author: KUNSELMAN, S.J.,

text:
    Moye v. Noss

      Charles F. Bowers Jr., for plaintiffs.

      Kathleen A. Segmiller, for defendant.
    April 16, 2008
   KUNSELMAN, S.J.,

Pursuant to Pa.R.A.P. 1925(a), the court files this opinion in support of its order denying defendant Michael George Noss’ motion for post-trial relief. A brief factual and procedural history of this case is as follows.

On August 2, 2004, plaintiffs Christine and Michael Moye filed a complaint alleging that the defendant was negligent in the operation of his motor vehicle, resulting in injuries to plaintiff wife. Plaintiff husband alleged damages for loss of consortium and for the payment of medical expenses for his wife. Prior to trial, the defendant stipulated to liability. A jury trial on the matter commenced on September 24, 2007, and the jury rendered a verdict on September 25, 2007 in favor of plaintiff wife in the amount of $65,000 and plaintiff husband in the amount of $5,000. At trial, the evidence revealed that on October 16, 2002, at approximately 6 p.m., plaintiff wife was driving her Lincoln Navigator on the main street in Freedom, Beaver County, Pennsylvania. (N.T. at 28-29.) She applied her turn signal and came to a stop in order to make a left-hand turn from the main street. (N.T. at 29.) While plaintiff wife was stopped due to traffic awaiting the opportunity to make a left-hand turn, the defendant rear-ended the back of her vehicle. (N.T. at 29.)

On the date of the accident, plaintiff wife was seven months pregnant. (N.T. at 28.) She was taken to the hospital, where she complained of neck and low back pain. (N.T. at 34.) She was discharged, and went to see her family doctor, Dr. Tatum, the next day. (N.T. at 35.) Plaintiff wife further testified that she began a physical therapy regime on October 18,2002. (N.T. at 35.) At the time of the accident, plaintiffs were joint owners of a daycare center. (N.T. at 23, 99.) Plaintiff wife served as the daycare’s program director. She stated that after the accident she attempted to go back to work in her position as program director, but because of her pain it was difficult for her to perform the duties required. (N.T. at 36-37.) She further stated that she could not put in the required 30 hours per week. (N.T. at 37-38.) Plaintiff wife testified that she tried to go back to work after the accident for approximately four weeks. (N.T. at 37.) She stated that because she could not perform all of the necessary duties, she was required to promote Kara Cochran to the position of program director and to hire Kelly Harris to perform clerical duties. (N.T. at 38, 39.) She further testified that she was completely off from November of 2002 until about March of 2003. (N.T. at 41.) After she gave birth to her daughter on December 30, 2002, plaintiff wife went back to physical therapy for treatment, from March until May of 2003. (N.T. at 42-43.) She stated that she then began treatment at Sheffield Chiropractic. (N.T. at 45.) She further testified that in March of 2003, she attempted to go back to work for about 15 hours per week, and then attempted to increase her working hours to 30 hours per week in April or May of 2003. (N.T. at 46-47.) After the birth of her third child, plaintiff wife began treating with Dr. Sisk, a chiropractor, from May 7,2004 until August of 2005. (N.T. at 71,73.) Plaintiffs also presented the testimony of Dr. Michael Cozza, who diagnosed plaintiff wife as suffering from “cervical, thoracic and lumbosacral strain and sprain along with low grade back pain.” (Cozza deposition at 11.)

Prior to trial, the defendant retained the services of certified public accountant Lawrence P. McGrail for the purpose of reviewing the financial statements of plaintiffs’ daycare business. The defendant asserted that McGrail would testify that Ms. Cochran’s pay amounts remained the same prior to and after the date of the accident. Further, the defendant proposed that McGrail would testify that the additional expenses for the employees of plaintiffs’ daycare were due to the continuing growth of the business. Plaintiffs then filed a motion in limine to preclude McGrail’s testimony, arguing that the profits and losses of plaintiffs’ business were irrelevant, and asserting that the proper method of calculating income loss in this matter was the cost of paying for replacement services. We granted plaintiffs’ motion in limine on September 24,2007, thus precluding McGrail’s testimony. (N.T. at 7-8.)

After the jury reached a verdict in favor of plaintiffs, the defendant filed a timely motion for post-trial relief. In his motion, the defendant first asserted that this court abused its discretion and committed an error of law when it granted plaintiffs’ motion in limine. Specifically, the defendant contended that the proposed testimony of defense expert McGrail was relevant to show that the increased wages paid to the daycare center’s employees were not causally related to the motor vehicle accident in question, but instead were the result of the growth in plaintiffs’ business. Further, the defendant asserted that McGrail’s testimony was both relevant and necessary to rebut plaintiff husband’s testimony that he took a leave of absence from his job at the post office after the accident for the purpose of helping out at the daycare center. The defendant proposed that McGrail would testify that plaintiff husband was engaged in the operation of the daycare center prior to the accident. Additionally, the defendant argued that the trial court improperly admitted into evidence an exhibit detailing payroll records for daycare employee Kara Cochran and another exhibit setting forth a calculation of income loss claimed by plaintiff wife.

Next, the defendant contended that this court erred in permitting testimony from plaintiffs regarding plaintiff wife’s income loss and inability to work. Specifically, the defendant argued that plaintiffs did not offer any testimony or evidence by a physician or chiropractor demonstrating that plaintiff wife was disabled, unable to work, or restricted as a result of the accident. Thus, the defendant argued that this court abused its discretion in allowing testimony concerning plaintiff wife’s income loss due to her inability to work.

Finally, the defendant asserted that the court improperly accepted plaintiffs’ supplemental point for charge regarding plaintiff wife’s pre-existing condition or injury. The defendant contended that the basis for the charge was plaintiff wife’s pregnancy at the time of her accident, followed by her later pregnancy. The defendant asserted that plaintiffs offered no medical evidence to support the allegation that plaintiff wife’s pregnancies affected her cervical or lumbar strain. Moreover, the defendant argues that plaintiff wife’s later pregnancy in the spring of 2003 should not have been considered to be a prior physical condition. As such, the defendant asserted that the trial court erred when it charged the juiy that plaintiff wife’s pregnancy was a pre-existing condition that affected her injuries and/or her recovery.

We denied the defendant’s motion on February 27, 2008. Judgment was then entered on the verdict as molded to add delay damages in favor of plaintiff wife in the amount of $75,309.18, and in favor of plaintiff husband in the amount of $5,000, and against the defendant. This timely appeal followed. On appeal, the defendant sets forth the following questions for review:

“(1) Whether the trial court erred when it granted plaintiffs’ motion to exclude the business testimony of plaintiffs’ economic expert and subsequently excluded all testimony from the defendant’s economic expert?
“(2) Whether the trial court erred when it permitted the jury to consider plaintiff wife’s alleged inability to work and subsequent wage loss when plaintiffs failed to produce any medical testimony causally relating plaintiff wife’s alleged restrictions to the October 16,2002 automobile accident?
“(3) Whether the trial court erred when it charged the jury on an alleged pre-exisitng condition increasing the severity of plaintiff wife’s injuries based on her two pregnancies?

We shall address these issues seriatim. First, we address the defendant’s contention that the court erred in excluding the testimony of the defendant’s business expert. Initially, we note that:

“the grant of a new trial is a matter within the discretion of the trial court. Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 3 (1994). ‘An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will.’ Pilon v. Bally Engineering Structures, 435 Pa. Super. 227, 645 A.2d 282, 285 (1994), appeal denied, 539 Pa. 680, 652 A.2d 1325 (1994), rejected on other grounds in Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998).” Majczykv. Oesch, 789 A.2d 717, 720 (Pa. Super. 2001).

Additionally,

“ ‘[t]he admission or exclusion of evidence, including the admission of testimony from an expert witness, is within the sound discretion of the trial court.’ Turney Media Fuel Inc. v. Toll Bros. Inc., 725 A.2d 836, 839 (Pa. Super. 1999). (citation omitted) ‘Thus our standard of review is very narrow; we may only reverse upon a showing that the trial court clearly abused its discretion or committed an error of law.’ Id. (citation omitted) ‘To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party. ’ Id. (citation omitted)” Id. at 727.

In this case, the defendant proposed that the testimony of expert witness Lawrence P. McGrail would reveal that:

“(1) The increase in overall wages after the accident was a necessary increase in expense to support the continued growth of the daycare. There was a direct correlation between increased revenue and increased wages.
“(2) Michael Moye’s absence from his employment at the post office was most likely due to a combination of assisting Christine Moye following the birth of their child in December 2002 and his activities associated with the physical expansion of the daycare center.” Report by Lawrence R McGrail, pp. 1-2.

In preparing the report, McGrail reviewed the daycare center’s tax returns, the individual tax returns of the plaintiffs, the checking account information and payroll data of the business, the depositions of the plaintiffs, and other data. Id. at 1. Specifically, McGrail noted in his report that the additional expenses incurred by the daycare were due to the growth in revenue and number of children who utilized the daycare, and not because of additional employee expenses incurred by plaintiffs after plaintiff wife was injured. Id. at 2. Further, McGrail points out in his report that “[gjross wages paid as a percentage of gross receipts had remained constant for all years of operation (2002 through 2004) and averaged 52 percent of gross receipts.” Id. at 4. Accordingly, McGrail concluded that plaintiff wife did not incur an economic loss due to the October 16, 2002 accident.

Plaintiffs asserted that McGrail’s proposed testimony was irrelevant to plaintiff wife’s claim and was thus inadmissible. We agreed, and therefore granted plaintiffs’ motion in limine to exclude such testimony. In Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (1960), the Pennsylvania Supreme Court discussed the probative value of testimony regarding the plaintiff’s loss of earnings, noting:

“[o]rdinarily, earnings which represent the result of combined capital and personal services is not capable of establishing the earning power of the servitor. Where, however, the business is small and the income which it produces is principally due to the personal services and attention of the owner, the earnings of the business may afford a reliable criterion of the owner’s earning power. As recognized in Offensend v. Atlantic Refining Company, 322 Pa. 399, 404-405, 185 A. 745, 747, ‘The general rule is that profits derived from a business are not to be considered as earnings and cannot be admitted as a measure of loss of earning power, but where they are almost entirely the direct result of personal management and endeavor, they are an accurate measure of earning capacity and admissible as such: Dempsey v. City of Scranton, 264 Pa. 495, 107 A.2d 877, and authorities cited therein; Pietro v. Philadelphia R.T. Co., 298 Pa. 423, 148 A. 520.’ ” Bell, 399 Pa. at 339, 160 A.2d at 441-42.

In that case, the plaintiff and his wife owned a small pet and sport supply store in Philadelphia. The Pennsylvania Supreme Court noted:

“[t]he plaintiff, himself, was an avid sportsman and many of his patrons were persons who sought him out because of the many and various kinds of practical information and advice he could give them concerning hunting, fishing, the feeding and care of pets, repairing equipment, etc. When, because of the injuries he suffered in the accident, he was no longer able to attend to his business, it declined in the following year to the extent already stated.” 399 Pa. at 339, 160 A.2d at 442.

Based upon the testimony presented, the Pennsylvania Supreme Court concluded that “the testimony justified the conclusion that the earnings from the plaintiff’s small business were primarily the result of his personal attention and labor.” 399 Pa. at 340, 160 A.2d at 442. Accordingly, the Supreme Court determined that in that case, the trial court did not err in permitting the testimony as a basis for determining the plaintiff’s “loss of earnings and the value of the services which he was capable of performing before the accident and the extent of the limitations thereafter on his capacity to work at gainful employment.” Id. at 340, 160 A.2d at 442.

Similarly, in Serhan v. Besteder, 347 Pa. Super. 11, 500 A.2d 130 (1985), the Pennsylvania Superior Court determined that where a business was small and the income produced by the business was due mainly because of the plaintiff’s personal services and attention, federal and personal income tax returns were admissible to show impairment of the plaintiff’s earning capacity. 347 Pa. Super, at 21, 500 A.2d at 135. In that case, the plaintiff owned a drapery business and worked as an interior decorator. The nature of her work included traveling to clients’ houses for the purpose of providing design advice. In addition, the plaintiff made the draperies herself, and employed independent contractors to install the draperies and perform slipcover work. After she was injured in an accident, she sometimes had to sublet the work. The trial court denied her request to submit Schedule C of her federal tax return to the jury, determining that “the net earnings of the business was not an accurate measure of the value of plaintiff’s services to the business.” 347 Pa. Super, at 17, 500 A.2d at 133.

The Superior Court disagreed, noting that “[i]n many cases, the appellate courts of this Commonwealth have held that where a business is small and the income which produces it is due principally to the personal services and attention of the owner, the net profits of the business may afford a reliable measure of the owner’s earnings.” Id. The Serhan court noted that:

“in Faber v. Gimbel Brothers, 264 Pa. 1, 107 A. 222 (1919), our Supreme Court held that evidence of earnings from a partnership of which plaintiff was a member both before and after the accident was admissible to show decreased earning power as a result of the injury. The court in Faber considered the fact that both partners devoted their entire time to the business and the nominal capital investment in the auto repair enterprise as factors relevant to its decision.

“ ‘The business in question in this case was a small partnership which required the full time and attention of the two partners and employed no other workers. As in Faber, the business was a repair service, and therefore, required little capital investment. We conclude that this case is within the exception to the general rule preventing admission of evidence of earnings from a business to prove impaired earning capacity.’ 272 Pa. Super, at 226-27, 414 A.2d at 1090-91.” 347 Pa. Super, at 18, 500 A.2d at 134.

In determining that the plaintiff’s business fell within the parameters of Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (1960), the Superior Court noted:

“Miss Serhan’s business was veiy small in scope. In 1977 she grossed only $11,805. Her profit was $4,237. Her capital investment involved principally the purchase and installation of sewing machines in her basement. Virtually, the entire business was based on her labors. She acted as an interior decorator and visited customers in their homes to solicit contracts, and before the accident she made all the drapes herself. She used independent contractors for installation and slipcover work only. The fact that she had the expense of subletting drapery work after the accident was a clear measure of a portion of her damages and proof of the value of her services to the business, not a reason to deny her a recovery. Under those circumstances, the tax records were admissible to prove the amount of the loss____An appropriate instruction regarding lost earnings should have been given.” Serhan, 347 Pa. Super, at 19, 500 A.2d at 134. (citation omitted)

Moreover, the Superior Court held that the plaintiff provided sufficient evidence demonstrating a link between the injuries sustained in the accident and the loss of her earning capacity. Id. at 20, 500 A.2d at 134. As such, the Superior Court determined that the trial court erred in refusing to allow the plaintiff to admit her tax returns into evidence, as she had demonstrated impairment to earning capacity. Id. at 21, 500 A.2d at 135.

In the case sub judice, however, the profits and losses of plaintiffs’ business are not a proper measure of plaintiff wife’s loss of income. Here, there was no proposed evidence demonstrating that the profits or losses of the center were dependent mostly upon the actions and services of the plaintiffs. Defense expert McGrail’s report sets forth that the daycare employed several workers at a time, noting, for example, that in the first quarter of 2003, there were 12 employees earning over $300. Report by Lawrence P. McGrail, p. 4. There was no proposed testimony demonstrating that the profits of the daycare were mainly the result of the sole efforts of plaintiffs, nor did McGrail’s report state this. Accordingly, we did not err in refusing McGrail’s testimony regarding the increase in revenue of plaintiffs’ daycare business, as it was irrelevant.

Moreover, this court did not err in refusing to allow McGrail to testify regarding Mr. Moye’s time off from work. The defendant asserts that he should have been permitted to introduce into evidence testimony regarding the amount of time plaintiff husband took off from his employment at the post office prior to and after the accident. The defendant proposed that the testimony was relevant to demonstrate that plaintiff husband did not take a leave of absence from his position at the post office to help with the daycare business solely because of his wife’s accident.

We note that plaintiff husband testified that after his wife’s accident, he took a six-month leave of absence from his job as a clerk at the post office to help with the daycare business. (N.T. at 104.) We note that defense counsel cross-examined plaintiff husband regarding the number of days he was absent from work at the post office prior to plaintiff wife’s accident. (See N.T. at 109-11.) Further, the amount of days taken off by plaintiff husband is not a subject matter requiring expert testimony. In Pennsylvania,

“[i]t has long been established that expert opinion testimony is proper only where formation of an opinion on a subject requires knowledge, information, or skill beyond what is possessed by the ordinary juror. Com monwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). ‘Phenomena and situations which are matters of common knowledge, may not be made the subject for expert testimony.’ Id. at 442, 517 A.2d 920, citing Collins v. Zediker, 421 Pa. 52, 53-56, 218 A.2d 776, 777-78 (1966). ‘Expert testimony is inadmissible when the matter can be described to the jury and the condition evaluated by them without the assistance of one claiming to possess special knowledge upon the subject.’ Id., citing Burton v. Horn and Hardart Baking Co., 371 Pa. 60, 88 A.2d 873, 63 A.L.R.2d 731 (1952).” Commonwealth v. Carter, 403 Pa. Super. 615, 618, 589 A.2d 1133, 1134 (1991), appeal denied, 528 Pa. 621, 597 A.2d 1151 (1991).

Here, the amount of time taken off by plaintiff husband is a matter of common knowledge that could easily be described to and evaluated by the jury without the testimony of an expert. As such, the court did not err in refusing to permit the defendant’s expert to testify regarding plaintiff husband’s time sheets to the jury.

The defendant also complains that the exclusion of all testimony by McGrail prevented him from producing any rebuttal testimony regarding plaintiffs’ exhibits I and L. Exhibit I is a compilation of Kara Cochran’s payroll records, exhibit L, entitled “cost of hiring substitutes,” is a compilation of the mathematical calculations demonstrating plaintiffs’ income loss for the extra pay associated with promoting Kara Cochran and hiring Kelly Harris. The defendant asserts that these documents were never produced during discovery nor identified in plaintiffs’ pretrial statement. As such, the defendant claims he was prejudiced by the trial court’s exclusion of McGrail’s testimony. In response, plaintiffs note that section VII, 7 of their pretrial statement lists “Children’s Palace Daycare Center payroll records” as a potential set of documents to be introduced into evidence. Further, plaintiffs argue that they provided the defendant with copies of Kara Cochran’s checks showing her net pay in advance, and further contend that the only additional information was the gross pay and number of hours worked per pay period. As to exhibit L’s admittance into evidence, plaintiffs contend that the jury would have been exposed to the same information if plaintiff wife had simply performed the calculations on a chalkboard while testifying.

We note: “decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party.” Geise v. Nationwide Life and Annuity Company of America, 939 A.2d 409, 417 (Pa. Super. 2007), quoting Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005), affirmed, 592 Pa. 38, 922 A.2d 890 (2007). (citation omitted)

Plaintiff wife testified regarding Kara Cochran’s increase in pay and Kelly Harris’ salary beginning in November of 2002; she also testified regarding deductions taken from her wage loss claim. (N.T. at 60-65.) Defense counsel cross-examined plaintiff wife extensively regarding Kara Cochran’s salary and paychecks. (See N.T. at 79-84.) Here, the defendant was not prejudiced by the admittance into evidence of plaintiffs’ exhibits I and L. According to plaintiffs, the defendant had received Kara Cochran’s paychecks in advance of trial, and thus had knowledge of what was contained in the payroll records. Further, plaintiffs provided the defendant with the amount of income loss claimed by plaintiff wife in advance of trial. The fact that plaintiffs did not give the defendant a chart of the exact calculations in advance is of no moment.

Next, we will address defendant’s assertion that we erred in allowing the jury to consider plaintiff wife’s inability to work and her wage loss claim. In this case, the defendant argues that plaintiffs presented no medical testimony to link the accident in question with plaintiff wife’s inability to work at the same level as prior to the accident. Thus, the defendant asserts that this court should have excluded all testimony regarding plaintiff wife’s loss of earning capacity. In Pennsylvania,

“[although in certain situations involving physical injury, it is possible for a jury reasonably to infer causation from the circumstances of an accident or occurrence, see e. g., Illingworth v. Pittsburgh Railways Co., 331 Pa. 369, 200 A. 89 (1938); Fenstermaker v. Bodamer, 195 Pa. Super. 436, 171 A.2d 641 (1961), it is generally acknowledged that the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson. See Lambert v. Soltis, 422 Pa. 304, 221 A.2d 173 (1966); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963). For a plaintiff to make out his cause of action in such a case, therefore, the law requires that expert medical testimony be employed. In addition to its bearing on whether or not the defendant’s conduct was negligent, such testimony is needed to establish that the injury in question did, with a reasonable degree of medical certainty, stem from the negligent act alleged. Commonwealth v. Hamilton, 459 Pa. 304, 329 A.2d 212 (1974); Houston v. Cannon-Bowl Inc., 443 Pa. 383, 278 A.2d 908 (1971).” Hamil v. Bashline, 481 Pa. 256, 267, 392 A.2d 1280, 1285 (1978).

Further, “[i]t is well established that the fact and the extent of the impairment are jury questions,... and that no expert testimony is required in this jurisdiction to show loss of earning capacity, Goodhart v. Pennsylvania RR Co., 177 Pa. 1, 35 A. 191 (1896) but where expert testimony is preferred and relevant it is admissible.” Gary v. Mankamyer, 485 Pa. 525, 530, 403 A.2d 87, 90 (1979). (citation omitted) Thus, under the law, there is no requirement that plaintiffs present expert medical testimony linking plaintiff wife’s inability to work with the accident in question; Hamil requires that a plaintiff present expert medical testimony to show only that the injuries sustained stem from the accident in question.

The testimony of record reveals that plaintiff wife was taken to the hospital immediately following the accident, where she complained of neck and low back pain. (N.T. at 34.) Plaintiff wife testified that although she attempted to get back to work after the accident, she stated that she was in so much pain that she could only stay at work for a couple of hours at a time, that she had a hard time sitting on the floor with the children and working on the computer, and that she was unable to do the shopping for the daycare center. (N.T. at 37.) She stated that immediately after the accident she tried to go back to work for about four weeks. Id. As such, plaintiff wife testified that she was unable to work the required 30 hours per week as program director of the daycare center. (N.T. at 37-38.) She further stated that she was off work completely from November of 2002 until March of 2003. (N.T. at 41.) Dr. Michael Sisk, a chiropractor, treated plaintiff wife from May 7,2004 until November of2004. (Sisk deposition at 6, 12.) He testified that he found “decreases in the cervical range of motion, in fiexation, and extension with pain response, and also in the lumbar area on rotation and extension.” (Sisk deposition at 8.) He diagnosed her with a “cervical sprain/strain, a lumbar sacral sprain/strain, myofacial syndrome and muscle spasm.” (Sisk deposition at 9-10.) Plaintiff wife was treated by Dr. Sisk again between March and August of 2005. (Sisk deposition at 13-14.) Dr. Sisk specifically testified that plaintiff wife’s injuries were related to the October 16, 2002 car accident. (Sisk deposition at 15.) Additionally, plaintiffs presented the deposition testimony of Dr. Michael Cozza, aboard certified physician in physical medicine and rehabilitation. (Cozza deposition at 5.) Dr. Cozza testified that as of November 10, 2004, when he saw plaintiff wife, plaintiff wife suffered from “[sjtatus post motor vehicle accident with cervical, thoracic and lumbosacral strain and sprain with continued low grade back pain.” (Cozza deposition at 11.) Further, Dr. Cozza testified that plaintiff wife’s pain was aggravated by bending, carrying, sitting on the floor and prolonged activity. (Cozza deposition at 9-10.)

Thus, based on the foregoing, plaintiffs clearly presented expert medical testimony establishing that plaintiff wife was indeed injured, and that plaintiff wife’s injuries were the result of the October 16, 2002 car accident. As such, plaintiffs met the expert testimony requirement linking the injury to the incident as set forth in Hamil, supra. Further, as set forth supra, plaintiffs presented testimony from plaintiff wife, Dr. Sisk and Dr. Cozza demonstrating that plaintiff wife’s injuries included neck and back pain that hindered her performance of her duties as the director of plaintiffs’ daycare center. Accordingly, the court did not err in permitting the juiy to consider testimony and evidence regarding plaintiff wife’s loss of earning capacity.

Finally, the defendant contends that the trial court erred in instructing the jury that the defendant was responsible for all damages caused by the accident in question. The defendant alleges that in effect, the trial court improperly charged the jury regarding her two pregnancies acting as a pre-existing condition that aggravated her injuries. In Pennsylvania,

“[ejrror in a charge is sufficient ground for a new trial if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Id. [Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995)] (citing Glider v. Commonwealth Dept. of Hwys., 435 Pa. 140, 255 A.2d 542, 547 (1969)); see also, Price v. Guy, 558 Pa. 42, 735 A.2d 668, 670-71 (1999) (‘ [Ejrror will be found where the jury was probably misled by what the trial judge charged or where there was an omission in the charge.’). A charge will be found adequate unless ‘the issues are not made clear to the juiy or the juiy was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to a fundamental error.’ Stewart, 654 A.2d at 540 (quoting Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 69 A.2d 370, 373 (1949)). In reviewing a trial court’s charge to the jury we must look to the charge in its entirety. Stewart, 654 A.2d at 540. Because this is a question of law, this court’s review is plenary. Naylor v. Township of Hellam, 565 Pa. 397, 773 A.2d 770, 773 (2001).” Quinby v. Plumsteadville Family Practice Inc., 589 Pa. 183, 197, 907 A.2d 1061, 1069-70 (2006).
Further,
“[t]he principle is firmly established that a tort-feasor is liable for all direct and proximate consequences of his unlawful act. Where the personal injuries caused by the wrongdoer aggravates an existing infirmity or disease, resulting in prolongation of the injuries and a corresponding increase in damages, compensation for such added or increased damages may be recovered....

“The wrongdoer is liable for all harm caused by his negligent act though increased by an unknown physical condition, which could not have been discovered or anticipated prior to the wrongdoing.” Offensend v. Atlantic Refining Company, 322 Pa. 399, 402-403, 185 A. 745, 746-47 (1936). (citations omitted) Here, the defendant’s actions did not affect plaintiff wife’s pregnancy. However, plaintiff wife’s treatment for her injuries after the accident was affected by her pregnancy. When asked if plaintiff wife’s course of treatment was interrupted, Dr. Sisk testified as follows:

“Yes. It was interrupted by the birth of her child. Then I guess treatment resumed, and then it was interrupted again by a second pregnancy and delivery of a child approximately six weeks prior to her entering care at this office.” (Sisk deposition at 7.)

Further, Dr. Cozza testified:

“Well, first of all, when she first went into therapy, she was six and a half months pregnant and I think that limited what they could do on her. They couldn’t do ultrasound on her or other forms of deep heating, and they had to be very careful on how they did their therapy.
“Then when she did get therapy, she got pregnant again and did not take any therapy, and I think both of these contributed to her perhaps not making the progress she might have made if she had gotten therapy earlier.” (Cozza deposition at 13.)

The testimony of record revealed that plaintiff wife’s pregnancy placed limitations on her ability to undergo and complete the physical therapy regimen prescribed to her by her doctor. The court charged the jury as follows:

“Damages should be awarded for all injuries caused by the accident, even if the injuries caused by the accident were more severe than could have been foreseen because of the plaintiff’s prior physical condition. I remind you that the defendant can be held responsible only for the injuries or condition that you find was legally caused by the accident.” (N.T. at 143.)

We note that the court did not state to the jury during its charge that plaintiff wife’s pregnancy was a pre-existing condition. Clearly, the court did not mention plaintiff wife’s second pregnancy and did not instruct the jury to consider it. Moreover, the court did not instruct the jury that plaintiff wife’s pregnancy was affected by the accident. Instead, the court correctly charged the jury based upon the evidence of record and the appropriate standard of law that the jury should award damages for all injuries stemming from the accident, even if the jury determined that plaintiff wife’s injuries were more severe than could be foreseen due to a prior condition. The court’s charge was not misleading or confusing in any way. Thus, this court properly and appropriately charged the jury with a correct statement of the law.

For the foregoing reasons, the defendant’s post-trial motions were properly denied and the defendant’s request for a new trial was properly refused.


source: Caselaw Access Project

author: SHEPPARD JR., J.,

license: Public Domain

text:
    Philips Brothers Electrical Contractors Inc. v. School District of Philadelphia

      Brian D. Boreman and Donald C. Turner, for plaintiff.

      Miles H. Shore, for defendants.
    April 9, 2008
   SHEPPARD JR., J.,

Defendants’ preliminary objections require the court to determine whether plaintiff may maintain claims of breach of the covenant of good faith and fair dealing, and of violations of both substantive and procedural due process rights under 42 U.S.C. §1983.

The court holds that plaintiff may not maintain any of these claims, and dismisses Counts II, III and IV.

BACKGROUND

Philips Brothers Electrical Contractors Inc. is a Pennsylvania corporation based in West Chester, Pennsylvania. Defendant, the School District of Philadelphia is an entity constituted under the laws of the Commonwealth of Pennsylvania. Defendant, the School Reform Commission is “responsible for the operation, management and educational program of the [Sjchool [District.” The Commission took over the operation, management and educational program of the Philadelphia School District after the school district was declared “in distress.”

In 2005, defendants invited bids for the construction of the New Audenried High School, located at 3301 Tasker Street, Philadelphia, Pennsylvania. Philips submitted the winning bid and was awarded the electrical contract, no. B-833C, of2004-2005. The contract, styled as a contract “for convenience,” enabled the school district to terminate the relationship “upon 10 calendar days’ written notice to [Philips], for the convenience of the school district.” The contract was signed by the chairman of the Commission on behalf of the school district.

The complaint alleges that after Philips won the bid, defendants required Philips to use union workers for work under the contract. The contract allegedly contained no provision requiring the use of union workers, and Philips refused to comply with defendants’ out-of-contract request. On July 25, 2006, the school board informed Philips that it was exercising its right to terminate the electrical contract for its convenience. Philips then instituted this action on July 24, 2005.

The complaint asserts breach of contract, breach of the covenant of good faith and fair dealing, violations of plaintiff’s substantive and procedural due process rights, and promissory estoppel. Defendants’ preliminary objections seek to dismiss the claims of breach of the implied covenant of good faith and fair dealing, violations of plaintiff’s substantive and procedural due process rights, and promissory estoppel, on grounds that such claims are legally insufficient. The objections also ask the court to dismiss the claims for lost damages asserted in the breach-of-contract count, and to dismiss the complaint in its entirety as against the Commission.

DISCUSSION

“[A] demurrer tests the legal sufficiency of the complaint. A trial court may sustain a demurrer, and thereby dismiss a claim, only when the law is clear that a plaintiff is not entitled to recovery based on the facts alleged in the complaint. In determining the merits of a demurrer, all well-pleaded, material facts set forth in the complaint and all inferences fairly deducible from those facts are considered admitted and are accepted by the trial court as true.” “Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.”

I. Count II Asserting Breach of the Covenant of Good Faith and Fair Dealing Is Dismissed

In Pennsylvania, “[wjhere a duty of good faith arises, it arises under the law of contracts, not under the law of torts.” “[A] breach of the covenant of good faith is nothing more than a breach of contract claim and . . . separate causes of action cannot be maintained for each, even in the alternative.”

The complaint alleges that “defendants breached their obligations to engage in a good faith effort and/or fail [sic] dealing under the contract,” and that plaintiff “suffered damages” “[a]s a direct and proximate result of defendants’ unlawful termination of the contract.” This claim arises from the contractual relationship and is nothing more than a breach of contract claim. It may not be maintained separately. Count II is dismissed.

II. Counts III and IV Asserting Violations of Plaintiff’s Substantive and Procedural Due Process Rights, Under 42 U.S.C. §1983, Are Dismissed

Defendants move to dismiss the claims asserting violations of plaintiff’s substantive and procedural due process rights because in a “for convenience,” contract, these constitutional rights are protected by 42 U.S.C. §1983.

“When a plaintiff asserts a claim under 42 U.S.C. §1983, the court must determine whether plaintiff’s asserted interests fall within the protected rights of life, liberty and property of the Fourteenth Amendment. Not all government contracts create a property interest protected under the due process clause of the Fourteenth Amendment. There are two types of government contracts that create a property interest under the Fourteenth Amendment. The first type arises when the contract confers a protected status “characterized by a quality of either extreme dependence in the case of welfare benefits, or permanence in the case of tenure, or sometimes both, as frequently occurs in the case of Social Security benefits. The second... type of property interest arises where the contract... includes a provision that the state entity can terminate the contract only for cause.”

The electrical contract between Philips and defendants states that

“[t]he school district may ... terminate the whole or any portion of the workfor the convenience of the school district. Such termination for convenience shall be, at the school district’s sole discretion, and without penalty, cost, or liability to the school district. The contractor shall be entitled to payment from the school district for any work satisfactorily performed in accordance with the provisions of the contract prior to the effective date of termination.
“The work . .. includes all labor, materials, consumables, small tools, and equipment, and contractual requirements ... necessary to produce such construction, and all materials incorporated or to be incorporated in such construction.”

This complaint alleges that “defendants were acting under color of state law when they deprived plaintiff of its property rights by unlawfully terminating the contract.” But, here the contract is not terminated for cause. Rather, the contract was terminated “for convenience,” which does not constitute violations of plaintiff’s constitutionally protected property rights. Counts III and IV of the complaint are dismissed.

Otherwise, the objections are overruled.

The court will enter a contemporaneous order consistent with this opinion.

ORDER

And now, April 9, 2008, upon consideration of the preliminary objections filed by defendants, the School District of Philadelphia and the School Reform Commission, the response of plaintiff, Philips Brothers Electrical Contractors Inc., in opposition, the respective memoranda of law, all matters of record, and in accord with the contemporaneous opinion, it is hereby ordered that said preliminary objections are sustained in part and overruled in part. Counts II, III and IV of the complaint are dismissed.

      . http://www.corporations.state.pa.us/corp/soskb/Corp.asp7265399.

      .24P.S. §2-201.

      .24P.S. §6-696(e)(l).

      . 24 P.S. §6-696. Declaration of distressed school district status, exhibit A to defendants’ motion to determine preliminary objections.

      . Complaint, exhibit A.

      . Notice of classification and pre-qualification and school district/ contractor agreement. Complaint, exhibits B and C.

      . School district/contractor agreement, general conditions of the contract for construction, ¶14.2.

      . School district/contractor agreement, exhibit C to defendants’ motion to determine preliminary objections.

      . Complaint, ¶17.

      . Complaint, ¶¶18-20.

      . Termination for convenience of awarded construction contract work, exhibit F to plaintiff’s response to defendants’ motion to determine preliminary objections.

      . Insurance Adjustment Bureau Inc. v. Allstate Insurance Company, 588 Pa. 470, 480, 905 A.2d 462, 468 (2006). (citations omitted)

      . R.W. v. Manzek, 585 Pa. 335, 351-52, 888 A.2d 740, 749 (2005).

      . Heritage Surveyors & Engineers Inc. v. National Penn Bank, 801 A.2d 1248, 1253 (Pa. Super. 2002).

      . JHE Inc. v. SEPTA, 2002 Phila. C.C.P. Lexis 78 (Phila. C.C.P. Lexis 2002).

      . Complaint, ¶¶36-38.

      . Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

      . Unger v. National Residents Matching Program, 928 F.2d 1392, 1398 (3d Cir. 1991).

      . Unger v. National Residents Matching Program, 928 F.2d at 1399 (3d Cir. 1991).

      . General conditions of the contract between the School District of Philadelphia and Philips Brothers Electrical Contractors, §§14.2.1, 14.2.2. (emphasis supplied)

      . General conditions of the contract between the School District of Philadelphia and Philips Brothers Electrical Contractors, §1.13.

      . Complaint, ¶¶40, 49.


author: LESKINEN, J,

text:
    Commonwealth v. Harris

      Pete Hook, for Commonwealth.

      Paul Gettleman, for defendant.
    February 1, 2008
   LESKINEN, J,

ORDER AND OPINION

AND NOW, February 1, 2008, upon consideration of the defendant’s omnibus pretrial motion filed on September 22,2006, the hearing held on November 22,2006 on the said motion; the arguments and authorities thereafter submitted by counsel; and based on recent appellate court decisions, this court hereby finds that the defendant’s motion must be denied, for all of the reasons set forth below.

The defendant is charged with two counts of aggravated assault and various drug charges, arising from a series of related incidents that occurred on October 7, 2005. On that date, Robert Kelly, an agent for the attorney general’s “Strike Force 5” team was conducting a pre-planned systematic stop of all vehicles entering, stopping for any conversation, and then leaving the Fort Mason Village Housing Projects in Masontown, a known area of high crime and drug activity. Fort Mason Village is infamous locally as a “drive-through supermarket” for the sale of illegal drugs. Agent Kelly viewed the defendant stopping his car and making contact with two males loitering outside. (Of course, the race of the participants is irrelevant. What is relevant is the specific transaction occurring in a high crime, high drug area. Commonwealth v. Shaw, 76 D.&C.4th 430 (2005).) Mid-level drug dealers operating out of their cars to check on “inventory” and deliver smaller quantities of illegal drugs to their team of street-level dealers would be virtually immune from detection and prosecution in the absence of specifically tailored police tactics such as were used here.

After Harris left the housing project, Agent Kelly had a waiting “take down” team pull his car over on nearby Route 21. One of the officers that pulled over the car, Officer Kaminsky, noticed what appeared to be “crack” cocaine crumbs on the lap of the Defendant. (Omnibus pretrial transcript, pp. 58-61.) It was established that Kaminsky had enough experience to make a reliable observation in that regard. (N.T., pp. 54-55.) Harris denied being a drug dealer or user, but gave permission for the vehicle to be searched. Officer Standish found a pair of pants with approximately $2,500 in cash in the back seat, and after consulting superior officers, Kaminsky and Standish asked Harris to get out of the car. Harris was then to be transported to the station for further questioning.

As Harris was being readied for transport outside of the car, he started an altercation with the officers and attempted to escape. Against the commands of the attending officers, the defendant reentered his car. Kaminsky tried to stop him, but Harris resisted and drove away from the scene with Officer Kaminsky dangerously hanging out of the open car door. Kaminsky believed Harris was trying to reach for a gun. Harris attempted to kick Officer Kaminsky free from the car while it was moving, and simultaneously reached into the glove box and threw drugs and drug paraphernalia out of the car window. The vehicle eventually came to rest at a “jersey” barrier, at which point Harris continued to assault Officer Kaminsky. After Kaminsky and the other officers subdued Harris, the cocaine and drug paraphernalia were recovered from the vehicle’s path where Harris had thrown them.

In his motion to suppress, Harris argues that the stop was illegal, and that everything that occurred thereafter must be suppressed. Based on such suppression, Harris argues that all charges must be dismissed.

It is true that a seizure for Fourth Amendment purposes occurs whenever a person is physically detained or submits to an order to stop. Florida v. Bostick, 111 S.Ct. 2382 (1981). A person is in custody when he is “physically denied his freedom of action” or he is placed in a situation where he reasonably believes his freedom of movement is restricted. Commonwealth v. Johnson, 556 Pa. 218, 727 A.2d 1089 (1999).

Normally, a vehicular stop must be supported by probable cause. An exception to the requirement of probable cause occurs when a vehicle is subjected to a valid “road-block” or systematic stop. Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004); Commonwealth v. Beaman, 583 Pa. 636, 880 A.2d 578 (2005). Individualized suspicion is not an absolute requirement for a valid stop, provided that the systematic stop meets constitutional requirements. Id. While systematic stops occur most frequently in the context of drunk driving checkpoints, such stops are not limited to traffic violations. It would certainly be absurd to suggest that vehicles could be stopped to check for a drunk driver, but cannot be stopped to check for a terrorist carrying a bomb. (In this instance, twenty grams of crack cocaine could originate uncountable secondary crimes and community destruction similar to the effect of a bomb.)

In order to determine whether the stop was constitutionally reasonable in the instant case, this court must weigh the gravity of the public concerns to be served by the systematic stop, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. Id.

This court finds that the infamous open-air drug market at Fort Mason Village was a matter of the most grave public concern. The systematic stop of all vehicles traveling into, stopping briefly, and then traveling out of that illegal drug haven very obviously advanced the public interest — in this case alone resulting in the seizure of more than 20 grams of cocaine and the interdiction of a significant mid-level dealer distributing that societal poison. Although the stop ultimately may result in a substantial interference with Harris’s individual liberty, by contrast, the impact on a law-abiding motorist subjected to the same stop would have been very brief and minor.

It is only because Harris had apparent drug residue in plain view on his lap, had an inexplicable amount of small denomination cash, only because he disobeyed the commands he was given, and only because he then willfully endangered the life and health of the officers; that he is now facing serious legal consequences.

After balancing the above constitutionally-dictated factors, this court finds that the record contains enough evidence and testimony to justify the systematic stop at issue here. Agent Kelly, at the time of this incident, had been employed in his present capacity on the drug task force for more than 16 years, and he had direct knowledge that Fort Mason Village was a center of drug activity. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673 (1999). The police are not required to ignore relevant characteristics of location in determining whether circumstances are sufficiently suspicious to warrant further investigation. Illinois v. Wardlow, 528 U.S. 119(2000). Reasonable suspicion for a stop is justified when the defendant was in an area known for drug activity, and exchanges characteristic of a drug deal take place. Commonwealth v. Pizarro, 723 A.2d 675 (Pa. Super. 1998). The Pennsylvania Superior Court case of Commonwealth v. Wells, 916 A.2d 1192 (Pa. Super. 2007) involves somewhat similar facts. The totality of the circumstances must be taken into account “through the eyes of a trained police officer.” See also, Commonwealth v. Stroud, 699 A.2d 1305 (Pa. Super. 1997).

Furthermore, the standard to stop is met if “the police officer’s reasonable and articulable belief that criminal activity is afoot [is] linked with observation.” Commonwealth v. Espada, 364 Pa. Super. 604, 609, 528 A.2d 968, 970 (1987).

The objective of the police tactic that night was to stop eveiy car that went through Fort Mason Village with only a brief pause for conversation or other transactions. The defendant’s car was one of four cars that the Strike Force team attempted to stop. The fact that two of the cars evaded being stopped, and the fact that the systematic stop program necessarily ended early after Flarris assaulted Officers Kaminsky and Standish, does not affect the validity of the two stops that were made.

Once Officer Kaminsky lawfully observed crumbs of what appeared to be “crack” cocaine in the defendant’s lap, he had good reason to continue the investigation. Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985); see also, Commonwealth v. Clinton, 905 A.2d 1026 (Pa. Super. 2006). Likewise, once the unusually high amount of small-denomination cash was found, further investigation was prudent. At that point it can be considered an open question whether or not the police had sufficient probable cause to arrest Flarris. The reason that question can remain open is that it is essentially irrelevant to what then occurred.

If the defendant had submitted to further questioning at the station, in all likelihood he would have been questioned and then released. If the police had searched his car further — without his consent — at that point, he could argue that the results of that search should be suppressed. It is only because he refused the commands of the officers and engaged in illegal assaultive conduct towards them, that his drugs and drug paraphernalia were ultimately disclosed.

While the court does not believe that Harris was arrested illegally, he had no right to resist even an illegal arrest. Commonwealth v. Jackson, 592 Pa. 232, 924 A.2d 618 (2007); Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (1995); Commonwealth v. Britt, 456 Pa. Super. 633, 691 A.2d 494 (1997). As noted in Jackson, supra:

“The initial illegality does not give the arrestee a free pass to commit new offenses without responsibility. Neither does that initial illegality ‘poison the tree,’ preventing lawful police conduct thereafter — the new crimes are new trees, planted by [the arrestee], and the fruit that grows from them is not automatically tainted by the initial lack of probable cause.” 592 Pa. at 237, 924 A.2d at 621.

In this case, all crimes for which Harris is currently being prosecuted occurred (or were discovered) at (and after) the time he assaulted Officers Kaminsky and Standish. We cannot condone his attack by allowing him to benefit from it. The right to be free from illegal searches and seizures is a shield, and not a sword.

Accordingly, the defendant’s omnibus pretrial motions are all denied.


author: HIGGINS, J.,

text:
    Carney v. Carney

      Jane Roach Maughan, for plaintiff.

      Donald F. Spry, II, for defendant.
    February 15, 2013
   HIGGINS, J.,

— These are exceptions filed by Donald R. Carney (hereinafter “husband”) from the recommendations of Robert C. Lear, Esquire, Divorce Master (hereinafter “master”). The Carneys were married on April 3, 1987. No children were bom of the marriage. Kathy M. Camey (hereafter “wife”) filed a complaint for divorce on July 30, 2010. The parties attended three hearings before the master on June 22,2011, October 26, 2011, and November 22, 2011. Concurrently, an APL de novo hearing was held before the support master on January 28,2011 and an expert trial deposition was taking on July 12,2011. Since alimony is an issue in this case, it was agreed that the testimony before the support master would be incorporated in this proceeding. The master filed his report and recommendations on June 20, 2012. The master’s report recommended equitable distribution of the assets. Husband filed timely exceptions to the report on July 10, 2012. Husband submitted his brief in support of defendant’s exceptions to the master’s report on August 17, 2012. Wife filed her brief in opposition to defendant’s exceptions on the same day that argument was held before this court on October 1, 2012. Husband filed his reply brief to wife’s brief on October 11, 2012.

DISCUSSION

When evaluating the merit of any exceptions filed to a divorce master’s recommendation, this court must first examine the master’s report. In Pennsylvania, “a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly to the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Moran v. Moran, 839 A.2d. 1091, 1095 (Pa. Super. 2003) (citing Simeone v. Simeone, 551 A.2d 219, 225 (Pa. Super. 1988)). However, the master’s report “is advisory only...and the reviewing court is not bound by it and it does not come to the Court with any preponderate weight or authority which must be overcome.” Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super. 2000) (citing Arcure v. Arcure, 281 A.2d 694, 695 (Pa. Super. 1971)). In determining issues of credibility, the master’s findings must be given the greatest weight because “it is he who heard and observed the witnesses.” Mott v. Mott, 453 A.2d 1038 (Pa. Super. 1982). “[Ajlthough the master’s report is entitled to great weight, it is the responsibility of the court to make the final equitable distribution.” Trembach v. Trembach, 615 A.2d 33, 35 (Pa. Super. 1992) (citing Morschhauser v. Morschhauser, 516 A.2d 10 (Pa. Super. 1986)).

Husband filed eighteen exceptions to the report of the master, contending that the master erred (1) in valuing Brother’s Auto Transport at either $963,922 or $849,888 based on alternate tax effected values which were based on a calculated value, not a fair market value; (2) by rejecting the fair market value of Brothers Auto Transport (before tax effecting) at $ 1,000,000 based upon a valuation report; (3) in rejecting the tax effected value of a net loss of $497,464 dollars for Brothers Auto Transport which was based upon a valuation report which established a fair market value; (4) to the extent that it was determined that the ESSA joint checking account was utilized for a large number of husband’s bills; (5) to the extent that it was determined that wife was totally disabled (master’s report, p. 9); (6) in failing to account for husband’s contribution to acquisition of assets (equitable distribution factor 7); (7) in considering an agreement of sale to purchase a property as evidence of stand of living of the parties during the marriage (equitable distribution factor 9); (8) in considering that wife is the primary caretaker for her eighty-five (85) year old mother and sixty-two (62) year old mentally challenged disabled brother as a factor in the standard of living of the parties (equitable distribution factor 9); (9) in recommending a transfer of the formal marital home to wife and recommending husband satisfy the mortgage or obtain a release of wife from the mortgage; (10) in recommending that husband pay the taxed on the Ameriprise 401(k) which was awarded to wife; (11) in recommending that Husband contribute towards wife’s counsel fees; (12) in recommending a skewed distribution scheme which transfers assets to Husband at improper values and requires him to assume all martial debt; (13) to the extent that there was a finding that wife is totally disabled (alimony factor 2, master’s report, p. 15); (14) in finding as an alimony factor that wife’s earning power, expenses or financial obligations are affected by her care for her eighty-five (85) year old mother and her sixty-two (62) year old mentally challenged disabled brother (alimony factor 7, master’s report, p. 16); (15) in finding as an alimony factor that husband’s standard of living during marriage is affected by an agreement of sale to purchase a residence (alimony factor 8, master’s report, p. 16); (16) in recommending that husband pay permanent alimony; (17) in recommending that Husband pay $8,000 per month in permanent alimony; and (18) in recommending that husband procure life insurance in the amount of $500,000. We will now address each exception.

I. MASTER’S ACCEPTANCE OF PLAINTIFF’S VALUE OF BROTHER’S AUTO TRANSPORT BASED UPON A CALCULATED VALUE, AS OPPOSED TO A MARKET VALUE. (Exceptions 1-3).

We will now dispose of exceptions 1-3. Husband is the one-hundred percent (100%) owner of a business known as Brother’s Auto Transport. (Master’s report, page 5). Brother’s Auto Transport picks up new and used vehicles and transports them to various locations across the country. (Master’s report, P. 5). Brother Auto Transport owns approximately forty (40) auto carrier tractors and trailers, most of them highly specialized for the transport business and has had average gross sales of nearly $9,000,000 annually over the past four (4) years. (Master’s report, p. 5). The parties differ as to the valuation of the business and presented evidence in support of each side. (Master’s report, p. 6).

Husband contends the master erred by adopting the wife’s valuation evaluation, specifically, (1) in valuing Brother’s Auto Transport at either $963,922 or $849,888 based on alternate tax effected values which were based on a calculated value, not a fair market value; (2) by rejecting the fair market value of Brothers Auto Transport (before tax effecting) at $ 1,000,000 based upon a valuation report; and (3) in rejecting the tax effected value of a net loss of $497,464 for Brothers Auto Transport which was based upon a valuation report which established a fair market value.

In determining the value of marital property, the court is free to accept all, part or none of the evidence as to the true and correct value of the property. Smith v. Smith, 2006 PA Super 175, 904 A.2d 15, 22 (Pa. Super. 2006) (citing Litmans v. Litmans, 449 Pa.Super. 209, 673 A.2d 382, 395 (Pa. Super. 1996) Aletto v. Aletto, 371 Pa. Super. 230, 537 A.2d 1383 (Pa. Super.1988)). Furthermore, the Pennsylvania Divorce Code fails to specify the standard of value that should be applied in the context of equitable distribution. Buckl v. Buckl, 542 A.2d 65, 70 (Pa. Super. 1988). The method of valuation depends on the nature of the property interest involved, and the court must look at “the realities of the situation and avoid an unrealistic valuation.” Buckl, 542 A.2d at 70. Thus, this court is not bound to apply a specific valuation method when making a determination for equitable distribution. Id.

In his brief, husband cites persuasive authority consisting of IRS Regulations, Revenue Rulings and non-binding case law in support of his argument that the Master should have adopted his valuation evaluation which is based on the fair market value standard of business evaluation, as opposed to wife’s evaluation method which is based on the calculated value of the business. [Husband’s brief in support, p. 8-11] We will now review the valuation methods used by both parties’ experts.

Husband employed the services of Jake Grow, who is in the business of selling new and used automobile transport equipment, to determine the value of the trucks as assets for Brother’s Auto Transport. [N.T. 6/22/2011, p. 9]. Mr. Grow has done business with husband for years and has sold a significant portion of the current assets being valued to husband. [N.T. 6/22/2011, p. 10-11 and N.T. 10/26/2011, p. 71]. Mr. Grow also considers himself to be personal friends with husband. [N.T. 6/22/2011, p. 11] When determining value for the trucks, Mr. Grow testified that he doesn’t use the NADA guidelines or any other outside material, but bases the value solely on his experience. [N.T. 10/26/2011, p. 64 and N.T. 6/22/2011, p. 32]. The value number generated by Mr. Grow for the value of the trucks was $974,100. [N.T. 10/26/11, exhibit D-9]. This number was then utilized by Dale N. Capone, CPA, CVA (hereinafter “Capone”), husband’s expert witness, to determine the value of Brother’s Auto Transport. Capone valued the business using an income approach to determine the fair market value at $1,000,000 as of December 31, 2010. [N.T. dated 10/26/11, pp. 8, 9, and D-9]. Capone opined that if the business were sold there would be a net loss of $497,464 due to the debt and tax effected value. [Master’s report, p. 6].

Wife employed the services of Barry E. Ridger, the owner of East Coast Truck and Trailer Sales, which has been involved with auto carriers since the 1990’s, to determine the valuation of the trucks. [N.T. 10/26/2011, p. 12]. Mr. Ridger analyzed each individual unit in the Brother’s Auto Transport Fleet, obtained the NADA value for it, and then used the NADA value for the trucks combined with the value of the trailers from his own sales expertise to achieve final values. [N.T. 10/26/2011, p. 55-56]. Based on his calculations, he valued the trucks and trailers at the sum of $3,336,134, and then added the value of 2001 Ford Expedition valued at $6,000 and 2002 Ford F-150 also valued at $6,000. [Plaintiff’s exhibit- 90]. Those values were then utilized by David E. Coffman, CPA, ABV, CFF, CVA (hereinafter “Coffman”), who then determined the revised calculated value of the company was $1,978,328. [N.T. 6/22/11,21, plaintiff’s exhibit 94], If the business were sold, Coffman established that the net, after payment of taxes would either be $963,922 or $849,888 if a carryover of net operating loss (NOL) from 2010 was not applied. [Master’s report, P. 6].

The master noted that vast difference in the valuations of the business comes from the value associated with the trucks and their specialized trailers in that these are all the assets of the business. [Master’s report, pp. 6-7].

The master made a factual finding that Mr. Ridger was very credible. (Master’s report, page 7). The master reasoned that Mr. Ridger was impressive not only because of his expertise in the field but also in the methodical way that he analyzed every single piece of equipment that was owned by the business using the then current NADA values for the tractors, then his own expertise for the highly specialized trailers that are not given a NADA value due to their unique status. (Master’s report, p. 7). Based on this factual finding and also on the work of David E. Coffman, the master found wife’s expert witness who used the valuation numbers from Mr. Ridger to determine the value of the business to be most reliable and adopted wife’s valuation evaluation for purposes of the balance of the master’s report. (Master’s report, p. 7).

As this is an issue of credibility, we give the greatest weight to the master’s factual findings. After reviewing the record, we agree with the master that the record is clear regarding Mr. Ridger’s analysis and valuation of Brother’s Auto Transits assets. [See N.T. 10/26/2011, pp. 12-60 and plaintiff’s exhibit 90]. Therefore, we agree with the master’s finding that Wife’s valuation evaluation of Brother’s Auto Transport is the most reliable and used for the purposes of the balance of this report. Defendant’s exceptions numbered one (1), two (2), and three (3) are therefore denied.

II. MASTER’S FINDING THAT THE ESS A JOINT CHECKING ACCOUNT WAS UTILIZED FOR A LARGE NUMBER OF HUSBAND’S BILLS. (Exception 4).

We will now address husband’s divorce exception number four (4). Husband contends that the master erred in determining that the ESS A joint checking account was used for a large number of husband’s bills. The ESS A joint checking account had a balance of $58,000 at the time of separation. (Master’s report, page 7). The master made a factual finding that post separation, wife used the ESSA joint check account for payment of husband’s bills and household expenses and even went as far as to inform husband that she was writing these checks and he did not protest nor take any withdrawals from the account. (Master’s report, page 7). The account was closed after the last bill. (Master’s report, page 7).

Husband contends the master found that husband did not make withdrawals from the account other than the alleged bills that were apportioned to him. (Master’s report, page 7). However, husband argues that the master did not elaborate or determine the validity of the bills, nor did he account for the specific amount attributed to husband and that the record is denied of any account or evidence of whose bills were paid. (Husband’s brief in support of exceptions, page 11). In opposition, wife argues that husband did not contradict her testimony or introduce evidence that the account was used solely for wife’s personal needs. (Wife’s brief in opposition, page 11). In husband’s reply brief, husband argues that wife almost exclusively used the joint ESSA checking account. (Husband’s reply brief, p. 4).

A review of the record reveals wife testified that she used this account post separation for payment of husband’s bills for prescriptions and medical bills as well as household expenses. (Hearing transcript 10/26/11, pp. 100-101). Wife even went as far as to inform husband she was writing these checks and that he did not object. (Hearing transcript 10/26/11, p. 101). Husband did not present any evidence or conflicting testimony as to wife’s testimony. As this is an issue of credibility, we give the greatest weight to the master’s factual findings. After reviewing the record, we agree with the master that the record is clear regarding the wife’s use of ESSA checking account to pay husband’s bills. We will not disturb the master’s determination on this subject. Thus, defendant’s exception no. 4 is denied.

III. MASTER’S FINDING THAT FACTOR 7 — “The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker” CLEARLY FAVORS THE WIFE. (Exception 6).

We will now address husband’s exception number six (6). Husband asserts that the master incorrectly favored Wife when evaluating factor number seven (7) concerned with the dissipation or contribution of each party in the acquisition, preservation, depreciation or appreciation of the martial property. The master determined that factor seven (7) “clearly favors Wife due to her contribution as a homemaker in maintaining of the interior and exterior of the residence while Husband was working long hours to increase the size and profitability of the business.” (Master’s report, p. 10).

Husband concedes that he was unable to contribute as a traditional homemaker due to working long hours to increase the size of the business and personal wealth of the parties. (Husband’s brief in support, p. 11). However, husband argues he installed an in ground pool, pool house, new garage, bam, a putting green, and professional landscaping to add to the overall value and enjoyment of the martial home where the wife remained after separation. (Husband’s brief in support, pp. 11-12).

Wife’s role during the marriage was that of housekeeper and homemaker. [N.T. 10/26/11, p. 102]. In that capacity, she took care of the cooking, cleaning, dry cleaning, grocery shopping, and yard work to the exterior of the home. [N.T. 10/26/11, pp. 102-103]. Furthermore, when husband’s children from his previous marriage were scheduled to visit, wife would drive over 500 miles round trip to and from Attica, New York, usually early in the morning, so the children would be there when he came home for dinner. [N.T. 10/26/11, p. 103].

Wife testified that the improvements to the martial home, highlighted above, were made a couple of years ago. [N.T. 10/26/11, p. 84]. Wife further testified that the martial home had been previously paid off in full and that the funds to pay for those items were borrowed on the current mortgage. [N.T. 10/26/11, p. 84]. That mortgage remains against the martial home and the current balance as ofthe date ofthis hearing was $159,000. [N.T. 10/26/11, p. 85]. The master took into consideration that Husband did work long hours to increase the size and profitability of the business. [Master’s report, p. 10]. Husband was awarded one-hundred percent (100%) of the interests in the business and the business real estate, which represents husband’s valuable contribution to the creation of the business. [Master’s report, p. 5]. We will not disturb the master’s determination on this subject. Thus, defendant’s exception number six (6) is denied.

IV. MASTER’S ERRED IN RECOMMENDING A SKEWED DISTRUBTION SCEME WHICH TRANSFERS ASSETS TO HUSBAND AT IMPROPER VALUES AND REQUIRES HIM TO ASSUME ALL MARTIAL DEBT, SPECIFICALLY, MASTER’S RECOMMENDATION THAT HUSBAND TRANSFER THE FORMER MARITAL HOME TO WIFE AND THAT HUSBAND SATISFY THE MORTGAGE OR OBTAIN A RELEASE OF WIFE FROM THE MORTGAGE AND MASTER’S RECOMMENDATION THAT HUSBAND PAY THE TAXES ON THE AMERIPRISE 401(K) WHICH WAS AWARDED TO WIFE. (Exceptions 9, 10, and 12).

Husband contends that the divorce master erred in recommending a transfer of the formal marital home to wife and recommending husband satisfy the mortgage or obtain a release of wife from the mortgage and in recommending that husband pay the taxes on the Ameriprise 401 (k) which was awarded to wife. (Husband’s brief in support, pp. 12-13). As a result, husband argues that the master’s recommendations resulted in a skewed distribution scheme which transfers assets to husband at improper values and requires him to assume all martial debt.

Husband argues that the master improperly awarded the marital home to wife and recommended that husband either satisfy the mortgage or release wife from its terms. (Husband’s brief in support, p. 13). He asserts that the record lacked any analysis of whether husband has the financial ability to satisfy the mortgage or obtain a release. (Husband’s brief in support, p. 13).

In regards to the Ameriprise 401(K) account, husband concedes that the master properly considered the tax consequences of the Ameriprise account and argues that the master erred in requiring husband to pay the taxes to wife. (Husband’s brief in support, p. 13). We will now review the equitable distribution scheme.

Husband’s exceptions are based on the premise that the value of Brother’s Auto Transport is contrary to law. (Husband’s brief in support, pp. 12-13). We have already determined that the master’s adoption of wife’s valuation evaluation of the business at $3,336,134.00 was not contrary to law and will review the master’s recommendation for equitable distribution.

The master determined that Brother’s Auto Transport is a successful business and would be worth significantly less to the parties if it were liquidated and its assets sold. [Master’s report, p. 12]. Instead of forcing the parties to liquidate the business, the master awarded all of the business interests and property to husband which is worth approximately $3,336,134. [Master’s report, p. 5]. To make up for this disparity, the master recommended that wife be awarded the martial home worth $244,400 and directed husband to either satisfy the existing debt of approximately $150,000 or assume it solely, as well as directed that husband be held responsible for the taxes the Ameriprise 401(K) account worth $231,662, which equates to approximately $62,800 owed in taxes, with the disparity of the award made by “substantial” or “permanent” alimony award. [Master’s report, pp. 12-13].

We find that the husband’s allegations that the equitable distribution scheme is skewed because the master’s award results with the husband saddled with all the debt of approximately $621,470, while wife receives assets of $534,062 to be unfounded. Husband was given 100% of the business. There remains a significant disparity between the value of the assets awarded to the husband versus the value of the martial assets awarded to the wife, even after the martial debt accumulated by husband is subtracted from that amount. The master sought to reimburse the wife of the remaining significant disparity in the value for the amount of assets by awarding her substantial or permanent alimony. Therefore, we will not disturb the master’s findings in regard to equitable distribution and husband’s exceptions number nine (9), ten (10), and twelve (12) are denied.

V. MASTER CONSIDERED HUSBAND’S AGREEMENT OF SALE TO PURCHASE A PROPERTY AS EVIDENCE OF STANDARD OF LIVING OF THE PARTIES DURING THE MARRIAGE AND THAT HUSBAND’S STANDARD OF LIVING IS AFFECTED BY THE PURCHASE. (Exceptions 7, 15).

Husband argues that the master inappropriately considered evidence regarding an agreement of sale to purchase a residence as an indication of the standard of living during the marriage. Pennsylvania Divorce Code states that “[t]he standard of living of the parties established during the marriage” are a factor to be considered in equitable distribution- 23 Pa.C.S. § 3502(a) (9) and alimony-23 Pa.C.S. § 3701(b)(8). In Edelstein v. Edelstein, the Superior Court held that fact that parties had lived economically during marriage while accumulating wealth did not provide basis for depressing wife’s standard of living following separation. Edelstein v. Edelstein, 582 A.2d 1074 (Pa. Super. 1990) The Superior Court reasoned that

While the restricted lifestyle might have been tolerable, it was below that which was reasonably possible with appellant’s income and position, not out of necessity, but as a matter of choice. The cases which support the position that the standard of living after separation, if possible, should reflect the conditions existing before separation, turn on the available income and lifestyle that income would support. To live during the marriage in a fashion dedicated to reducing expenditures and accumulating wealth, thereby living far below the standard one would expect of persons in that position, cannot be a basis for depressing the living standard of the wife, while permitting the husband to continue to amass large financial assets after separation.

Edelstein v. Edelstein, 582 A.2d 1074, 1077 (Pa. Super. 1990). Thus, the court may consider available income and lifestyle that income may support before the marriage.

Furthermore, “Alimony” is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay. Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. 2004) {emphasis added).

The divorce master found that the lifestyle of the parties was “more than adequate” relying evidence of the renovations and improvements to the premises in 2006. [Master’s report, p. 11.] Those improvements to the martial home consisted of a 40 by 40 foot garage, pole bam, a putting green, a 40 x 18 foot in ground swimming pool, a pool house, a gazebo, two waterfalls, a pond and a little stream that goes into the pond, a lot of pavers, a fancy grill outside, landscaping, and fencing for the premise. [N.T. 10/26/2010, p. 84.]

Husband testified that business has been bad since 2008 and is ongoing to the present day. [N.T. 07/12/2011, pp. 8-13]. Husband claims, “There is no income from the business. Very little income from the business. There’s enough cash flow to continue to pay the bills.” [N.T. 07/12/2011, p. 13.] However, husband testified that in 2010 he took $342,808 out of the business for his own personal matters. [N.T. 07/12/2011, p. 21]. Husband had personal expenditures in the amount of $11,640 paid for the business and $13,590 in professional fees paid by the business in 2010. Then in 2011, during the five month period when this information was gathered, husband averaged approximately $18,922.63 per month. It appears that husband’s income in 2011 will be comparable to his income in 2010. [N.T. 7/12/2011, p. 57.]

In spite of husband’s assertions that business is bad and that he is essentially unable to maintain the lifestyle and standard of living that he had during the marriage due to the business being in decline, he continued to make substantial payments to himself for his own personal matters and also entered into an agreement of sale for the purchase of a $400,000 property in Hamilton Township comprised of 4,825 square foot house with an indoor swimming pool on 5.39 acres. [N.T. 11/22/2011, exhibit “Standard Agreement of Sale”, and master’s report, p.ll.] The master found that husband was maintaining his lifestyle and standard of living that he enjoyed during his marriage as evidenced by the extensive payments husband made to himself from the business and the fact that husband entering into an agreement of sale for the purchase of property worth $400,000. As this is an issue of credibility, we rely extensively on the master’s findings. After a review of the record, we agree with the master’s finding and will not disturb the master’s recommendation in regards to standard of living factors for equitable distribution or alimony. Therefore, husband’s exceptions number seven (7) and fifteen (15) are denied.

VI. MASTER’S RECOMMENDATION THAT HUSBAND CONTRIBUTE TOWARDS WIFE’S COUNSEL FEES. (Exception 11).

We will now address husband’s exception number eleven (11) to the divorce master’s report and recommendation. The master determined that husband is to contribute $15,000 for wife’s reasonable counsel fees pursuant to 23 Pa.C.S. § 3702. Husband contends that there is insufficient evidence to support a basis for counsel fees. [Husband’s brief, p. 13.]

Counsel fees are awarded based on the facts of each case after a review of all the relevant factors. These factors include the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution. Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007) Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004), quoting Anzalone, supra at 785-786. “Counsel fees are awarded only upon a showing of need.” Teodorski, 857 A.2d at 201, quoting Harasym v. Harasym, 486, 614 A.2d 742, 747 (Pa. Super. 1992). “In most cases, each party’s financial considerations will ultimately dictate whether an award of counsel fees is appropriate.” Plitka v. Plitka, 714 A.2d 1067, 1070 (Pa.Super. 1998). Also pertinent to our review is that, “in determining whether the court has abused its discretion, we do not usurp the court’s duty as fact finder.” Teodorski at 201, quoting Verdile v. Verdile, 536 A.2d 1364, 1369 (Pa. Super. 1988).

First, the master found that there was no quarrel with the quantity of work or the hourly rate of the wife’s attorney, in that the business evaluations were rather complex, and as always, vastly different. [Master’s report, pp. 18-19.] Second, the master also determined that the Wife is disabled and incapable of employment, so she is financially limited in legally defending herself. [Master’s report, p. 17.] Third, the master determined that the husband should not bear the full brunt of the wife’s legal fees, which were approximately $35,509.56. [Master’s Report, p. 19.] However, given the husband’s litigious approach to this case, the complexity of this case, and the sizable value of the assets in this case, and the wife’s financial situation, we agree with the master’s recommendation awarding the wife reasonable attorney’s fees in the amount of $15,000. Therefore, we will not disturb the master’s recommendation and exception number eleven (11) is denied.

VII. MASTER’S FINDING THAT WIFE IS SEVERALLY PHYSICALLY LIMITED. (Exceptions 5, 13).

We will now address husband’s exceptions numbered five (5) and thirteen (13) to the master’s report and recommendations. Husband concedes to wife’s condition. [Husband’s brief, p. 14.] However, husband contends that while wife’s condition may prevent her from obtaining certain types of gainful employment, there is nothing of record indicating that wife made any attempt to seek employment or further her education or training for employment. [Husband’s brief, p. 14.]

The master found that the wife has severe physical limitations, which will only grow worse with age. [Master’s report, p. 15.] The master found that the husband made no mention of any physical difficulties, but the wife has an autoimmune system condition - either Lúpus or rheumatoid arthritis, which at the time of the report, was attacking the wife’s nerve functions in her left arm and has previously attacked the nerve functions in her right arm. [Master’s report, p. 8.] Wife is forced to wear a back brace to do any lifting and tore the lining of her spinal cord resulting in spinal stenosis and two herniated discs approximately seven (7) years ago. [Master’s report, p. 8.] Wife’s treatment for her condition at this point is taking muscle relaxers and anti-inflammatory at night. [Master’s report, p. 9.] A review of the record indicates that Husband did not testify with any contradictory evidence and raise no objections or contradictions to wife’s testimony describing her physical limitations.

We find husband claims that the master found the wife capable of employment to be a misstatement. [Husband’s brief, p. 14]. In the master’s report, the master stated, “In regard to Wife, while the Support Master found that she was capable of employment, the Honorable Stephen Higgins, in his review of the support exceptions, found on page three (3) of his opinion ‘Wife does not work outside the home and cares daily for her elderly mother and disable [sic] brother. Although wife worked for Husband when Brother’s was formed, she has no marketable skills that would translate in the workplace.’” [Master’s report, p. 9] (emphasis added). Upon review of the master’s report, the divorce master did not make a finding that wife was capable of employment in his report. [Master’s report, p. 9]. He simply stated that the support master found that wife was capable of employment and that in our opinion on the support exceptions, we determined otherwise. [Master’s report, p. 9.] However, the divorce master did make a finding in his report that “wife is not employable.” [Master’s report, p. 10.]

As this is an issue of credibility, we give the greatest weight to the master’s factual findings. After reviewing the record, we agree with the master that the record is clear that wife is severely physically limited. Therefore, we will not disturb the master’s finding on this issue and exceptions number five (5) and thirteen (13) are denied.

VIII. MASTER’S FINDING AS AN ALIMONY FACTOR THAT WIFE’S EARNING POWER, EXPENSES OR FINANCIAL OBLIGATIONS ARE AFFECTED BY HER CARE FOR HER EIGHT-FIVE (85) YEAR OLD MOTHER AND SIXTY - TWO (62) YEAR OLD MENTALLY CHALLENGED DISABLED BROTHER. (Exception 14).

Husband contends that the master erred in considering the support of family members as a factor that affects wife’s earning power, expenses, or financial obligations. In regards to this issue, the Master stated that factor seven - “‘The extent to which the earning power, expenses or financial obligation of a party will be affected by reason of serving as a custodian of a minor child’ technically has no bearing in this matter but one must remember plaintiff wife is the custodian of both her eighty-five (85) year old mother and her sixty-two (62) year old mentally challenged brother.” [Master’s report, p. 16] (emphasis added). We find that it is clear that the master put little to no consideration of this factor in coming to his decision. We will not disturb the master’s finding in this matter. Therefore, husband’s exception number fourteen (14) is denied.

IX. MASTER’S FINDING HUSBAND PAY $8,000 PER MONTH IN PERMANENT ALIMONY AND HUSBAND PROCURE LIFE INSURANCE IN WIFE’S NAME IN THE AMOUNT OF $500,000 AS SECURITY FOR THIS AWARD. (Exceptions 16, 17, 18).

Husband contends that master erred in recommending that husband pay $8,000 per month in permanent alimony. Based on the alimony factors, the master recommended that wife be awarded permanent alimony in the amount of $8,000 per month - $7,000 representing income and an extra $1,000 representing monies that she will need to obtain appropriate health insurance once the divorce is finalized. [Master’s report, p. 17]. This amount is to be reduced by the amount of Social Security that sife receives when she applies for the same and that when she qualifies for Medicare that the extra $1,000 will be eliminated from the award that the need for health insurance has been supplanted by the government insurance. [Master’s report, p. 17.]. Furthermore, the master recommended that the husband procure life insurance in wife’s name in the amount of $500,000 as security for this award. [Master’s report, p. 17-18].

“Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay.” Perlberger v. Perlberger, 626 A.2d 1186, 1203 (Pa. Super. 1993). “[A]limony following a divorce is a secondary remedy and is available only where economic justice and the reasonable, needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill.” Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004)(emphasis in original).

In reviewing the master’s equitable distribution scheme, we have already determined that the master’s adoption of wife’s valuation of the business was not contrary to law. The master determined that Brother’s Auto Transport is a successful business and would be worth significantly less to the parties if it were liquidated and its assets sold. [Master’s report, p. 12]. Instead of forcing the parties to liquidate the business, the master awarded all of the business interests and business property to husband. [Master’s report, p. 5]. To make up for this disparity, the master recommended that wife be awarded the martial home worth $244,400 and directed husband to either satisfy the existing debt of approximately $150,000 or assume it solely, as well as directed that husband be held responsible for the taxes the Ameriprise 401(K) account worth $231,662, which equates to approximately $62,800 owed in taxes, with the disparity of the award made by “substantial” or “permanent” alimony award. [Master’s report, pp. 12-13].

It may appears that there is a significant disparity between the values of the assets awarded to the husband versus the value of the martial assets awarded to the wife, even after the martial debt accumulated by husband is subtracted. However, after subtracting the marital debt from the value of the business, husband was awarded a greater percentage of the marital property. The master sought to reimburse wife for the disparity by awarding her permanent alimony of $8,000 per month. In order to secure this award, the master recommended that husband secure a life insurance policy listing wife as the beneficiary in the amount of $500,000.

In light of the significant disparity in the equitable distribution scheme in favor of the husband, we agree with the master’s recommendation and find that the permanent alimony award of $8,000 per month, plus ensuring the security of this award with a life insurance policy for $500,000 naming wife as the beneficiary is reasonable. This is true especially considering that if husband died, wife would no longer be entitled to alimony, which was awarded as remedy for the disparity in equitable distribution, as the obligation ends upon death of the party. Upon his death, the husband’s estate would inherit the business and wife would inherit nothing. We agree that the life insurance policy here is an appropriate measure to secure this award. Therefore, we will not disturb the master’s finding on this matter and husband’s exceptions numbered sixteen (16), seventeen (17), and eighteen (18) are denied.

ORDER

And now, this 15th day of February 2013, ordered and decreed that Kathy M. Camey, plaintiff, and Donald R. Camey, defendant, are divorced from the bonds of matrimony.

The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered.

After consideration of the parties’ briefs and following argument on defendant, Donald R. Carney’s exceptions from the divorce master’s recommendations, it is hereby ordered that the husband’s exceptions are denied.