1980), citing Commonwealth v. Ernst, 476 Pa. 102, 107-108, 381 A.2d 1245, 1247-1248 (1977) (Opinion in Support of Affirmance); see also Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (setting forth the factors compelling strict enforcement of this policy).

In Commonwealth v. Mason, 474 Pa. 308, 378 A.2d 807 (1977), our Supreme Court held that a party whose requested point, although erroneous, alerts the trial judge to an important issue in the case, does have a just cause for complaint if the law to which that point pertains is not otherwise correctly stated in the charge. However, this rule is inapplicable when the trial court correctly charged the jury in accordance with the then accepted jury instructions as to self-defense, and appellant seeks to raise on appeal a novel theory which was not presented in the trial court. Accord Commonwealth v. Jackson, 481 Pa. 426, 435, 392 A.2d 1366, 1370 (1978) (rule is inapplicable where requested charge is too general to alert the trial court to the alleged defect). Consequently, we find that the appellant has not properly preserved his present objection to the jury charge on self-defense pursuant to Pa.R.Crim.P. 1119(b).

II.

Appellant argues that “even if this Court should conclude that the objection failed to preserve this issue, this Court should nonetheless consider the issue on the merits as a matter of judicial economy since any waiver had to be the result of ineffective assistance of counsel.” (Reply Brief for Appellant at 4). While we do not agree that the waiver “had to be the result of ineffective assistance of counsel,” we do agree that this Court should review the merits of the appellant’s contentions. Our review of the merits of the claim is required in order to determine whether counsel was ineffective, and not as a result of a determination that he was ineffective.

An analysis of an ineffectiveness claim first requires us to examine the merits of the appellant’s underlying claims. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). “If the claim which counsel failed to pursue had no merit, counsel will not be deemed ineffective.” Commonwealth v. Williams, 314 Pa.Super. 355, 359, 460 A.2d 1178, 1180 (1983), citing Commonwealth v. Taylor, 491 Pa. 205, 420 A.2d 413 (1980). It is only when the claim which has been foregone is of arguable merit that we must inquire as to whether counsel had a reasonable basis for failing to pursue the claim. See Hubbard, 472 Pa. 278, 372 A.2d at 696.

In reviewing jury instructions for prejudicial and reversible error, the charge must be read and considered as a whole; error cannot be predicated on isolated excerpts, and it is the general effect of the charge that controls. Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). Moreover, there is no right to have any particular form of instruction given; it is enough that the charge clearly and accurately explains the relevant law. Commonwealth v. Dozier, 294 Pa.Super. 249, 439 A.2d 1185 (1982). Where the charge given properly covers the requested point, it is not error for the trial court to refuse to give

The underlying claim which we must examine is whether the legislature changed the law of self-defense by enacting 18 Pa.C.S.A. § 505(b)(2)(i), and, if so, whether the trial judge committed prejudicial and reversible error in failing to instruct the jury in accordance with the alleged change. additional instructions. Commonwealth v. Hayes, 314 Pa. Super. 112, 460 A.2d 791 (1983).

The appellant contends that the trial court erred by charging the jury that deadly force may not be used unless the actor is free from fault in provoking or continuing the dispute, rather than charging the jury with the clear statutory language. Appellant contends that he was prejudiced by the trial court’s failure to use the statutory language in that the statute changed the common law. We cannot agree.

First, the trial court is not required to charge the jury with the statutory language verbatim. While it is not error to read applicable statutes to the jury, see e.g. Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982) , neither is such a procedure required. “In charging the jury, it is the duty of the trial judge to clarify issues so that jurors may comprehend the questions which they are to resolve, to elucidate correct principles of law applicable to the pending case, and to endeavor to make such principles understandable in plain language.” Commonwealth v. Sherlock, 326 Pa.Super. 103, 106, 473 A.2d 629, 631 (1984). (Emphasis added). The trial court is free to select its own form of expression in charging the jury and such instructions will not be overturned when the charge meets the standards contained in appellate court opinions. See e.g. Commonwealth v. Carey, 293 Pa.Super. 359, 375, 439 A.2d 151, 159 (1981). Thus, we can find no error when the trial court employs language specifically approved by our appellate courts.

Since the adoption of the Code well over a decade ago, the courts of our Commonwealth have employed the precise language challenged by the appellant, in explaining the law of self-defense. See Commonwealth v. Simmons, 504 Pa. 565, 569, 475 A.2d 1310, 1313 (1984); Commonwealth v. Mehmeti, 501 Pa. 589, 597 n. 1, 462 A.2d 657, 661 n. 1 (1983); Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980); Commonwealth v. Reiff, 489 Pa. 12, 15-16, 413 A.2d 672, 674 (1980); Commonwealth v. McGuire, 487 Pa. 208, 217 n. 4, 409 A.2d 318, 318 n. 4 (1979); Commonwealth v. Black, 474 Pa. 47, 52-53, 376 A.2d 627, 630 (1977); Commonwealth v. Nau, 473 Pa. 1, 7, 373 A.2d 449, 451 (1977); Commonwealth v. McComb, 462 Pa. 504, 510, 341 A.2d 496, 499 (1975); Commonwealth v. Camp, 459 Pa. 569, 573, 330 A.2d 844, 846 (1975); Commonwealth v. Light, 458 Pa. 328, 333, 326 A.2d 288, 291 (1974); Commonwealth v. Daniels, 451 Pa. 163, 170, 301 A.2d 841, 845 (1973).

The appellant, however, contends that: 1) the free from fault language in these cases is merely dicta because the appropriate standard was not at issue in those cases; 2) the free from fault language can be directly traced to pre-code cases; and 3) the repetition of this language in cases after the enactment of the Code has occurred completely by rote. (Appellant’s Brief at 17).

Appellant is in error. Our Supreme Court has on numerous occasions applied the challenged free from fault language in rejecting appellants’ claims that trial courts erred either by failing to instruct on the daw of self-defense or in failing to find that appellants had in fact acted in self-defense. In these cases our Supreme Court rejected the appellants’ claims upon a finding that the evidence required, or at least supported, a determination that the appellants were not free from fault in provoking or continuing the confrontation. Thus, in these cases, the free from fault language underpinned the reasoning of the Court and therefore constituted ratio decidendi, and not dicta. See e.g. Reiff, supra; Nau, supra; McComb, supra; Daniels, supra.

Although it is true that the free from fault standard can be traced to pre-code cases, see e.g. Commonwealth v. Roundtree, 440 Pa. 199, 269 A.2d 709 (1970), it does not follow that the language has been repeated merely by rote. To the contrary, it is clear that our Supreme Court has relied upon the Code, as well as the common law, in support of its use of the free from fault standard in self-defense cases. In Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 401 (1980), the Pennsylvania Supreme Court stated:

Section 505(b) establishes the limitations on the justifiable use of force in self-protection. As provided by statute and as interpreted through case law, the following conditions must be satisfied before one may successfully invoke a claim of self-defense:
1. The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing;
2. The slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to kill in order to save himself therefrom;
3. The slayer must not have violated any duty to retreat or avoid the danger. Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).

490 Pa. at 325, 416 A.2d at 492. (Emphasis added). See also Simmons, 475 A.2d at 1313; Mehmeti, 462 A.2d at 661 n. 1; Brown, 421 A.2d at 662; Webster, 416 A.2d at 492; Reiff 413 A.2d at 674; McGuire, 409 A.2d at 317-318 (quoting 18 Pa.C.S.A. § 505(b)(2)); Black, 376 A.2d at 630 (citing 18 Pa.C.S.A. § 505(b)(2)); Light, 326 A.2d at 292; see also Commonwealth v. Jones, 231 Pa.Super. 300, 304-305, 332 A.2d 464, 466 (1974) (quoting 18 Pa.C.S.A. § 505(b)(2)(i)). In light of these facts, we reject the appellant’s argument that the aforementioned precedent is mere dicta which has been repeated by rote.

Furthermore, we reject the appellant’s contention that 18 Pa.C.S.A. § 505(b)(2)(i) changed the law in a way which makes the standard free from fault instruction inapplicable. To the contrary, we find that 18 Pa.C.S.A. § 505 was intended to codify the existing law, and that the jury charge then in use continued to adequately and accurately cover the law of self-defense after codification.

The legislative history is devoid of any reference to a legislative intent to adopt the radical change in the law of self-defense which the appellant contends that the enactment of 18 Pa.C.S.A. § 505(b)(2)(i) accomplished. We note that while the legislature appears to have borrowed language from § 3.04 of the Model Code, the statute does not follow the Model Code verbatim, nor did the legislature adopt or even discuss the Comments to the Model Code upon which the appellant so heavily relies.

Our Supreme Court has consistently stated that, “[f]or the most part, section 505 of the Code merely codifies the common law of this Commonwealth.” Commonwealth v. Cropper, 463 Pa. 529, 534, 345 A.2d 645, 647 (1975); see also Black, 474 Pa. at 53 n. 3, 376 A.2d at 630 n. 3; Com. v. Walley, 353 A.2d 396 at 398 n. 3; Light, 326 A.2d at 292 n. 4; Jones, 332 A.2d at 466 n. 4. The Official Comment to 18 Pa.C.S.A. § 505 provides in pertinent part:

This section is derived from Section 3.04 of the Model Penal Code, and makes no substantial change in existing law. The intent of this section is to codify existing case law pertaining to “self-defense” and to cover in a single rule the law governing the use of defensive force against both attack and in crime prevention.

Reprinted at 18 Pa.C.S.A. § 505, at 23 (Purdon’s Supp. 1986). We note that where the Code provisions clarified, liberalized or changed the existing law, the Official Comment to those provisions unequivocally announced such intent. Consequently, we reject the appellant’s argument that, while for the most part the law was not changed, the statute did alter the law of self-defense such that the instruction given by the trial court constituted reversible error.

Additionally, we cannot accept the proposition (implicit in the appellant’s argument) that the legislature sat idle and mute for over a decade while the courts of this Commonwealth radically misconstrued 18 Pa.C.S.A. § 505(b)(2)(i), and ignored the plain meaning and clear intent of the legislative enactment. To the contrary, we find that judicial interpretations, like administrative interpretations, which are not disturbed by the legislature, are appropriate guides to legislative intent. Accord Hospital Assn. of Pennsylvania v. MacLEOD, 487 Pa. 516, 410 A.2d 731 (1980). Thus, we find in the legislature’s silence additional support for the long-standing judicial interpretation of the statute.

Finally, we note the appellant’s reference to Commonwealth v. Bayard, 453 Pa. 506, 309 A.2d 579 (1973). In Bayard, the trial court instructed the jury that “if the defendant had anything to do with provoking the fight, self defense is out.” 453 Pa. at 510, 309 A.2d at 581. Bayard contended that the instruction was too broad in that he would not be at fault if “the character of the encounter originally contemplated is materially altered to an unforeseeable level of violence by actions of persons other than the original provocateur,____” Id.

In Bayard, our Supreme Court reviewed the evidence under the accepted free from fault standard and found that Bayard was not free from fault in provoking or continuing the dispute because he “voluntarily placed himself in a position where it was likely that he would become a participant in an affray that could reasonably have been expected to escalate to a ‘gang war’.” Bayard, 453 Pa. at 511, 309 A.2d at 582. Our Supreme Court did not decide whether the trial court’s instruction in Bayard was in error. Hence, reference to Bayard provides no guidance as to whether the instruction originally requested in this case was either correct or necessary.

Regardless, the appellant does not argue on appeal that his requested charge should have been given; rather, appellant contends that 18 Pa.C.S.A. 505(b)(2)(i) changed the law of self-defense. In this context, we fail to see Bayard’s relevancy. Bayard is a pre-Code case; it was decided on the basis of the common law free from fault standard. It does not appear among the cases cited in the Official Comment as having been codified by the enactment of 18 Pa.C.S.A. § 505, and it is not mentioned in the legislative history of the Code. Therefore, we find that Bayard is not relevant to our present inquiry.

Having considered and rejected each of appellant’s arguments, we find no merit in the appellant’s contention that the trial court's charge to the jury constituted prejudicial and reversible error. Because we find no merit in the appellant’s underlying claim, we find no merit in his claim of ineffective assistance of counsel predicated on that claim. See Taylor, supra; Hubbard, supra

Based upon the foregoing reasons, judgment of sentence is AFFIRMED.

      . The better practice, where counsel seeks to argue a novel theory of law, is to submit a point for charge on the subject and thereby ascertain, in advance of closing argument, whether the trial court would apply the particular legal proposition to the instant trial; if the court denies the request, the issue may be preserved for appellate review. Commonwealth v. Gwaltney, 479 Pa. 88, 93 n. 5, 387 A.2d 848, 850 n. 5 (1978).

      . Because the parties have fully briefed and argued this issue, we find that interests in judicial economy warrant review of this claim. Upon review of the record, we find that the PCHA hearing previously conducted provides an adequate basis for a review of the merits, without resort to another remand for another evidentiary hearing and the inevitable appeal to this Court, which would follow.

      . See, for example, the Official Comments to 18 Pa.C.S.A. § 110 (This section modifies present law ...); § 305 (Subsection (b): There is no similar provision in existing law. The purpose is to ‘tone down' absolute or strict liability in penal law as a whole.); § 306 (Subsection (g): This subsection changes existing law ...); § 309 (Subsection (a): This subsection liberalizes existing law ...); § 504 (This section is intended to more clearly define and codify ...); § 507 (This section ... is intended to define more precisely ...); § 901 (The purpose of this ... section is to change existing case law ...); § 907 (This section broadens existing law ...); § 908 (This section broadens and consolidates the various existing provisions). The Official Comments áre reprinted following the Code sections to which they apply in 18 Pa.C.S.A. §§ 101-908 (Purdon’s Supp.1986).

      . Because we find no error with respect to the self-defense charge, we need not consider whether error in that regard would have been harmless.