author: HERRON, J.,

text:
    Quantitative Financial Strategies Inc. v. Morgan Lewis & Bockius LLP

      James Crumlish, for plaintiff.

      Mason Avrigian, for defendant.
    March 12, 2002
   HERRON, J.,

I. INTRODUCTION

The motion for issuance of a writ of seizure that has been filed in this case by Quantitative Financial Strategies raises the novel issue of whether a law firm may retain a copy of a client’s file after turning the entire file over to the client. For the reasons set forth below, this court concludes that QFS is not entitled to the issuance of a writ of seizure for the law firm’s copy of plaintiff’s file.

H. BACKGROUND

Plaintiff Quantitative Financial Strategies Inc. filed a complaint in replevin against its former, law firm, Morgan, Lewis & Bockius, seeking an order for the seizure and return of all plaintiff’s files, documents and things, including copies of its files and documents in whatever medium. It also filed a motion for issuance of a writ of seizure pursuant to Pa.R.C.P. 1075.1.

QFS alleges that on December 17, 2001, it received a copy of a “secret letter” that Morgan sent to one of QFS’s direct competitors. QFS attached a copy of this letter as exhibit “A,” which explains, inter alia, the terms of Morgan’s preferred legal representation and potential conflicts of interest. QFS characterizes this communication as “a knowing violation of the legal fiduciary and ethical duties defendant owes plaintiff.” Several days later on December 21, 2001, QFS demanded Morgan to return all of its files and other documents. QFS now alleges that Morgan has refused to return its property or confirm that they have made no copies of it.

Morgan, in response, denies that it refused to return its former clients’ files and documents. In its answer, Morgan states that QFS’s president, Dr. Sanford Grossman, sent a letter to Francis Malone, the chairman of Morgan, in which he requested the return of the “complete files relating to your firm’s representation of my wife and I.” Dr. Grossman stated that he would make arrangements to pick up the documents “no later than 5 p.m. tomorrow, December 21, 2001.” Answer, ¶11 and exhibit A.

According to the defendant law firm, Thomas Kittredge of Morgan responded to this request with a letter dated December 21, 2001. In that letter, Kittredge stated that he had requested Central Files to retrieve the files from storage in the warehouse, but that this could not be achieved by 5 p.m. He hoped that despite the Christmas holidays, the files would be available by the end of the week. Answer, ¶11 and exhibit C. On December 28, 2001, Mr. Kittredge sent a letter to QFS’s attorney, James Crumlish, reaffirming that he had requested the files for the Grossmans and QFS and that he had been informed by the London office that the files had been forwarded. Mr. Kittredge also responded to the request that Morgan neither retain nor make copies of any documents and confirm that all relevant computer records had been deleted: he wrote that “we shall appreciate being advised as to the legal basis for such a request.” Answer, ¶13, exhibit D (letter dated December 28, 2001).

By letter dated January 3, 2002, counsel for Morgan, Mason Avrigian, informed plaintiffs’ attorney that the files and documents they had requested were available to be picked up at their offices. The letter then addressed the plaintiffs’ request that the firm not retain any copies of these documents. Mr. Avrigian stated that Morgan would release the files, without retaining copies, conditioned on the receipt of the following:

“(1) A release executed by QFS, Dr. Grossman and Mrs. Grossman. A copy of the required release is attached.
“(2) An executed praecipe to mark the above-referenced action [the action in replevin] settled, discontinued and ended with prejudice.”

m. LEGAL ANALYSIS

A. Motion for Writ of Seizure

The procedure for the issuance of a prejudgment writ of seizure after notice and hearing is set forth in Pa.R.C.P. 1075.1. It provides that after a complaint has been filed, the plaintiff may file a motion for issuance of a writ of seizure and the court will schedule a hearing:

“The hearing shall be held whether or not the defendant or other person found in possession of the property appears. If the court is satisfied that notice as provided by this rule has been given or a reasonable attempt to give notice has been made, it shall determine from the complaint, affidavits, testimony, admissions or other evidence, whether the plaintiff has established the probable validity of the claim, and, if so, it may order a writ of seizure to be issued upon the filing of a bond as provided by Rule 1075.3.” Pa.R.C.P. 1075.1(e).

In deciding whether a writ of seizure should issue, “the court must determine from the complaint, affidavits, testimony, admissions or other evidence which may be received whether the plaintiff has established the probable validity of his or her claim.” 4 Goodrich-Amram 2d section 1075.1(e):1 (1991). See also, Hamilton Bank v. Seiger, 22 D.&C.3d 534, 537 (Berks Cty. 1982).

The hearing that was held in response to plaintiff’s motion for a writ of seizure was attended by counsel for both parties. Hence, the requirement for proper notice was met. At the hearing it was agreed that defendant Morgan has made the QFS file available to its former client but QFS refused to accept it unless Morgan’s copy of the file is also delivered at the same time. The narrow issue before this court is therefore whether the former client, QFS, has a property interest in a copy of its file that would preclude Morgan from retaining this copy created at Morgan’s expense. The parties agreed that this issue should be resolved on the briefs they would file after the hearing. 1/15/2002 N.T. at 3-4.

B. Standard for an Action in Replevin

In an action in replevin, the issue is limited to “the question of title and the exclusive right of possession.” Blossom Products Corp. v National Underwear Co., 325 Pa. 383, 386, 191 A. 40, 41 (1937). See also, International Electronics Co. v. N.S.T. Metal Products Co. Inc., 370 Pa. 213, 218, 88 A.2d 40, 43 (1952). Because an action in replevin focuses exclusively on title and right of possession, any other matters may not be considered as defenses or counterclaims. Ford Motor Credit Co. v. Caiazzo, 387 Pa. Super. 561, 566, 564 A.2d 931, 933 (1989). The primary relief sought in an action of replevin is “the return of the property itself.” Valley Gypsum Co. Inc. v. Pennsylvania State Police, 135 Pa. Commw. 548, 553, 581 A.2d 707, 710 (1990).

The burden of proof in an action of replevin lies initially upon the plaintiff. As the Superior Court has observed in Gensbigler v. Shawley, 162 Pa. Super. 642, 643, 60 A.2d 360, 361 (1948), the “plaintiff has the burden of establishing by adequate proof such an interest in the property replevied as entitles him to exclusive possession.” Consequently, “in a replevin action, the plaintiff must establish his right to possession by a preponderance of the evidence, whereupon the burden shifts to the defendant to prove his right to retain possession.” Petition of Allstate Insurance Co., 289 Pa. Super. 329, 333, 433 A.2d 91, 93 (1981). See also, Johnson v. Staples, 135 Pa. Super. 274, 280, 5 A.2d 433, 436 (1939). See Austin v. Borough of Ligonier, 122 Pa. Commw. 161, 551 A.2d 403 (1988) (Where borough had a presumption of ownership of painting due to its 17 years of possession, the burden of going forward to rebut this presumption shifted to the defendant).

The narrow issue before this court, therefore, is whether plaintiff has a probable likelihood of proving an interest in copies of its files maintained by Morgan that would entitle QFS to exclusive possession of those copies. QFS has defined the property at issue as “any and all documents, and any and all copies of those documents in whatever medium, in the possession of Morgan, which relate to its legal representation of QFS.” QFS 1/22/2002 memorandum at 5. (emphasis added) It specifically excludes documents that relate solely to Morgan’s business such as internal billing and accounting records or references to other clients. Id. at 5 n.5.

Unfortunately, neither this court nor the parties were able to unearth precedent directly on point. Plaintiff relies heavily on Maleski v. Corporate Life Insurance Co., 163 Pa. Commw. 36,641 A.2d 1 (1994), and the dictates of Pa.R.P.C. 1.15(b) for its claim of a property interest in the copies of its files. Maleski, however, is not disposi-tive as to plaintiff’s claims for several reasons. First, its procedural context is inapposite; second, it relies on a case, Resolution Trust, infra, which suggests that attorneys may maintain copies of client files despite the client’s possessory interest in those files; and Maleski does not focus at all on the precise issue of possessory interests in copies of client files.

Maleski was not cast, like the QFS action, as an action in replevin with the necessary sharp focus on property interest. Instead, Maleski analyzed a law firm’s proprietary interest in a client’s files from the perspective of the rules of discovery, the work product doctrine and Pa.R.P.C. 1.15(b). In analyzing more specifically whether the law firm held a “proprietary interest in its work-product” which would support a refusal of disclosure, the Maleski court noted that this issue had also been addressed in Resolution Trust Corporation v. H_ _ _ _ P.C., 128 F.R.D. 647 (N.D. Tex. 1989). In finding the reasoning of Resolution Trust “persuasive” in the context of Pa.R.P.C. 1.15(b), the Maleski court concluded:

“Notes and memoranda are part of the package of goods and services which a client purchases when they retain legal counsel. The client is entitled to the full benefit of that for which they pay. We therefore believe that once a client pays for the creation of a legal document, and it is placed in the client’s file, it is the client, rather than the attorney who holds a proprietary interest in that document. When a client requests that its property held by an attorney be turned over, under Rule 1.15(b) the attorney must comply.” Maleski, 163 Pa. Commw. at 46-47, 641 A.2d at 6.

This conclusion that an attorney must turn over a client’s file upon his request and that the client has a proprietary interest in his file is not explicitly compelled by Pa.R.P.C. 1.15(b) which merely provides that “a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive, and upon request by the client or third person, shall promptly render a full accounting regarding such property.” (emphasis added) The rule does not, for instance, define what property the client is entitled to receive. Similarly, another Rule of Professional Conduct relevant to this case in which a legal representation has been terminated, Pa.R.P.C. 1.16(d), emphasizes the requirement for an attorney to turn over property “to which the client is entitled” while providing that the attorney may retain “papers relating to the client to the extent permitted by other law”:

“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable, to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law. ” Pa.R.P.C. 1.16(d).

This reference to other law in the relevant rules explains the Male ski court’s need to consider precedent from other jurisdictions. The cases from other jurisdictions requiring an attorney to turn over a client’s file upon his request are legion. Moreover, numerous courts have concluded that as between an attorney and a client, the file belongs to the client. There is, however, some variation among this precedent as to the scope of a client’s access to the file. The majority view as set forth in Resolution Trust and Maleski is that a client should have access to the entire file, while other courts such as Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30, 689 N.E.2d 879, 666 N.Y.S.2d 985 (1997), have adopted this majority position with exceptions for documents that might violate a duty of nondisclosure to third parties or for documents intended for internal “law office review and use.” Other courts in examining the

ownership of a client’s file have distinguished between those products owned by the client (the “end product”) and those owned by the attorney (the “work product”). Federal Land Bank of Jackson in Receivership v. Federal Intermediate Credit Bank of Jackson, 127 F.R.D. 473, 478-80 (S.D. Miss. 1989), rev’d on other grounds, (i. e. retaining lien). Federal Land Bank of Jackson v. Federal Intermediate Credit Bank of Jackson, 128 F.R.D. 182 (S.D. Miss. 1989). Finally, one court has distinguished ethical requirements from property interests to conclude that the client does not possess an ownership interest in his file but “a right of access to the information in the documents” which “is not property in the traditional sense.” Corrigan v. Armstrong Teasdale, Schlafly, Davis & Dicus, 824 S.W.2d 92, 95 (Mo. Ct. App. 1992). As the Corrigan court observed:

“This protection of the client’s interests, however, is satisfied simply by imposing a duty upon the attorney to surrender copies of those papers containing information needed by the client to protect his interests. This duty is created by the ethical imperatives of the practice of law, and it may even have a counterpart in a legal duty. But, the client’s correlative right to the attorney’s performance of his ethical duty need not be and is not a property right.” Corrigan, 824 S.W.2d at 98.

Morgan, however, does not dispute that the original file should be returned to its former client, QFS. Instead, it argues for its right to maintain a copy of those files. Morgan 1/22/2002 memorandum at 8. Unfortunately, none of these previously cited cases focus on this narrow issue.

The sole Pennsylvania case cited by either party as dealing with access to a client’s file, Maleski v. Corporate Life Insurance Co., did discuss “proprietary interests” in general terms. It stated that “once a client pays for the creation of a legal document, and it is placed in the client’s file, it is the client, rather than the attorney who holds a proprietary interest in that document.” Maleski, 163 Pa. Commw. at 47, 641 A.2d at 6. This does not address the issue, however, of proprietary interests in copies of the file. Moreover, in reaching this conclusion, the Maleski court explicitly stated that it had found the reasoning of Resolution Trust Corporation v. H_ _ _ _P.C., persuasive.

In Resolution Trust Corporation v. H_ _ _ _ P.C., 128 F.R.D. 647 (N.D. Tex. 1989), the Texas district court embraced the broad holding that the entire contents of files generated by a law firm in its representation of a client belong to the client. Resolution Trust, 128 F.R.D. at 647. Despite this broad holding that former attorneys may not withhold anything from the file, the court twice suggested that any materials that an attorney wished to keep “may be copied at its own expense.” Resolution Trust, 128 F.R.D. at 648, 650.

It is in this context of who is responsible for paying for copying fees that the issue of copies of client files typically emerges. When analyzing this issue, courts conclude either that the attorney must pay the copy fees for any documents he intends to keep from the client’s file or that it is improper to condition access to the client file on the payment of copying fees by the client. Averill v. Cox, 145 N.H. 328, 761 A.2d 1083, 1092 (2000) (concluding that the client owns his file and the attorney is required “to bear the expense of retaining a copy”); In re Admonition of XY, 529 N.W.2d 688, 690 (Minn. 1995) (concluding that file was properly returned to client who owned it but that attorney improperly required client to pay for copying fees); In re Van Baalen, 123 Ariz. 82, 597 P.2d 985 (1979) (attorney improperly conditioned turning over file on client’s payment of copying fees). See also, Ethics Advisory Op. 92-37 1993 WL 851331 S.Carolina Bar. Eth. Adv. Comm. (suggesting that when a lawyer is fired by his client, he must return any materials provided by the client but he may maintain a copy at his own expense).

Either approach suggests an implicit acceptance of an attorney’s right to maintain copies of client files. In this vein, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility in an informal opinion has advised “to the extent you [i.e., an attorney] wish to retain any portion of the file, the associated duplicating expense should be treated by you as ‘a cost of doing business’ and should not be billed to the client.” 1996 WL 935295, Pa. Bar. Assn. Comm. Leg. Eth. Prof. Resp. In. Op. no. 96-157 (11/20/96). See also, 1994 WL 928016 Pa. Bar Assn. Com. Leg. Eth. Prof. Resp. In. Op. no. 94-17 (2/16/94) (where client file is copied by firm to protect itself from lawsuit, copying fees should be paid by attorney).

The Restatement (Third) of Law Governing Lawyers, section 46 (1998), also recognizes an attorney’s implicit right to maintain copies of client files:

“Except under extraordinary circumstances — for example, when a client retained a lawyer to recover and destroy a confidential letter — a lawyer may keep copies of documents when furnished to a client.” Restatement (Third) of Law Governing Lawyers, section 46 comment d.

Section 46 of the Restatement (Third) of Law Governing Lawyers has been characterized as embracing the majority view adopted by Maleski and Resolution Trust that clients should have full access to their files since section 46 provides that “[o]n request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation unless substantial grounds exist to refuse.” This suggests that the comment to section 46 stating that an attorney may keep copies of documents furnished by a client is compatible with the general reasoning in Maleski and other cases taking a similarly expansive view of a client’s access to his file.

In fact, when the reasoning of cases that have adopted the view that a client should have full access to his file is examined, their rationales are consistent with a view that an attorney may keep copies of documents except under extraordinary circumstances. The most clearly stated rationale for allowing full access by clients to their files is perhaps found in Sage Realty. In Sage Realty, the court concluded that an expansive view of a client’s access to his file is supported by an attorney’s ethical obligations and fiduciary relationship with his client that require “openness and conscientious disclosure.” Sage Realty, 91 N.Y.2d at 37, 689 N.E.2d at 882, 666 N.Y.S.2d at 988. This fiduciary relationship has, as a counterpart to full disclosure, an obligation to protect a client’s confidences — an obligation that does not end with the termination of an attorney-client relationship. This obligation would thus afford protection to a client from any potential misuse of files retained by an attorney. See e.g., Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 252, 602 A.2d 1277, 1283 (1992) (recognizing “the common-law foundation for the principle that an attorney’s representation of a subsequent client whose interests are materially adverse to a former client in a matter substantially related to matters in which he represented the former client constitutes an impermissible conflict of interest actionable at law”); Pa.R.P.C. 1.6; 1.7; 1.9.

A second basis for the expansive view adopted by Sage Realty is its view that the more limited access embraced by the minority view “unfairly places the burden on the client to demonstrate a need for specific work product documents in the attorney’s file on the represented matter.” Sage Realty, 91 N.Y.2d at 36, 689 N.E.2d at 882, 666 N.Y.S.2d at 988. Allowing an attorney to keep copies of the files turned over to the client in no way impacts on the client’s ability to access any relevant documents within the complete files he has received.

Finally, th eMaleski court interjects a pragmatic financial consideration in explaining its rationale for its finding of a client’s proprietary interest in his file when it observes that “[njotes and memoranda are part of the package of goods and services which a client purchases when they retain legal counsel.” Maleski, 163 Pa. Commw. at 46-47, 641 A.2d at 6. (emphasis added) If an attorney copies a client’s file at the attorney’s expense, he is, in essence, purchasing his own stake in the documents he created without added expense to the client.

QFS, however, relies on cases other than Maleski to establish its property interest in copies of its files. It thus invokes general principles of property law as well as Loretto v. Teleprompter, 458 U.S. 419 (1982), and Borough of Boyertown Appeal, 77 Pa. Commw. 357, 466 A.2d 239 (1983). These two cases are factually distinguishable: neither involved property rights to copies of property but rather they both focused on specific, physical property interests. In Loretto, for instance, the United States Supreme Court focused on whether a New York law requiring a landlord to permit a cable television company to install cable facilities upon its property constituted a taking requiring just compensation under the Fifth and Fourteenth Amendments. In concluding that this physical operation was a taking, the court observed — as QFS has subsequently emphasized — that “property rights in a physical thing have been described as the rights ‘to possess, use and destroy it.’ ” Loretto, 458 U.S. at 435. (citation omitted) In the instant case, however, Morgan does not challenge QFS’s physical possession of its file. Rather, it suggests that QFS has failed to establish exclusive property interests in the copies of those files. Likewise, Borough of Boyertown Appeal, which QFS cites for the proposition that “also included in the bundle of rights constituting ‘property’ is the right to exclude other persons from using the thing in question” deals not with copies of property but with an eminent domain case focusing on rights to a system of water-distribution mains under public streets. Borough of Boyertown Appeal, 77 Pa. Commw. at 364-65, 466 A.2d at 241.

Finally, QFS invokes The Chesapeake and Ohio Railway Co. v. Burkentine, 45 D.&C.3d 344 (York Cty. 1987), which is likewise factually inapposite. The defendants in Burkentine sold microfiche containing the names and confidential information concerning plaintiff’s employees. The defendants had never been employed by plaintiff nor was there any evidence as to how they gained access to the microfiche employee lists. Id. at 347. In this case, their action would have been wrongful whether they had sold the original employee lists or the copy lists. The facts are clearly distinguishable from the present case involving attomey/client files where mies of professional conduct protect a client from wrongful disclosure. Pa.R.P.C. 1.6.

In light of this dearth of precedent establishing a client’s sole property interest in copies of his file and persuasive precedent recognizing an attorney’s option to copy client files at his own expense, this court concludes that QFS is not entitled to issuance of a writ of seizure for the copies that Morgan has reproduced at its own expense.

The allegations in the plaintiff’s complaint, however, of potential misuse of information in its file due to an alleged conflict of interest suggests the possibility of the “exceptional circumstance” set forth in section 46, comment d of the Restatement (Third) of Law Governing Lawyers. As the Maleski court emphasized, under “statute, common law, and the Rules of Professional Conduct governing attorneys, Pennsylvania has recognized that confidential communications from a client to an attorney are immune from disclosure.” Maleski, 163 Pa. Commw. at 40, 641 A.2d at 2 (citing 42 Pa.C.S. §§5916, 5928; Pa.R.P.C. 1.6; Estate of Kofsky, 487 Pa. 473, 409 A.2d 1358 (1979)). Admittedly, QFS would be able to assert a claim against Morgan if that law firm improperly disclosed confidential communications by QFS to an adverse party presently represented by Morgan. Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992).

Nonetheless, in light of the particular facts of this case and the uncharted legal waters, it is prudent to provide an additional degree of protection for the client. While ruling that Morgan may retain a copy of the QFS file that has been copied at Morgan’s expense, we advise and suggest that the copy shall be stored at Morgan’s expense in an independent repository that would provide notice to the former client prior to access by Morgan. This arrangement would afford QFS the option of judicial scrutiny of any future access by Morgan to the copy of its file and, as well, protect Morgan from unfounded claims of misuse of the copied client file.

      . QFS attached this letter to its complaint as exhibit “A.” Morgan disputes this characterization of its correspondence as a “secret letter,” describing it instead as an engagement letter pertaining to its representation of its new client. Answer, ¶4.

      . Complaint in replevin, ¶8. The substantive issue of Morgan’s alleged breach of fiduciary duty is beyond the scope of this opinion.

      . Complaint in replevin, ¶¶12-13 and 16.

      . Complaint in replevin, ¶¶ 1-13.

      . Answer, exhibit E (1/3/2002 letter from Mason Avrigian). It is this court’s recollection that Morgan abandoned these conditions prior to the hearing although the transcript does not reflect this.

      . See 1/15/2002 N.T. at 3. Morgan 1/28/2002 memorandum at 3 and exhibit A (file was copied at Morgan’s expense).

      . The Maleski court initially had to grapple with the complex issue of whether a stock life insurance company’s law firm was required to turn its records over to the law firm that represented the Statutory Liquidator after the life insurance company was dissolved and liquidated. This issue led inexorably into an analysis of whether the Statutory Liquidator could waive any attorney-client privilege that might preclude this transfer of records. Maleski, 163 Pa. Commw. at 40, 641 A.2d at 2-3.

      . It concluded that none of the documents were immune to disclosure under the work product doctrine. It noted that federal courts have concluded that the work product doctrine may be invoked during discovery, grand jury investigations and Freedom of Information Act requests but not against a client who seeks access to his own file. These principles have likewise been embraced by Pennsylvania procedural rules and appellate precedent. Maleski, 163 Pa. Commw. at 44-45, 641 A.2d at 5.

      . See e.g., Arizona: In re Struthers, 179 Ariz. 216, 877 P.2d 789, 797-98 (1994) (attorney violated ethical rales in refusing to give client and her new counsel access to her files); In re Van Baalen, 123 Ariz. 82, 597 P.2d 985 (1979) (attorney engaged in unprofessional and unethical conduct in conditioning access to client’s file upon payment of a copying fee). California: Kallen v. Delug, 157 Cal. App. 3d 940, 950, 203 Cal. Rptr. 879, 885 (Cal. Ct. App. 1984) (it is a breach of the Rules of Ethics for attorney to retain a client’s files after discharge and request for those files); Academy of California Optometrists Inc. v. Superior Court, 51 Cal. App. 3d 999, 1006, 124 Cal. Rptr. 668, 672 (Cal. Ct. App. 1975) (attorney may not retain client files by asserting contractual retaining hen to extort fees); In re Ramirez v. Fuselier, 183 B.R. 583, 587 (Bank. 9th Cir. 1995) (under California law, an attorney is required to turn over a client’s file promptly upon his request). Indiana: McKim v. Indiana, 528 N.E.2d 484 (Ind. Ct. App. 1988) (in light of professional rules of conduct, court has no discretion but to grant motion to compel attorney to turn over to his client all documents obtained pertaining to that representation). Minnesota: In re Admonition XY, 529 N.W.2d 688, 690 (Minn. 1995) (file belonged to client and was properly returned to her upon her request). Tennessee: Crawford v. Logan, 656 S.W.2d 360 (Tenn. 1983) (attorney violated disciplinary rule in failing to turn over tape to client involved in divorce action with husband).

      . Georgia: Matter of Kaleidoscope Inc. v. Powell, Goldstein, Frazer & Murphy, 15 B.R. 232, 241 (Bankr. N.D. Ga. 1981), rev’d for lack of jurisdiction by, In the Matter of Kaleidoscope Inc. v. Powell, Goldstein, Frazer & Murphy, 25 B.R. 729 (N.D. Ga. 1982) (in re-plevin action, title to original files amassed during an attorney’s representation belongs to the legal successor to client based on agent/principal analysis). Minnesota: In re Admonition XY, 529 N.W.2d 688, 690 (Minn. 1995) (file “belonged” to client). New Hampshire: Averill v. Cox, 145 N.H. 328, 761 A.2d 1083, 1092 (2000) (file is owned by the client). New York: Matter of Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP, 91 N.Y.2d 30, 36, 689 N.E.2d 879, 882, 666 N.Y.S.2d 985, 988 (1997) (noting that “courts also have refused to recognize a property right of the attorney in the file superior to that of the client”); Bronx Jewish Boys v. Uniglobe, 166 Misc. 2d 347, 633 N.Y.S.2d 711, 713 (N.Y. Sup. Ct. 1995) (files belong to client). Texas: Resolution Trust Corp. v. H_ _ _ _ PC., 128 F.R.D. 647 (N.D. Tex. 1989) (entire contents of a file belong to the client).

      . See Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30, 34, 689 N.E.2d 879, 881, 666 N.Y.S.2d 985, 987 (1997) (describing the majority and minority views). For a discussion of the various views as to the ownership of documents within a client’s file, see Slovut, “Eliminating Conflict at the Termination of the Attorney-Client Relationship: A Proposed Standard Governing Property Rights in the Client’s File,” 76 Minn. L.Rev. 1483 (1992).

      . Sage Realty Corp., 91 N.Y.2d at 37-38, 689 N.E.2d at 883, 666 N.Y.S.2d at 989. Some examples of documents that would fall within this exception include an attorney’s assessment of the client, or preliminary impressions of the issues presented by the case. The rationale for limiting access to such documents is their limited value to the client or successor attorney as well as recognition of “the need for lawyers to be able to set down their thoughts privately” to assure effective representation. Id. See generally, Connors, “1997-98 Survey of New York Law: Professional Responsibility,” 49 Syracuse L.Rev. 679, 693 (1999) (noting that Sage Realty “carved out an important exception for documents intended for internal law office review”).

      . See also, Allen, “Ownership of Lawyer’s Files About Client Representations: Who Gets the ‘Original’? Who Pays for the ‘Copies?,’ ” 79 Mich. B J. 1062 (August 2000) (describing Formal Ethics Opinion R-19 (8/14/2000) of the State Bar of Michigan Bd. of Commissioners as concluding that file belongs to the lawyer, with the client entitled to access to the file).

      . Corrigan, 824 S.W.2d at 98. In Corrigan, the widow of the defendant law firm’s client brought an action in replevin seeking delivery of the documents in his file.

      . Restatement (Third) of Law Governing Lawyers, section 46(2) (1998). The Restatement was characterized as essentially adopting this majority view by Sage Realty Corp. v. Proskauer, 91 N.Y.2d at 34, 689 N.E.2d at 881, 666 N.Y.S.2d at 987.

      . QFS 1/22/2002 memorandum at 6.

      . QFS 1/22/2002 memorandum at 6.


source: Caselaw Access Project

author: JENKINS, J.,

license: Public Domain

text:
    Commonwealth v. Smith

      C.P. of Delaware County,
    nos. 32-00 and 665-00.

      A. Sheldon Kovach, for plaintiff.

      Denise W.L. McRae and Karl Baker, for defendant.
    January 2, 2002
   JENKINS, J.,

I. FACTS AND PROCEDURAL HISTORY

This is an appeal by the Commonwealth from an order entered by this court on June 28, 2001, declaring the “sexually violent predator” provisions of Megan’s Law II unconstitutional. (No other provisions of the statute were challenged, and therefore no others were affected by the order.)

On September 15, 2000, Matthew Smith, appellee, entered a negotiated plea of guilty in case no. 32-00 to one count of indecent assault and two counts of corrupting morals of children; and entered a negotiated plea of guilty in case no. 665-00 to one count of involuntary deviate sexual intercourse. The court ordered the appel-lee to be assessed by the Sexual Offenders Assessment Board to determine whether the appellee should be classified as a sexually violent predator and thereby made subject to the notification and lifetime counseling requirements of the Registration of Sexual Offenders Act, commonly known as “Megan’s Law II,” and referred to as the Act.

The board completed its assessment and issued a report that identified the appellee as a sexually violent predator. The Commonwealth filed a praecipe for a hearing on this issue, and on January 12, 2001, the appellee filed a motion for extraordinary relief that challenged the constitutionality of the Act. The court heard oral argument on the appellee’s motion on January 29, 2001. An evidentiary hearing was held on January 30, 2001.

On June 29, 2001, the court entered an order that declared the “sexually violent predator” provisions of the Act unconstitutional.

On July 23, 2001, the appellee was sentenced in accordance with the terms of the negotiated plea agreement to an aggregate sentence of seven to 14 years.

On July 30, 2001, the Commonwealth filed a timely notice of appeal from the court’s order of June 28, 2001, that declared the “sexually violent predator” provisions of Megan’s Law II unconstitutional.

n. DISCUSSION

This court has determined that the notification and lifetime counseling provisions of the Act constitute enhanced punishment, and therefore that subjecting the appellee to these provisions upon determination that he is a sexually violent predator by clear and convincing proof, rather than by proof beyond a reasonable doubt, constitutes a violation of the appellee’s right to due process of law.

Section 9792 of the Act defines “sexually violent predator” as “a person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.”

Section 9798 of the Act provides for public notification of the offender’s status as a sexually violent predator. This notification includes (1) the distribution to his neighbors of a written notice containing the offender’s name, home address and photograph, plus a statement that he has been judicially declared to be a sexually violent predator; (2) the distribution of this same notice to all public and private school systems, county children and youth service agencies, and licensed daycare, preschool and family daycare organizations located in the municipality in which the offender resides; (3) distribution of the notice to any college within a thousand feet of the offender’s home; and (4) distribution of the above information to the general public, either upon request or by any “electronic means” that the state may choose.

It is important to note that while the Act provides for the foregoing mandatory notification, it contains no bar to any additional form or amount of notification. It is conceivable that public officials, many of whom enjoy a degree of civil immunity, could even more widely disseminate this information with impunity.

The Act also requires sexually violent predators to receive lifetime counseling at their own expense. The Act does not provide any means for the status of an offender as a sexually violent predator to be changed. The Act does not provide for subsequent judicial review upon just cause shown. An offender who has been made subject to the notification and lifetime counseling provisions remains subject to those provisions for the rest of his life.

This court adopts the reasoning of Montgomery County Common Pleas Judge Thomas M. Del Ricci in finding that the foregoing provisions, when taken as a whole, are not reasonably related to a non-punitive and legitimate legislative purpose, and therefore constitute enhanced punishment. Commonwealth v. Breyer, PICS case no. 01-2147 (Montgomery Cty. October 22, 2001) (en banc) Del Ricci, J. (Judge Del Ricci’s opinion is hereby attached as appendix “A” [not published here]). As such, individuals subjected to these enhanced sentencing schemes are entitled to be judged by proof which exceeds the clear and convincing standard relative to the issues which justify imposition of the enhanced penalty. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). For this reason, the sexually violent predator provisions of Megan’s Law II were determined to be unconstitutional.

Finally, it should be noted that this court explicitly ruled that in light of the foregoing decision, all other claims for extraordinary relief were dismissed as moot.

      . 18 P.S. §3136.

      . 18 P.S. §6301.

      . 18 P.S. §3123.

      . 42 Pa.C.S. §9791 et seq.

      . The list of offenses set forth in section 9795.1 includes indecent assault and involuntary deviate sexual intercourse.


author: MOTTO, J.,

text:
    Pisciuneri v. Esposito
    C.P. of Lawrence County,
    no. 10649 of 1997 C.A.

      Joseph P. Valentino, for plaintiff.

      Charles W. Garbett, for defendant.
    December 17, 2001
   MOTTO, J.,

This matter is before the court on post-verdict motions filed by each of the parties.

This case arises out of an automobile accident that occurred on April 14, 1997. On that date, the plaintiff was operating an automobile in a northerly direction on State Route 18 in Lawrence County, Pennsylvania, while at the same time the defendant was operating her vehicle in a southerly direction on such highway in the center lane intending to make a left turn off of State Route 18 onto Hazelcroft Avenue. The trial evidence proved that the defendant operated her vehicle into the path of the plaintiff’s lane of travel and that a collision ensued.

At trial, four medical experts testified, three of which were called to testify by the plaintiff and one of which was called to testify by the defendant. The defendant’s expert had conducted an independent medical evaluation of the plaintiff. All four medical experts testified that the plaintiff had suffered physical injury as the result of the automobile accident of April 14, 1997, although there was a great disparity in the extent of physical injury between the plaintiff’s medical experts and the defendant’s medical expert.

The jury returned a verdict in favor of the defendant and against the plaintiff finding that the defendant was negligent, but also finding that the negligence of the defendant was not a substantial factor in bringing about the plaintiff’s harm.

The plaintiff requests that the court award the plaintiff a new trial because the verdict is against the weight of the evidence. The court agrees that the verdict in this case is against the weight of the evidence and accordingly will award the plaintiff a new trial. At trial, there was no dispute between the parties that the plaintiff sustained injuries as the result of the accident. The dispute at trial was only as to the severity of the injuries suffered by the plaintiff. Although the plaintiff’s medical experts testified as to an injury that had not resolved itself as of date of trial and would continue into the future, the defendant’s medical expert testified that the plaintiff suffered an injury from the automobile accident that should have resolved itself within six weeks.

The Pennsylvania Supreme Court in Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985), has held that it is a trial court’s inherent fundamental and salutary power and duty to grant a new trial when it believes the verdict is against the weight of the evidence and resulted in a miscarriage of justice. See also, Burchard v. Seber, 417 Pa. 431, 438, 207 A.2d 896, 899 (1965). Although a new trial should not be granted because of a mere conflict in testimony or because a trial judge on the same facts would have arrived at a different conclusion, a new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Company, 438 Pa. 286, 265 A.2d 516 (1970). The grant of a new trial on the basis that the verdict is against the weight of the evidence is a discretionary decision by the trial judge, whose decision will not be reversed on appeal unless the court has exceeded the limits of judicial discretion and has invaded the exclusive domain of the jury. Exner v. Gangewere, 397 Pa. 58, 60, 152 A.2d 458, 460 (1959).

Here, there was no dispute at trial that the plaintiff was injured as the result of the accident. The expert testimony of the plaintiff’s medical experts versus the medical expert of the defendant differed only to the extent, severity and duration of her injuries.

The facts in this case are virtually identical to the facts in Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997). In Craft, the plaintiff was injured as the result of an automobile accident with the defendant decedent. At the trial, the jury concluded that the defendant decedent was negligent in operating his vehicle, but that the decedent’s negligence was not a substantial factor in bringing about harm to the plaintiff. The plaintiff filed a motion for a new trial which was granted by the trial court. The decision of the trial court was appealed to the Superior Court which affirmed the order of the trial court and dismissed the appeal holding that the trial court did not abuse its discretion when it found that the jury determination that the defendant’s negligence was not a substantial factor in bringing about harm to the plaintiff, was against the weight of the evidence, and shocked the trial court’s sense of justice.

In Craft, the facts of the accident were that the plaintiff was traveling north on the public highway when a vehicle operated by the defendant decedent was stopping in the southbound lane. The defendant decedent drove into the plaintiff’s lane of traffic and a collision occurred with the vehicle of the defendant decedent stopped in the middle of the oncoming lane of the plaintiff and the vehicle of the defendant decedent being partially in the plaintiff’s lane of traffic and across the double yellow line which divided the north-bound and south-bound lanes.

In Craft, as in the case at bar, the plaintiff sustained injuries as the result of the accident. In Craft, as here, at trial there was no dispute that the plaintiff was injured as a result of the accident. In Craft, as here, the expert testimony of the medical experts of the plaintiff and the defendant differed only to the extent, severity and duration of the plaintiff’s injuries.

In Craft, as here, in response to interrogatories contained in the verdict, the jury concluded that the defendant decedent was negligent, but also determined that the negligence of the defendant decedent was not a substantial factor in bringing about harm to the plaintiff.

In Craft, the lower court reasoned that the weight of the evidence clearly demonstrated that the negligence of the defendant decedent was a substantial factor harming the plaintiff. The conclusion of the court in Craft, was based, in part, upon the medical evidence which unequivocally proved that plaintiff’s injuries were a direct result of the accident.

The court here cannot differentiate this case from decision of the Superior Court in Craft. Although the defendant did not concede liability, there was no evidence presented of any negligence on the part of the plaintiff in causing the accident, while there was ample evidence of the negligence of the defendant causing the accident. The evidence in this case revealed a substantial collision between the vehicles of the plaintiff and the defendant on a main thoroughfare and the defendant’s expert conceded injury to the plaintiff as the result of the accident. A host of appellate cases have held that a new trial was warranted in an automobile accident case where the defendant’s expert admitted that the plaintiff suffered an injury from the accident. See Rozanc v. Urbany, 444 Pa. Super. 645, 664 A.2d 619 (1995); Lewis v. Evans, 456 Pa. Super. 285, 690 A.2d 291 (1997); Mano v. Madden, 738 A.2d493 (Pa. Super. 1999); Kruczkowska v. Winter, 764 A.2d 627 (Pa. Super. 2000).

More recently, the Pennsylvania Supreme Court in Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001), has clarified the standard to be applied where a new trial is sought because of the failure of a jury to award damages for pain and suffering, where defendant’s liability is undisputed or affirmed by the jury.

In Davis, the jury awarded the plaintiff an amount for medical expenses, but awarded no damages for pain and suffering.

The trial court refused to grant the plaintiff a new trial. The Superior Court reversed the trial court, relying exclusively on Dougherty v. McLaughlin, 432 Pa. Super. 129, 637 A.2d 1017 (1994), determining that the damage award was inconsistent with the evidence presented. In Dougherty, the jury had awarded the plaintiff damages for medical costs, which failed to compensate him for pain and suffering. Dougherty presented uncontra-dicted medical evidence that his two days hospitalization included treatment for injuries to the face, neck, and head resulting in permanent scarring and nerve damage, a fractured rib, whiplash, a concussion and tom shoulder ligaments. In addition, after the accident, the plaintiff underwent surgery and scar revisions in an attempt to make the scars less obvious. The Dougherty court found the award of damages was inconsistent because the jury awarded damages for the medical expenses, but did not award damages for pain and suffering.

The Superior Court in Davis, relying exclusively on Dougherty, concluded that a jury award is inconsistent if it compensates for medical expenses stemming from claimed injuries, but does not compensate for pain from those injuries. In reversing the Superior Court, the Supreme Court in Davis found that the Superior Court foreclosed juries from making essential determinations that are within their purview. Those determinations include whether the defendant caused injuries and whether the plaintiff suffered from compensable pain, further finding that the existence of compensable pain is an issue of credibility and jurors must believe that plaintiffs suffered pain before they compensate for pain. The Supreme Court specifically rejected the Superior Court’s application of a per se rule precluding a jury from awarding medical expenses without damages for pain and suffering.

The Supreme Court opinion in Davis attempted to reconcile two lines of cases. The first line of cases consisted of trial court decisions granting new trials where juries awarded medical expenses, but declined to award damages for pain and suffering. See e.g., Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952) and Yacabonis v. Gilvickas, 376 Pa. 247, 101 A.2d 690 (1954). In the second line of cases, the Supreme Court upheld jury verdicts awarding medical expenses without corresponding awards for pain and suffering. See e.g., Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448 (1994).

In distinguishing between the two lines of cases, the court noted that in the first line of cases, the plaintiffs’ injuries were too severe for the trial courts to have had a reasonable basis to believe the juries’ awards of medical expenses, without compensation for pain and suffering was based on a determination properly within the province of the juries. Essentially, the reasoning of the court was that if the jury found that a plaintiff suffered a severe injury, it necessarily follows that the plaintiff suffered pain, as a jury may not eliminate pain from wounds when all human experience proves the existence of pain. However, in the second line of cases, the facts of those cases was such that it was not inconsistent for a jury to conclude that although the plaintiff was entitled to an award of medical expenses, it did not necessarily follow that the plaintiff suffered pain. The court focused in the second line of cases on the power of the jury as the ultimate finder of fact and the need for the judiciary to guard against usurping the role of the jury. A jury is not required to believe all that they are told and all that their common experience does not accept. Although the jury may not disregard an obvious injury, the jury is at liberty to decline to believe that every injury causes pain or the pain alleged.

In reconciling the two separate lines of cases, the specific holding of the Pennsylvania Supreme Court in Davis was as follows:

“Today, we hold that a jury’s award of medical expenses without compensation for pain and suffering should not be disturbed where the trial court had a reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering; or (2) that a pre-existing condition or injury was the sole cause of the alleged pain and suffering.” Id. at 391, 773 A.2d at 767.

In Davis, in affirming the award of zero damages for pain and suffering, the court noted that Davis’ testimony about his pain and suffering was undermined by cross-examination and that Davis’ doctor admitted that he could not say for certain if the injury was related to the accident or caused by some other event. Thus the Supreme Court found that the trial judge properly found that from the evidence presented, the jury could have believed that the plaintiff’s pain was not from the accident or that the plaintiff suffered no pain. Thus, the trial court acted properly in exercising its discretion by denying Davis’ motion for a new trial because there was a reasonable basis for the jury to believe: (1) that Davis did not suffer pain and/or (2) that his latest injury was not caused by the negligence of the defendant.

Here, in following the holding of Davis, the question before the court is whether there exists a reasonable basis to believe that the jury in the case at bar did not believe that the plaintiff suffered any of the damages submitted to the jury for consideration. If the finding of pain and suffering and other damages, or lack thereof, was simply a determination to be made by the jury as to the credibility of the plaintiff, then a new trial should not be awarded. However, in this case, because of the opinion of the defendant’s medical expert, the question of the plaintiff’s damages were not solely an issue of the plaintiff’s credibility.

At page 44 of the deposition of defendant’s medical expert, Dr. Nattrour, was specifically asked the following:

“Q. Was Doreen Pisciuneri injured in this automobile accident?
“A. She was, in my opinion.
“Q. She was injured?
“A. Correct.”

Further on in the deposition, at page 46, the following exchange occurred:

“Q. Injuries of this magnitude would be expected to resolve with or without treatment over a period of four to six weeks?
“A. A mild, at most, moderate soft tissue injury which [sic] predictably resolve 90 percent of the time over a period of four to six weeks.”

And further, at page 47, the following testimony from the doctor appears:

“A. Correct. Totally correct. Sir, my opinion, there is no treatment required. And that if she had merely existed, or lived, for four to six weeks, she would have been totally better at 90 percent of the time. And that’s supported by my experience. That’s supported by the world’s literature that I am familiar with.”

In the following question, continuing on at pages 47 and 48 of Dr. Nattrour’s deposition, the doctor confirmed that the other 10 percent of the people who suffered injuries of a nature suffered by the plaintiff are those people who have persistent pain and suffering beyond the 90 percent whose symptoms resolve within four to six weeks. Clearly, Dr. Nattrour is expressing his opinion with certainty that the plaintiff had at least a mild soft tissue injury, and it follows that a mild soft tissue injury to the neck region necessarily carries with it compensable damages.

Moreover, the doctor made it clear in his deposition that he did not enter into a judgmental setting as to whether he believed or did not believe the plaintiff, as at page 44 of the deposition, line 19, the doctor stated the following in response to a question as to whether or not he believed the plaintiff:

“(A) I think that we had decided it was 35 to probably 45, and I did not enter into a judgmental setting whether I believed or didn’t believe. I noted carefully, I think, documented her complaints, and unfortunately failed to corroborate or substantiate those by my physical examination, which is unusual.”

In view of the admitted injury to the plaintiff, there is no reasonable basis for a conclusion that the plaintiff suffered no pain or suffering, or other damages whatsoever. In order to have come to such a conclusion, the jury, in addition to totally disbelieving the plaintiff, would have had to totally disregard the medical opinion of the independent medical evaluation performed by the defendant’s physician and all the evidence as to the nature and circumstances of the accident, as well as all of the corroborating evidence given by other witnesses called by the plaintiff which corroborated the plaintiff’s complaints of pain. It is held that it is the duty of the trial court to set aside a verdict for inadequacy where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to loss suffered by the plaintiff. Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994), deciding Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959). Here, a verdict of zero damages, after a finding of liability, bears no reasonable relation to the loss which the defendant admits that plaintiff suffered and where the verdict cannot be reasoned or explained in connection with the evidence in the case, other than to say that the jury disregarded or rejected all of the evidence.

The defendant has argued that the plaintiff has waived her right to seek a new trial by failing to object prior to the dismissal of the jury, relying on Picca v. Kriner, 435 Pa. Super. 297, 645 A.2d 868 (1994). The court finds that the defendant’s reliance upon Picea is misplaced as the objection of the plaintiff in Picea was to the wording of the second interrogatory as plaintiff sought to argue that the wording of that interrogatory was overly broad and should have been reworded in such a manner as to focus on the injuries actually caused by the defendant. Here, the dispute is as to the weight of the evidence and not to whether or not the interrogatory was properly worded. This exact distinction was made by the Superior Court in Rozanc v. Urbany, supra, where the Superior Court held that waiver is not a bar to an award of a new trial in that case because the objection was not to the wording of the interrogatory, but rather questioning simply whether the jury’s verdict was so contrary to the evidence as to shock the conscience of the court.

Although the defendant was the verdict winner in this case, the defendant also filed motions for post-trial relief contending that the plaintiff’s evidence was insufficient for the jury to consider the plaintiff’s claim for future loss of earning capacity and requests judgment n.o. v. in favor of the defendant holding that the issue of earning capacity was not properly placed before the jurors. Plaintiff also complains by way of post-trial motion that the court erred in not granting a directed verdict in the issue of liability. Since the court is awarding a new trial, the court finds that it would not be proper to decide the issues of whether or not specific claims were properly submitted to the jury because the decision as to whether or not a claim of future loss of earning capacity or liability should be submitted to the jury must be made by the trial judge presiding over the new trial, and based upon the evidence submitted on such issues at the new trial. Since it would serve no purpose to address such issues, the court finds that it would be improper to do so. Accordingly, the court will enter an order of even date herewith which will grant the plaintiff’s post-verdict motion and award the plaintiff a new trial.

ORDER

And now, December 17, 2001, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the plaintiff’s post-verdict motion is granted and the plaintiff is awarded a new trial on the plaintiff’s complaint in civil action. The defendant’s post-verdict motions are denied.

This case shall be placed on the trial list for the trial term commencing January 14, 2002, and if not reached for the trial term for the month of January, shall remain on the trial list for each following month until tried.


author: WALSH, J.,

text:
    Sheehan v. Sheehan

      C.P. of Fulton County,
    no. 20 of 1999-C.

      Timothy W. Misner, for plaintiff.

      Anne S. Johnson and Thomas J. Trgovac, for defendant.
    December 19, 2001
   WALSH, J.,

PROCEDURAL HISTORY

In 1999, Donald C. Sheehan, plaintiff, brought an action against Lizabeth A. Sheehan, defendant, for the partition of marital real estate. The defendant filed an answer, and at the request of the parties the court convened a pretrial conference on September 28, 1999. The court then directed that the matter be referred to James M. Schall, Esq. as master. The appointed master conducted two days of hearings and then presented his report and proposed decree. Thereafter, both parties filed exceptions to the master’s report, and the instant case is now before this court for a disposition of the disputed exceptions.

FACTUAL HISTORY

The defendant and the plaintiff were married on June 15, 1974. Their marriage produced one child, Kathleen Sheehan, who was bom on June 26, 1979. In 1981 the parties separated and after that date never again lived together. In 1988, the parties were divorced by . a final judgment and decree in the Superior Court of Dougherty County, Georgia.

Prior to the divorce, in 1979, the defendant’s parents, William N. Wooldridge and Frances C. Wooldridge, transferred 15.6 acres to both the defendant and plaintiff. The transferred land is the real estate which is the subject of this partition action. At the time of the conveyance, the real estate was unimproved. The plaintiff and defendant, with the assistance of the defendant’s brother, Robert Wooldridge, began construction of a house on the property on or about April 30, 1979. At the time the parties separated, one wing of the residence was under roof and only partially completed, thus making the house uninhabitable. After 1981, the plaintiff made no financial contribution to the cost of construction of the house. Following the parties’ separation that year, the plaintiff, along with Robert Wooldridge and his construction crew, continued to build the residence on the property. After early 1982, plaintiff performed no substantial work on the construction of the residence. After plaintiff stopped performing work, construction came to a virtual stop, and the house continued to be uninhabitable. Later, at the request of the defendant, in 1984 construction began once again on the house. The funds for the continuing construction of the residence came from the defendant’s wages, the defendant’s retirement funds, loans from the defendant’s brother (Robert Wooldridge), and gifts from the defendant’s parents.

On July 3, 1986, the parties sought and obtained a $48,000 mortgage on the subject property. However, these funds were used neither to improve the subject property nor to continue construction on the home. Between 1993-2000, defendant paid homeowners’ insurance premiums for coverage on the subject property, while the plaintiff made no payments.

The subject property became habitable in late spring of 1985, yet the property was still only partially completed. The defendant and the parties’ minor daughter, Kathleen, have lived in the subject house from 1985 until the present. During this time, the defendant made extensive necessary expenditures toward construction and preservation of the house, including labor costs, mortgage payments, homeowner’s insurance premiums, real estate taxes, repairs and maintenance, and school and county taxes. The defendant’s improvements and necessary expenditures, between the 1988 divorce and the present, have caused the value of the property to increase by $150,000.

The December 9, 1988, divorce decree stated that the plaintiff was to pay $500 monthly mortgage payments instead of child support. The defendant initiated a child support action against the plaintiff when, after the mortgage was paid off in July 1996, the plaintiff ceased paying child support. The plaintiff contends that the mortgage payments were not a form of child support.

EXCEPTIONS

The plaintiff has filed the following exceptions to the master’s report:

(1) For various reasons, the master erred in his finding of facts nos. 7, 8, 10, 13, and 21. (Plaintiff identifies these as his first five exceptions.)

(2) The master erred in his recommendation regarding the disposition of the real estate.

(3)The master’s proposed decree nisi is improper because it gives the property to the defendant and violates the law and Rules of Civil Procedure.

In addition, the defendant filed the following exceptions to the master’s report:

(1) The master erred in deciding that the defendant’s claim for credits in her counterclaim was not a recoupment.

(2) The master incorrectly found that plaintiff’s $500 monthly payments to defendant, between December 1986 and July 1996, were mortgage payments rather than child support payments and that defendant was not entitled to a credit for one-half of the total mortgage payments.

(3) The master erred in sustaining plaintiff’s objection to defense exhibit 57.

(4) The master erred in sustaining plaintiff’s objection to defense exhibit 60.

(5) The master erred in denying defendant’s claim for a credit as an advancement from her mother’s estate.

DISCUSSION

In reviewing a master’s report, we note that the report is but a recommendation. It is the responsibility of the court to review the master’s report and determine whether the recommendations are appropriate. Tagnani v. Tagnani, 439 Pa. Super. 596, 654 A.2d 1136 (1995). The court has the authority to accept the master’s finding of facts so long as the facts are supported by the record. More specifically, since the master had the opportunity to observe the witnesses’ demeanor, great weight is given to the master’s assessment of witness credibility. See Brojack v. Brojack, 385 Pa. Super. 502, 504, 561 A.2d 788, 789 (1989).

Plaintiff’s Exceptions

The court will first consider the plaintiff’s exceptions to the master’s report, beginning with the contentions that several findings of facts are not supported by the evidence.

1. The Master’s Finding of Fact No. 7 Is Not Supported By the Evidence. To the Contrary, the Testimony of the Witnesses Indicated That Payments for the Construction Materials Were Made Through at Least September 1983.

The plaintiff contends that fact no. 7 is contrary to the evidence provided. While the plaintiff argues that he paid for a roof in 1983 by reference to a “comment in the checkbook” he did not provide physical evidence of this comment. In contrast, the defendant testified that she paid the plaintiff back in full. In addition, although the defendant admitted that it was possible that the plaintiff paid supplier and contractors directly for work on the subject house during 1981 to 1988, the plaintiff did not produce any evidence to support his statements of financial contribution at the hearing. Since no physical evidence was introduced to support the claim or defense and the master had the opportunity to assess the witnesses’ demeanor, it is proper to defer to the master on witness credibility.

Accordingly, plaintiff’s exception to fact no. 7 is overruled.

2. The Master’s Finding of Fact No. 8 Is Not Supported By the Evidence. To the Contrary, the Plaintiff Performed Work Until 1985.

Next, the plaintiff claims that fact no. 8 lacks support in the record. The plaintiff has directed the court’s attention to the transcripts, arguing that the defendant admits the plaintiff was at the house between 1981-1988. In fact, the transcripts show that the defendant never, in fact, stated that the plaintiff was actually “at the house” until 1988. Also, the defendant has made cogent arguments that though the plaintiff did perform and supervise work on the house between 1979 and 1982, he did not perform “substantial” work on the house. The master had the opportunity to hear all of the evidence, to gauge and consider the testimony as a whole and to assess the credibility of the witnesses. Moreover, even the plaintiff has directed us to no evidence that the plaintiff’s involvement in the continuing construction of the parties’ home was anything more than incidental after about 1983. Once again, given the equivocal evidence and the need to rely largely on the credibility of the witnesses providing it, the court will defer to the master on the credibility issue.

Therefore, plaintiff’s exception to fact no. 8 is overruled.

3. The Master’s Finding of Fact No. 10 Is Incomplete. Funds for the Construction Were Also Secured By Plaintiff Obtaining a Home Improvement Loan From the Navy Federal Credit Union.

In finding of fact no. 10, the plaintiff states that the master failed to consider the testimony provided by both parties, that the plaintiff obtained funds from the Navy Federal Credit Union. It is not disputed that the plaintiff did obtain a loan from the Navy Federal Credit Union. The dispute concerns the use of the loan proceeds. The court finds that the testimony concerning the use of the money from the loan is equivocal at best. When asked if the plaintiff’s money was used to buy supplies and materials to build the house, the defendant responded, “I’m sure he would say that.” The statement made by the defendant is too ambiguous and can- not be construed as an admission concerning the use of the money. Since there is contradiction in the testimony, and because the master had the opportunity to observe the witness, it is the master who is the best judge of credibility. See Brojack v. Brojack, 385 Pa. Super. 502, 504, 561 A.2d 788, 789 (1989).

Therefore, the court should “give weight to the determination of credibility by the master who saw the parties, heard their testimony and observed their individual demeanor.” Herwig v. Herwig, 279 Pa. Super 65, 70, 420 A.2d 746, 748 (1980). Given all of this, there is sufficient basis for the master’s finding of fact no. 10.

The plaintiff’s exception is overruled.

4. The Master’s Finding of Fact No. 13 Is Misleading in That Part of the Funds From the Mortgage Was Used To Repay the Home Improvement Loan Plaintiff Had With the Navy Federal Credit Union.

Both the plaintiff and defendant allow for very little argument concerning this exception. It appears as though this exception is merely an extension of the exception discussed above in “finding of fact no. 10.” As the record reflects, the money obtained from Home Federal Savings and Loan mortgage was used to pay off a personal loan taken by the plaintiff from the Navy Federal Credit Union and to repay a loan from the defendant’s mother. Since the master found that funding for the continued construction of the house came from the defendant’s funds, combined with the testimony that the money from the mortgage went to repay personal loans, the master was correct in the finding of fact no. 13. The court finds that the money from the mortgage was not used to improve the subject property.

As a result, the plaintiff’s exception is overruled.

5. The Master’s Finding of Fact No. 21 Cannot Support the Master’s Recommendations Because the Statements Were Made During the Parties’ Divorce Process and Were Offers of Compromise Which Were Never Accepted.

The plaintiff’s counsel contends that the oral and written statement which plaintiff made to the defendant (i.e., that she could remain in the house for as long as she wanted) is part of a settlement agreement. Counsel then argues that since no agreement was ever reached, the previous statements are inadmissable under Pa.R.E. 408. Defense counsel claims, on the other hand, that the plaintiff’s later written statement of reassurance (defense exhibit 56) was not a part of the settlement, but was in fact a reiteration of prior assurances plaintiff had made to defendant and was contained as a separate document in a particular mailing. The defendant’s counsel advances a compelling argument in pointing out that the plaintiff had no real interest in a property settlement at the time of divorce because of his statement that “I wanted my daughter to grow up in the best environment that I could provide for her.” The plaintiff did not seek a property settlement until eight years after the divorce by which time (1) the defendant had made substantial financial contributions to the subject property; (2) the mortgage was paid off; (3) the value of the property had increased by $150,000; and (4) the parties’ minor daughter had been living with her mother and attending the local high school for several years. The defense has convincingly argued, and the master very well could have taken into consideration, the major contributions the defendant put into the house before the plaintiff suddenly decided to take an active interest in the property.

This exception of the plaintiff is overruled. Beyond the finding of facts, the plaintiff excepts to the following:

6. Disposition of Real Estate

The plaintiff argues that the master did not have the equitable power to dispose of the property other than through a private sale. According to the plaintiff, Pa.R.C.P. 1563 requires that if property is not capable of division, then the property should be offered to the parties through a private sale. In addition, the plaintiff’s counsel correctly asserts that the master inappropriately relied on the doctrine of equitable estoppel. Since the estoppel theory was not pled as a new matter, Pa.R.C.P. 1030, and affirmatively asserted in the answer, plaintiff claims that the estoppel theory was waived by the defendant. Pa.R.C.P. 1032.

Yet the theory of equitable estoppel is not a necessary element in the present case. Pursuant to Pa.R.C.P. 1551, “The procedure in an action for the partition of real estate shall be in accordance with the rules relating to the action in equity.” The court agrees that a court of equity has the power to afford relief despite the existence of a legal remedy when, from the nature and complications of a given case, justice can best be reached by means of equity’s flexible machinery. Schrader v. Heath, 408 Pa. 79, 83, 182 A.2d 696, 698 (1962). The master correctly relied on his equitable powers in allowing the defendant to retain possession of the subject residence and not expose the property to a private sale. As noted by the court in Zeigler v. Zeigler, 22 D.&C.3d 225,228 (1982), a court should “look to the record and the master’s discussion to determine if his recommendation was based upon fair and equitable principles.”

This is an equity action, and therefore the equity jurisdiction continues until all the matters have been resolved. McGovern v. Spear, 463 Pa. 269, 272-73, 344 A.2d 826, 828 (1975); Arcadia Theatre Co. v. Sablosky, 418 Pa. 34, 49, 209 A.2d 375, 382 (1964). Since this court has such equitable powers, we also rely on the equitable principle that “although a chancellor’s powers are controlled by law in Pennsylvania, a chancellor still possesses the broad and flexible ability to grant remedial relief where justice and good conscience so require.” 14 Standard Pa. 2d §79:1 (1996).

Strict application of Pa.R.C.P. 1563 in this case is manifestly unjust because the plaintiff and defendant are not equal with regard to the money and the time invested in the subject property. The defendant repeatedly relied on the plaintiff’s statements that the property would be hers, and as a result, invested large sums of money and much of her time in the building, financing, insuring, maintaining, repairing and improving of the subject property. In the instant case, the real estate itself was a gift from the defendant’s mother; the defendant expended extensive financial resources towards constructing and preserving the house; the plaintiff told the defendant that she could remain in the house as long as she desired; the plaintiff contributed little in the way of financial resources, in comparison to the defendant, and did no substantial work to improve the subject house after 1982; and the defendant has occupied the house to the exclusion of the plaintiff since 1986.

Had the master found that the parties were bound by Pa.R.C.P. 1563 which requires a private sale, the plaintiff would stand to derive some six figures of “equity” at the expense of the defendant from a property in which he acquired a joint interest more than 20 years earlier and which had been improved from a field to a beautiful home, though his contributions into that “improvement” absolutely paled in comparison to the efforts of the defendant. Beyond some minimal, early contributions of finance and manpower, the plaintiff’s only legitimate claim to the subject property was his legal claim — that his name is on the deed. The equitable claim to the property, however, lay almost entirely with the defendant, particularly in view of plaintiff’s continuing assurances to the defendant for a decade and a half that “the property would be hers.” Requiring a private sale, as the rules suggest, would have the defendant paying dearly for the right to hang onto this greatly improved property in which she — and for the most part, she alone — has invested her blood, sweat and tears for more than two decades; and it would result in a financial windfall to the plaintiff. It is beyond question that the legal remedy, under these facts, is not adequate; neither could a court of equity countenance such an unfair outcome.

Following the Pennsylvania Supreme Court’s opinion, a court with equity jurisdiction shall “afford relief if the statutory or legal remedy is inadequate, or if equitable relief is necessary to prevent irreparable harm. ” Martino v. Transport Workers’ Union of Philadelphia. Local 234, 505 Pa. 391, 396, 480 A.2d 242, 244-45 (1984). (emphasis added) Because the court finds that the master correctly balanced the rules governing equity actions— which would have dictated a far more harsh result— against equity principles given the factual backdrop of this case, the plaintiff’s exception is overruled.

7. The Master’s Proposed Decree Nisi Is Improper in That it Awards the Property to Defendant in Violation of Law and the Rules of Civil Procedure As More Fully Set Forth in Exception 6 Which Is Incorporated Herein By Reference.

After reviewing plaintiff’s last exception concerning the master’s proposed decree nisi, it appears that this is not a separate exception to the above “disposition of property.” The court sufficiently addressed this exception in item 6 above.

Defendant’s Exceptions

The court next considers the defendant’s exceptions to the master’s report.

1. The Master Erred in Finding That Defendant’s Comprehensive Claim for Credits Identified In Her Counterclaim Was Not a Recoupment.

Recoupment is a common-law remedy where a defendant can reduce the amount of the plaintiff’s award if the defendant has a counterclaim that arises out of the same litigation commenced by the plaintiff. Stulz v. Boswell, 307 Pa. Super. 515, 453 A.2d 1006 (1982). If a counterclaim is in fact a recoupment, the statute of limitations will not bar the defendant’s claim. Household Consumer Discount Co. v. Vespaziani, 490 Pa. 209, 415 A.2d 689 (1980). Plaintiff contends that recoupment normally presents itself only in contract cases. Yet, no cases identified by the plaintiff limit recoupment to contract cases or even mention the fact that recoupment is normally associated with contract cases. See for example, Household Consumer Discount Co. v. Vespaziani, supra and Stulz v. Boswell, supra. Neither have we found any such authority.

The plaintiff argues that the defendant in this case is asserting an affirmative defense and therefore is advancing a setoff, rather than a claim for recoupment. Yet, in the instant case, the defendant seeks only to recover her losses for necessary expenditures on the property which is the subject of this partition action commenced by the plaintiff. In addition, though both the master and the plaintiff quote Bednar v. Bednar, 455 Pa. Super. 487, 688 A.2d 1200 (1997), as applying to the case at issue, in Bednar the counterclaim is a setoff. The counterclaim is characterized as a setoff rather than a recoupment because the appellants’ counterclaims sought affirmative relief in the form of a money judgment against the ap-pellee. Id. That is not the case here.

The plaintiff argues that in order to credit the defendant for taxes paid, the tax contribution has to be compulsory. Lohr’s Estate, 132 Pa. Super. 125, 200 A. 135 (1938). The plaintiff further argues that the defendant, as a tenant in common, was under no obligation to pay the plaintiff’s share of the taxes. Plaintiff’s arguments in this regard are entirely unpersuasive. In the present case, the defendant is in possession of the house. In fact, it is her home and her “castle.” The defendant did not pay taxes as a volunteer, but to avoid a tax sale of her home. The court agrees with the defendant that to disallow re-coupment through credits would ignore the defendant’s extensive financial contributions to the subject property.

Therefore, the following items are considered valid claims under the recoupment theory: (a) credit for all costs of building, maintenance and upkeep from the date of separation in 1981 through the present; (b) credit for any and all school and county taxes paid upon the subject real estate by the defendant from 1981 through the present; (c) credit for all principal and interest payments she has made on the mortgage encumbering the subject real estate; (d) credit for labor performed by the defendant and her brother for construction and improvements to the dwelling located on the subject real estate; and (e) credit of $23,500 for the advancement against her inheritance for the original transfer of the land.

Therefore, the defendant’s exception is sustained.

2. The Master Erred in Finding That Plaintiff’s $500 Monthly Payments To Defendant, Between December 1986 and July 1996, Were Mortgage Payments Rather

Than Child Support Payments and That Defendant Was Not Entitled To a Credit for One-Half of the Total Mortgage Payments. In Denying Defendant’s Claim for Credit, the Master Entered a Finding That Is Contrary To the Law and the Agreement That Existed Between the Parties.

The defendant disagrees with the master’s finding that between 1986 and 1996, plaintiff’s monthly payments to the defendant were mortgage payments rather than child support payments and that defendant was not entitled to a credit for half of the total mortgage payments.

The law in Georgia is well settled that neither a parent nor a court can waive a parent’s obligation to pay child support in a divorce decree or any other way. Department of Human Resources v. Hedgepath, 420 S.E.2d 638 (Ga. Ct. App. 1992). The parties obtained their divorce in Georgia, and without any evidence to the contrary, this court affords full faith and credit that the Georgia court followed Georgia law in entering a valid divorce decree with a provision that would allow the minor child to obtain support. Pennsylvania’s Domestic Relations Law governing a parent’s child support obligation is similar to that in the Georgia Domestic Relations Code. Pursuant to 23 Pa.C.S. §4321(2), neither the non-custodial parent nor the custodial parent can be excused from supporting their children. See also, Mackalica v. Mackalica, 716 A.2d 653, 656 (Pa. Super. 1998). It appears that both the courts in Georgia and Pennsylvania are obligated to ensure that parents do not waive a child’s right to support from the non-custodial parent.

The plaintiff contends that even though the provision which “waived” the child support in the Georgia divorce decree is void, it does not automatically make the mortgage payments child support payments. If these were the only facts, the court would agree; but there are other factors to be considered. First, between 1981-1986 the plaintiff voluntarily paid monthly child support in amounts varying between $250 and $500. Also, the court notes the tax advantage that the plaintiff gets in claiming mortgage interest payments as deductions in his tax returns in contrast to no deductions for child support. Further, it is apparent that the plaintiff understood that the mortgage payments were made as a substitution for child support because of the plaintiff’s December 14,1988, handwritten letter to the defendant stating, “You agreed since you were getting to claim Kathleen as a dependant you had no objection to my paying $500 on the mortgage in lieu of the child support.” (Defense exhibit 57). Finally, the divorce decree itself strongly suggests that it was prepared by a lawyer rather than the Georgia court, permitting the inference that the drafter of the plaintiff’s Georgia divorce decree was the plaintiff’s attorney. It is apparent to the court that the plaintiff knew that the payments were for child support. Under the circumstances, the decree was crafted to allow the plaintiff to obtain a tax advantage while paying child support.

For the above reasons, the defendant’s exception is sustained.

3. The Master Erred in Sustaining Plaintiff’s Objection to Defense Exhibit 57.

The defendant argues that the master erred in sustaining plaintiff’s objection to defense exhibit 57 on the grounds that the post-divorce note was a settlement offer. See Pa.R.E. 408. In addition, evidence offered for a specific purpose, objectionable for other reasons, is admissible for the purpose for which it was offered. Pa.R.E. 105. Plaintiff incorrectly asserts that the only purpose for the admission of exhibit 57 was to collaterally attack the Georgia divorce decree. This is simply not true. The court agrees with the defendant that the evidence was submitted to the master for the purpose of demonstrating that the plaintiff knew the purpose of the monthly $500 payment. As a result, nothing in the Rules of Evidence proscribes the admissibility of defense exhibit 57; and it properly should have been admitted for the purpose for which it was offered.

The defendant’s exception is sustained.

4. The Master Erred in Sustaining Plaintiff’s Objection To Defense Exhibit 60.

The defendant argues that the defense exhibit 60 was neither a settlement offer nor a collateral attack on the divorce decree. The court agrees with the defendant that exhibit 60 was not offered into evidence to collaterally attack the Georgia divorce decree. Instead, the letter’s purpose was to demonstrate the plaintiff paid the mortgage in lieu of child support. Also, while the plaintiff argues that exhibit 60 was aimed at resolving the property matter and child support issue, there is neither mention of negotiating nor an offer to compromise in the letter. See Pa.R.E. 408, supra at footnote 16. The letter merely suggests that the parties simply hold in abeyance for 60 days any and all legal action so negotiations could commence. Moreover, even if this letter were a settlement offer, the rule does not require exclusion of evidence if it is offered for a purpose other than showing offers to compromise. Pa.R.E. 408. Here, the letter is tantamount to an admission that “past child support was paid in the form of mortgage payments.” Therefore, the defendant’s exception is sustained.

5. The Master Erred In Denying Defendant’s Claim for a Credit in the Form of An Advancement From Her Mother’s Estate.

One obtains an advancement when a gift is made to a future beneficiary prior to the benefactor’s death, and the gift is in lieu of a share of the estate. Morris Estate, 356 Pa. 497, 52 A.2d 172 (1947). In the present case, the defendant’s mother signed two documents on January 16, 1979. First, the defendant’s mother, as grantor, conveyed the subject property over to the plaintiff and defendant by the delivery of a deed and in consideration of $1. Second, the defendant’s mother, as testator, executed a codicil to her will, in which she stated that the property was intended to be a lifetime gift whose value would later be treated as advancement at the time of Frances Wooldridge’s death. Later on, the codicil was incorporated into a trust, the provisions of which triggered at Frances Wooldridge’s death in 1999.

As in any case, the court must look to the intention of the defendant’s mother at the time the instruments were executed. It is probative of the testator’s intention that Mrs. Wooldridge executed the codicil to her will and the deed of conveyance on the very same day. The plaintiff argues that the plain meaning of the words should control, because the deed was transferred to both the plaintiff and defendant in consideration of $1 and contains no restrictions or conditions. Teacher v. Kijurina, 365 Pa. 480, 76 A.2d 197 (1950). Yet, it is very clear through the legal actions taken the same day as the deed, that Mrs. Wooldridge intended the transfer of land would be an advancement.

For the reasons stated above, the defendant’s exception is sustained.

ORDER

December 19, 2001, after hearing arguments and considering the exhibits, the master’s report, the parties’ briefs and the law, it is hereby ordered that:

(1) The plaintiff’s five exceptions to the master’s finding of facts 7, 8, 10, 13, and 21 are overruled. These findings of facts are supported by evidence, and are confirmed.

(2) Plaintiff’s exceptions 6 and 7 are overruled. The master had the equitable power to balance the equities, to conclude that the legal remedy was inadequate and to permit the property to be disposed of other than through a private sale; and the master’s finding in this regard is approved.

(3) The defendant’s exception 1 is sustained, and the defendant’s claims for recoupment are approved such that the defendant may recoup the following as credits in her counterclaim:

(a) all costs of building, maintenance and upkeep from the date of separation in 1981 through the present;

(b) any and all school and county taxes paid upon the subject real estate by the defendant from 1981 through the present dates; and

(c) all principal and interest payments made on the mortgage on the subject of real estate; and

(d) the cost and/or value of labor performed by the defendant and her brother for construction and improvements to the dwelling located on the subject real estate.

(4) Defendant’s exception 2 is sustained. The master erred in finding that plaintiff’s $500 monthly payments to defendant, between December 1986 and July 1996, were mortgage payments rather than child support payments; and the master’s finding in this regard is reversed. Properly admitted evidence establishes that the payments were for child support; and the defendant should have been credited for one-half of the total mortgage payments.

(5) The master erred in sustaining plaintiff’s objections to the admissibility of defense exhibits 57 and 60 and the master’s evidentiary rulings are reversed such that defense exhibits 57 and 60 are admitted. Therefore, defendant’s exceptions 3 and 4 are sustained.

(6) As to defendant’s exception 5, it is sustained. The master erred in denying the defendant’s claim for a credit as an advancement from her mother’s estate, and the master’s determination is reversed. Defendant shall be given a credit of $23,500 arising out of the 1979 advancement from her parents.

It is further hereby ordered that the matter shall be returned to the master for the purpose of preparing a proposed decree nisi in conformity with the foregoing opinion and this order; and to hold whatever further eviden-tiary proceedings are necessary, consistent with the foregoing opinion and order.

      . The master found that “after the parties separated in 1981 plaintiff made no financial contribution to the cost of construction of the residence.”

      . The plaintiff stated, “I have a comment here in my checkbook I paid for that roof in September of 1983.” (N.T. 61 — day 2.)

      . When asked about the above testimony by the plaintiff, the defendant responded, “I paid him back and I have a receipt signed that it was paid in full.” (N.T. 70 — day 2.)

      . When asked if the defendant knew if the plaintiff paid the contractors, the defendant responded, “Since he was there doing that [work] he very well could have. But once again, I’d like to see them [receipts] which I am sure you have.” (N.T. 109 — day 1.)

      . The master found that, “After early 1982, plaintiff performed no substantial work on the construction of the residence.”

      . When asked “But there are photos of him doing work on this house periodically to that time period?” The defendant responded, “Periodically.” (N.T. 109 — day 1.)

      . After being asked if the plaintiff helped put shale in the driveway, in June 1985, the plaintiff responded “I made sure it was spread properly.”(N.T. — day 2.)

      . The master found that, “The funds for the continuing construction of the residence came from defendant’s wages, from withdrawal of her retirement funds from the Washington County Board of Education, from loans from her brother, Robert Wooldridge, and gifts from defendant’s parents.”

      . During the defendant’s cross-examination, the following testimony occurred:
      “Q: Didn’t he also use the money from the Navy Federal Credit Union to buy supplies and materials to build the house?

        “A: Prior to permanent separation.
      “Q: Yes, that’s what I’m asking.
      “A: I’m sure he would say that.” (N.T. 101 — day 1.)
      Then, during the plaintiff’s direct examination, the plaintiff’s attorney asked:
      “Q: Now, there was talk about a Navy Credit Union payment made from a mortgage that you had at Home Federal. Do you recall that testimony? There was a check introduced, a payment to Navy Federal Credit Union?
      “A: Yes.” (N.T. 63 — day 2.)

      . See defendant’s cross examination from footnote 9.

      . The master found that “None of the funds received from the mortgage were used to improve the subject property.”

      . On day 1, the direct examination of the defendant by her counsel shows the following:
      “Q: I’m showing you defense exhibit no. 10. Is that a canceled check made payable to the Navy Federal Credit Union?
      “A: Yes, it is my canceled check out of my account made to Navy Federal Credit Union.
      “Q: In the amount of what?
      “A: $26,633.63.
      “Q: To your knowledge what was that payment for?
      “A: That was to pay back a loan that Don had gotten from Navy Federal Credit Union.
      “Q: Was that a joint loan?
      “A: No ma’am.
      “Q: Was it a personal loan, a personal loan of Mr. Sheehan’s?
      “A: It was from his bank.
      “Q: Had you signed the note for that loan?
      “A: Not that I recall, no.
      “Q: I’m showing you defense exhibit no. 11, another canceled check. Who is that payable to?
      “A: This is made payable to my mother, Frances C. Wooldridge in the amount of $21, 853.29.” (N.T. 50 — day 1.)

      . The master found that “plaintiff told defendant verbally (day 1, Tr. p. 46, ll.12-24) and in writing (defendant’s exhibit no. 56) that she ‘can remain there as long as you want.’ ”

      . N.T. 65 — day 2.

      . The plaintiff’s exception no. 6 is set forth in full in this note. The master’s recommendation regarding the disposition of the real estate is improper for the following reasons:
      “(A) Since the master found that the plaintiff was entitled to one-half of the real estate, defendant has no right to object to a private sale. Pa.R.C.P. 1563.
      “(B) The disposition of the real estate recommended by the master is not allowed under the Rules of Civil Procedure or by law.
      “(C) The master erred in not ordering a private sale of the real estate pursuant to Pa.R.C.P. 1563.

        “(D) The master erred by not giving plaintiff an opportunity to take the real estate.
      “(E) The master erred in not treating the parties equally.
      “(F) The master erred in considering estoppel because:
      “(i) Such defense was not pled as new matter by the defendant.
      “(ii) The written and oral statements relied on by the master regarding the real estate were made as offers of compromise in the context of an overall marital property settlement between the parties which was never accepted by the defendant.
      “(iii) Defendant was aware of the legal ramifications of the divorce and its effect on her rights in respect to the real estate (N.T. 106 and 107, day 1); and
      “(iv) The doctrine cannot be predicated on errors of judgment by the person seeking its benefit.”

      . Defense exhibit 57 was a letter concerning the purpose of the $500 monthly payments written by the plaintiff’s attorney at the time, which had a hand written note on it from the plaintiff.

      . Rule 408. Compromise and Offers to Compromise.

      “Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”

      . Rule 105. Limited Admissibility.

      “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall, or on its own initiative may, restrict the evidence to its proper scope and instruct the jury accordingly.”

      . Defense exhibit 60 is a letter dated February 11, 1997, from plaintiff’s former attorney to previous counsel for the defendant.

      . The deed dated January 16, 1979, states, “that in consideration of $1 and other good and valuable consideration in hand paid, the receipt whereof is hereby acknowledged, the said grantors [William and Frances Wooldridge] do hereby grant and convey to the said grantees [Donald and Lizabeth Sheehan], All that certain tract or parcel of real estate.” Plaintiff’s exhibit 2.

      . The relevant part of Frances C. Wooldridge’s codicil states:
      “I have on January 16, 1979, made a lifetime gift to my daughter, Lizabeth A. Sheehan, of a portion of my real estate being 15.60 acres, and it is my direction that in the administration of my estate this gift be treated by my executor as an advancement so that the residual share passing to my daughter, the said Lizabeth A. Sheehan, shall be decreased by the value attributable to the real estate as of this date, to wit: $23,500.” Defendant’s exhibit 1.

      . The trust agreement executed on October 3, 1986, between Frances Wooldridge and The Old National Bank of Martinsburg, establishes:
      “The settlor acknowledges that she has on January 16, 1979, made a lifetime gift to Lizabeth A. Sheehan of a portion of real estate, being 15.60 acres, and it is the direction of the settlor that in the distribution from this trust that this gift be treated by the trustee as an advancement to Lizabeth A. Sheehan such that her residual share shall be decreased by the value attributable to the real estate as of the date of gift, to wit: $23,500.” Defendant’s exhibit 55.