author: HERTZBERG, J.,

text:
    Pittsburgh Commercial Real Estate Inc. v. Baum Boulevard Investment LP

      C.P. of Allegheny County,
    No. GD 13-3233

      Matthew F. Dolfi, for plaintiff.

      Lawrence P. Lutz, for defendant.
    Feb. 17, 2015-
   HERTZBERG, J.,

Defendant Warner Pacific Properties, LLC (“Warner” hereinafter), a real estate investor, and plaintiff Pittsburgh Commercial Real Estate, Inc. d/b/a Colliers International (“PCRE” hereinafter), a real estate broker, entered into an exclusive leasing agency contract that contains this provision:

In the event that: (i) at any time during the term of this agreement a lease of all or any portion of the premises, upon any terms acceptable to owner, shall be made with any tenant who was procured by NAI Pittsburgh; or (ii) within one hundred and eighty (180) days after the expiration or termination of this agreement a lease of all or any portion of the premises, upon any terms acceptable to owner, shall be made with any tenant to whom the premises were submitted by NAI Pittsburgh; then, and in either such event, owner agrees to pay to NAI Pittsburgh one (1) full commission computed and payable in accordance with the schedule of commission rates and conditions (the “schedule”) on page 3 of 5 of this agreement. Within thirty (30) days following termination or expiration of this agreement, NAI Pittsburgh will provide to owner a list of prospects on which NAI Pittsburgh shall be protected for its commission. NAI Pittsurgh earns a commission on the lease of the premises during the listing period and thereafter, for a period of one hundred eighty (180) days, as provided herein by whomever made, including the owner. These same conditions will apply to those prospects who are not represented by another broker, and with whom owner enters into a lease, as a result of owner’s effort. The protection period, in this event, shall also be one hundred eighty (180) days.

9/22/2014 Non-jury trial, Exhibit 1, ¶ no. 7. This exclusive agency contract dated February 1, 2011 is referred to hereinafter as “the contract.” During the 180 days after the expiration of the contract, the University of Pittsburgh leased a portion of the premises, and PCRE sued Warner and its assignees for the scheduled commission. The non-jury trial of the dispute was held before me, and my verdict was in favor of PCRE in the amount of $338,478. Warner and its assignees appealed my verdict to the Superior Court of Pennsylvania. This opinion addresses my perceptions of each of the alleged errors set forth in Warner’s concise statement of matters complained of on appeal. See Pa. R.A. P. No. 1925(a).

Warner first contends that providing it a list of prospects within 30 days after expiration of the contract is a “condition precedent” to PCRE earning a commission. See concise statement of matters complained of on appeal (“concise statement” hereinafter), ¶ nos. 1 and 5. The contract between the parties expired on August 1, 2011 and PCRE admits the list of prospects was not provided to Warner until November 3, 2011. See concise statement, ¶ no. 11. However, under Pennsylvania law, an event mentioned in a contract will not be construed to be a “condition precedent” unless there is language in the contract expressly making that event a condition precedent. See Wineburgh v Wineburgh, 2002 PA Super 415, 816 A.2d 1105 at 1109. Hence, providing the prospects list within 30 days is a condition precedent if the contract has language conditioning Warner’s obligation to pay the commission on PCRE providing the prospect list within 30 days. However, the contract simply says that PCRE will provide the list within 30 days after expiration of the contract, but does not say that the commission otherwise is forfeited.

In proposed conclusions of law filed by Warner shortly after trial, Warner contends that courts in other states “have determined, as a matter of law, that compliance with a contractual duty to provide a prospective purchaser list is a condition precedent to receipt of a commission.” However, in each case cited by Warner, there was language in the contract expressing that the list had to be provided for the commission to be due. Since there is no such language in the contract between Warner and PCRE, my decision that timely providing the prospect list was not a condition precedent was correct.

Warner next contends I made an error by denying its motion in limine to preclude evidence that defendants entered into leases with tenants procured by PCRE. See concise statement, ¶ no. 2. Warner’s position is that the December 21, 2011 lease between the University of Pittsburgh and Baum Boulevard Investors, LP is inadmissible because PCRE did not provide the prospect list within 30 days after the contract expired. Due to my determination that providing the prospect list within 30 days of contract expiration is not a condition precedent to PCRE earning a commission, the lease entered into during the 180 day “tail” period is highly relevant to both liability and damages. Therefore, my denial of Warner’s motion in limine was correct.

Warner next contends that I violated the Pennsylvania Real Estate Licensing and Registration Act (63 P.S. §455.101 et seq., “RELRA” hereinafter) by awarding PCRE a commission under a contract with an allegedly indefinite duration. See concise statement, ¶ no. 3. While the “duration of the contract” and “a definite termination date” are required by RELRA (see 63 P.SA. §455.608a(1) and 455.604(a)(10)), the contract between PCRE and Warner spells out the duration and termination date in a clear manner. Paragraph no. 2 of the contract states that the term commences on the date of the contract and continues for 6 months, while paragraph no. 7, quoted above, adds an additional 180 days for leases with tenants to whom PCRE “submitted” the premises to during the initial 6 months. 9/22/2014 Non-jury trial Exhibit No. 1. Paragraph no. 7 even contains an extra emphasis on the fact that PCRE earns a commission during the listing period and the additional 180 day “tail” as it contains an all capital letters notice. Therefore, the award of a commission to PCRE does not violate RELRA’s requirement that a specific duration be set forth in the contract.

Warner also argues I made an error by failing to construe RELRA liberally to effect its protective purpose. See concise statement, ¶ no. 4, citing Kalins v. Commonwealth State Real Estate Commission, 92 Pa. Cmwlth. 569, 500 A.2d 200 (1985). The protection of RELRA is provided to “buyers and sellers of real estate, the most expensive item many persons ever buy or sell, from abuse by persons engaged in the business.” Id., 92 Pa. Cmwlth. 569, 577, 500 A.2d 200, 203. However, a liberal construction of RELRA to protect Warner cannot undo the clarity of the duration and termination date in the contract it signed. In any event, Warner is less needy of protection than the innocent victim of realtor abuse that the Legislature may have had in mind. Warner is a veiy sophisticated real estate investor involved in many commercial real estate transactions around the country, including approximately 11 developments involving the Aldi grocery store chain. See 9/22/2014 Non-jury trial transcript (“T.” hereinafter), pp. 116-117 and 134. Warner’s assignee did not close on the purchase of the premises until September 2, 2011, after which the likelihood of a tenant signing a lease increased. T., pp. 109 and 147-148. Out of a desire to do whatever was necessary to obtain a blue ribbon tenant, Warner intentionally allowed its building to be shown to the University of Pittsburgh by two different realtors, knowing if this prospective tenant signed a lease, both realtors would expect the commission. T., pp. 190 and 203-204. Warner then informed PCRE it was hiring the other realtor thereby removing PCRE from making additional efforts to lease the premises during the time period when leasing was more likely because Warner’s assignee had ownership. Thus, while Warner may not be owed a liberal construction of RELRA, I nevertheless gave it a liberal construction. Since the contract Warner signed was sufficiently clear to withstand scrutiny under that standard, I did not make the error that Warner alleges.

Warner next contends that I made an error by not construing the language of the contract against its drafter, PCRE. See concise statement, ¶ no. 6. A provision in a contract that is ambiguous will be construed against the drafter. See Cordero v. Potomac Ins. Co. of Illinois, 794 A.2d 897 at 900 (Pa. Super. 2002). As previously explained, the contract between PCRE and Warner was not ambiguous. Therefore, I was correct in not construing the contract against PCRE.

Warner next contends I made an error because the premises were not “submitted” to the University of Pittsburgh during the six month term of the contract. See concise statement, ¶ no. 7. The contract between PCRE and Warner does not define “submitted,” but a typical dictionary definition of submit is “to commit (something) to the consideration or judgment of another.” The American Heritage Dictionary of the English Language (4th ed. 2009). There was abundant, credible, unrebutted evidence produced during the trial that PCRE committed the premises to the consideration of the University of Pittsburgh between February 1 and August 1 of 2011. The University of Pittsburgh first learned of the availability of the premises from an email describing them that PCRE sent. See T, pp. 71, 120, 234. On March 4, 2011 PCRE responded to an email from the University of Pittsburgh asking when the premises will be available. T., pp. 137-138. PCRE and Warner then spoke over the telephone with the University Pittsburgh on March 8, 2011. T., p. 139. On April 12, 2011 PCRE invited the University of Pittsburgh to tour the premises with Warner on April 14 or 15. The University of Pittsburgh could not tour at that time because a necessary representative’s home had been hit by a tornado and she was relocating. T, pp. 139-140. On May 3, 2011 PCRE sent the University of Pittsburgh an email to arrange a viewing of the property with PCRE and a Warner representative who was coming to Pittsburgh. T, p. 141. On May 18, 2011 PCRE sent the University of Pittsburgh another email proposing a tour of the premises in the next week. T, pp. 141-142. PCRE spoke with the University of Pittsburgh over the telephone again on June 9, 2011, but the tour still could not be given because a necessary University of Pittsburgh representative was away on vacation. T., p. 142. In addition to this evidence that PCRE “submitted” or committed the premises to consideration by the University of Pittsburgh during the February 1 to August 1, 2011 term of the contract, here is an exchange between PCRE’s counsel and the University of Pittsburgh’s director of property management that occurred during the trial:

Q. So in March of 2011 he was submitting the property to you again?
A. Right....

T., p. 235. Thus, the University of Pittsburgh actually acknowledged the premises were “submitted” to it during the term of the contract. Therefore, I was correct in finding the premises were “submitted” to the University of Pittsburgh during the term of the contract.

Warner next contends I made an error by not considering that PCRE intentionally withheld the list of prospects beyond 30 days until after Warner signed a new listing agreement with a new broker. See concise statement, ¶ nos. 8 and 10. While PCRE was aware that it did not send the prospects list by August 31, 2011, its explanation for not doing so makes good business sense. PCRE felt it was on good terms with Warner and Warner was likely to sign another contract with PCRE, but delivery of a prospects list at that time would be interpreted by Warner to mean PCRE did not want another contract. See T, pp. 76 and 102. Once Warner’s unexpected decision to hire a new broker was communicated to PCRE, it promptly provided the list of prospects. Warner incorrectly assumes I failed to consider that PCRE intentionally delayed delivery of the prospects list. I, in fact, did consider it, but found it of only minor significance since Warner already knew of PCRE’s efforts to obtain the University of Pittsburgh as a tenant and that it would therefore be on any list of protected prospects provided by PCRE. Therefore, I correctly considered PCRE’s intentional delay in delivering the prospects list to have only minor significance.

Warner next contends that I made an error by failing to interpret “as provided herein” in paragraph no. 7 of the contract to refer to PCRE sending the list of prospects within 30 days. See concise statement, ¶ no. 9. The entire sentence which contains “as provided herein” is in all capital letters and reads as follows: PCRE “earns a commission on the lease of the premises during the listing period and thereafter, for a period of one hundred eighty (180) days, as provided herein by whomever made, including the owner.” Since the subject of the sentence is how PCRE earns a commission, “as provided herein” is a reference to the language that obligates Warner to pay a commission if PCRE procures a tenant during the term of the contract or if a lease is made within 180 days afterwards with a tenant to whom the premises were submitted by PCRE. As explained above, the language of the sentence about providing the list of prospects does not say this is how the commission is earned or that earning a commission is contingent upon it. Thus, I correctly determined that “as provided herein” is not a reference to providing the prospect list.

Warner next argues that I made an error because my interpretation of the 30 day prospect list provision in paragraph no. 7 of the contract makes the provision meaningless. See concise statement, ¶ no. 10. If the tenant that leased the premises during the 180 day extension period were one Warner did not know PCRE was working with, the fact that the prospect list was not timely provided would have been meaningful. Since, however, Warner was aware PCRE was working with the University of Pittsburgh, the failure to provide the list of prospects within 30 days after the term of the contract expired was not a material breach of the contract. In fact, all five of the factors that guide whether a breach of contract is material favor PCRE. See International Diamond Importers, Ltd. v. Singularity Clark, L.P., 40 A.3d 1261 at 1271 (Pa. Super. 2012) citing Restatement (Second) of Contracts §241 (1981). PCRE would otherwise be deprived of the commission it reasonably expected and could not be adequately compensated for loss of the commission. While Warner will pay two brokers full commissions, it will not forfeit the seven year lease to the University of Pittsburgh and the $5.7 million in rent owed under the lease. T. pp. 67-69. Warner showed no indication it would cure its failure to perform. Finally, Warner’s behavior does not comport with good faith and fair dealing because it knew PCRE submitted the premises to the University of Pittsburgh, then it allowed the premises to be shown to the University of Pittsburgh by both PCRE and the new realtor, but it expected to pay a commission to only the new broker. Warner also allowed PCRE to work to find a tenant before its assignee had ownership, making it challenging for PCRE (T., pp. 109 and 147-148), then afterwards when obtaining a tenant is easier, handed leasing to the new broker. Hence, my decision that PCRE’s breach of the 30 day tenant prospect list provision of the contract was not a material breach of the contract was correct.

Warner next contends that PCRE’s inconsistent claims in the complaint, PCRE’s November 3, 2012 letter containing the list of protected prospects and its testimony at trial demonstrate PCRE’s belief that compliance with the 30 day deadline for delivery of the list was a condition precedent to earning a commission. See concise statement, ¶ no. 12. First, there is no inconsistency in the claims made by PCRE in the complaint, the letter (which is trial exhibit no. 5) and the trial testimony. PCRE consistently sets forth its understanding that it should continue expending efforts to obtain a tenant after the expiration of the 6 month term of the contract. Warner’s contention that this indicates PCRE believed the 30 day deadline for delivering the protected prospect list was a condition precedent to earning a commission is perplexing. It makes no sense that PCRE would not send the list, continue to work to obtain a tenant after expiration of the 6 months but believe sending the list before the deadline was required for a commission. PCRE clearly expected a commission if its efforts produced a tenant, even if the list were delivered past the 30 day deadline. Hence, PCRE did not believe compliance with the 30 day deadline was required for it to earn a commission.

Warner next contends I made an error by awarding PCRE a commission when it did not show the University of Pittsburgh the premises until after the expiration of the contract, it showed the University of Pittsburgh the Premises a second time without Warner’s knowledge and it was not involved in the preparation of the lease between the University of Pittsburgh and Warner. See concise statement, ¶ no. 13. As set forth above, the contract language requires Warner to pay a commission if PCRE submitted the premises during the contract term to the tenant who ultimately signs a lease, and submit means to commit something to the consideration of another. I do not interpret this requirement that PCRE submit the premises to the University of Pittsburgh to mean PCRE had to take a University of Pittsburgh representative into the premises (or “show” the premises) during the term of the contract. By contacting the University of Pittsburgh multiple times about leasing the premises during the term of the contract (as described in detail above), PCRE “submitted” or committed the premises to consideration by the University of Pittsburgh. While no Pennsylvania caselaw could be located on the subject of what is required for a broker to “submit” a property to a tenant, courts in other jurisdictions have ruled that a property can be “submitted” without the broker ever showing it to the prospective tenant or purchaser. See TEC Realtors, Inc. v. D&L Fairway Property Management, L.L.C., 42 So.3d 1116 (La. App. 1 Cir. 2010) and Gardner v. Blahnik, 832 S.W. 2d 919 (Mo. App. 1992). Similarly, PCRE may not have been able to prepare the lease that the University of Pittsburgh signed, but the fact that it submitted the property to the University of Pittsburgh during the term of the contract is what entitles it to the commission. Finally, the fact that Warner did not know in advance of PCRE’s second showing of the premises to the University of Pittsburgh is not significant since PCRE submitted the premises to it during the contract term and it ultimately leased the premises. Therefore, I was correct in awarding PCRE a commission regardless of when it showed the premises or whether it prepared the lease.

Warner next contends that I made an error by finding that PCRE enlisted its best efforts as required by Paragraph no. 4 of the Contract. See concise statement, ¶ nos. 14 and 20. At trial PCRE provided credible testimony that it used its best efforts to lease the premises. Warner’s part owner, John Odell, provided no credible testimony at the trial as to PCRE failing to use its best efforts. His primary complaint was that PCRE’s second showing of the premises to the University of Pittsburgh, which occurred after the contract term expired, “was a negative showing.” X, p. 194. However, what was negative about this showing resulted from distracting and disruptive construction activity and PCRE’s inability to answer questions. Since Warner was in charge of construction and had not given PCRE any “ammunition” or information for responding to questions (T., p. 157), I did not find this second showing an appropriate way to evaluate whether PCRE enlisted its best efforts. The credible evidence being that PCRE did use its best efforts, my finding was correct.

Warner next argues I made an error by finding Baum Boulevard Investors, LP and Baum Boulevard Investors GP, LLC liable when they were not parties to the contract. See concise statement, ¶ no. 15. However, paragraph no. 13 of the contract states that it is binding on the parties’ assigns. Since Baum Boulevard Investors, LP was assigned Warner’s right to purchase the property and acted as Warner’s agent (see Complaint, ¶ no. 21, Answer and T., p. 213), Baum Boulevard Investors, LP became liable for the commission as did its general partner, Baum Boulevard Investors GP, LLC. Therefore, I was correct in finding those parties were liable.

Warner’s next contention is that I made an error by “failing to consider the parties’ statements and actions prior and subsequent to the execution of the 2011 leasing agreement in ascertaining the parties’ intentions.” Concise statement, ¶ no. 16. This contention is too vague for me to respond to in any way but to say that it is incorrect.

Warner next argues that the court erred by failing to grant Warner’s motions for a directed verdict and summary judgment. See concise statement, ¶ nos. 17 and 18. All issues raised in those motions have already been addressed above.

Warner next contends that I made an error by failing to find the contract is null and void because Warner did not acquire the property. See concise statement, ¶ no. 19. While paragraph no. 14 of the contract states that it shall become null and void if Warner does not acquire the property, Warner had always contemplated that an assignee would acquire the property. T., pp. 212-213. Paragraph no. 14 of the contract therefore must be interpreted to mean that the contract will be null and void if Warner’s assignee does not acquire the property. Since that is what happened, I was correct in not finding the contract was null and void. In any event, this issue was not raised during pre-trial proceedings or during the trial, therefore pursuant to Pa. R.C.P. No. 227.1(b), the issue is waived.

Warner next contends that I made an error “in determining that plaintiff was entitled to interest and attorneys’ fees.” Concise statement, ¶ no. 21. However, paragraph no. 12 of the contract clearly mandates 10% per annum interest, reasonable legal fees and other direct costs incurred by PCRE to collect the commission if Warner fails to pay it. Hence, my decision that PCRE was entitled to interest and attorney fees was correct.

Warner’s final contention is that I made an error by awarding attorney fees pertaining to the Crazy Mocha lease because I did not award PCRE any commission from it. At trial, counsel for Warner did not object to PCRE’s attorney invoices being admitted into evidence as long as he could comment on them in proposed findings of fact and conclusions of law. T., p. 161. Since the proposed findings of fact and conclusions of law that Warner thereafter filed did not comment on PCRE’s attorney invoices, Warner has waived its ability to claim any error in the award. In any event, PCRE’s invoices totaled $47,790.61 but my award was $44,121.11, a reduction by more than the amount that could be attributed to the Crazy Mocha Lease. Hence, there was no error in the amount of the attorney fee award.

      . Warner actually entered into the contract with “Pittsburgh Commercial Real Estate, Inc. d/b/a NAI Pittsburgh Commercial,” but shortly thereafter Pittsburgh Commercial Real Estate switched its global affiliation with NAI to one with Colliers International. Hence, in the contract the broker is referred to as “NAI” Pittsburgh.

      . The premises involved in the subject dispute are known as 5607-5625 and 5624 Baum Boulevard, City of Pittsburgh, which Warner agreed to purchase. Prior to closing on the purchase, Warner assigned its right to purchase the premises to defendant Baum Boulevard Investors, LP. Defendant Baum Boulevard Investors GP, LLC is the general partner of defendant Baum Boulevard Investors, LP. In this opinion, I refer to all three defendants as “Warner.”

      . See Glenlakes Realty Company v. Norwood, 721 So. 2d 174 at 176 (Alabama Supreme Court 1998), Love v. Gulyas, 197 P. 2d 405 at 407, 87 Cal. App. 2d 608 at 610-611 (California District Court of Appeal 1948) and Dracopoulas v. Rachal, 411 S.W. 2d 719 at 721 (Texas Supreme Court 1967).

      . Here are the five factors as set forth in section 241 of the Restatement (Second) of Contracts: a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; b) the extent to which the injured party can be adequately compensated for that part of the benefit of which he will be deprived; c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; d) the likelihood that the party failing to perform or offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; e) the extent to which the behavior of the parly failing to perform or offer to perform comports which standards of good faith and fair dealing.


source: Caselaw Access Project

author: FORD, J.,

license: Public Domain

text:
    Commonwealth v. Salgado

      C.P. of Lehigh County,
    No. CP-39-CR-1059-2014

      Jared J. Hanna, for Commonwealth.

      Michael E. Brunnabend, for defendant.
    Jan. 22, 2015-
   FORD, J.,

On October 7, 2014, a jury found defendant/appellant, Victor Salgado, guilty of escape, 18 Pa.C.S. § 5121(a), the only crime with which he was charged in the criminal information. On October 9, 2014,1 sentenced appellant to state confinement for a period of not less than fifteen months to not more than thirty-six months.

On October 20, 2014, appellant filed a post-sentence motion which I denied by order dated October 27, 2014. On November 26, 2014, appellant filed a timely notice of appeal. In response to an earlier order, appellant filed a “concise statement of matters complained on appeal” (concise statement) on December 22, 2014. Appellant raises two issues in the concise statement, both of which lack merit.

Sufficiency of the Evidence

Appellant asserts that “[t]he Commonwealth failed to meet its burden of proof to disprove the [d]efendant’s allegations of duress as a defense to the alleged criminal action and, as such, the verdict of the jury was not supported by sufficient evidence....” There was sufficient evidence to support the guilty verdict. The jury considered the defense of duress, but the jury rejected that defense.

What follows is the Superior Court’s explanation of how to review an issue on the sufficiency of the evidence to sustain a guilty verdict.

In reviewing the sufficiency of the evidence, [the Superior Court] must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offenses beyond a reasonable doubt.
The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. The facts and circumstances established by the Commonwealth neednotbe absolutely incompatible with the defendant’s innocence, but the question of any doubt is for the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The proper application of this standard requires [the Superior Court] to evaluate the entire trial record, and all evidence actually received, in the aggregate and not as fragments isolated from the totality of the evidence. Our law is ciystal clear that the trier of fact, in passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence presented. The Superior Court may not reweigh the evidence and substitute [its] judgment for that of the finder of fact. If the factfinder reasonably could have determined from the evidence adduced that all of the necessaiy elements of the crime were established, then that evidence will be deemed sufficient to support the verdict.

Commonwealth v. Hopkins, 747 A.2d 910, 913-14 (Pa. Super. 2000) (citations omitted).

The Commonwealth charged appellant with escape. The crimes code definition of escape reads: “A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.” 18 Pa.C.S. § 5121(a). The Commonwealth alleged that appellant was allowed to leave the Lehigh County Community Corrections Center (CCC), a work release facility, in order to conduct a job search and that appellant intentionally failed to return to the facility. What follows is a summary of the evidence of escape and appellant’s claim of duress.

The parties presented the jury with a stipulation (Exhibit C-9) that appellant was lawfully incarcerated at the CCC on the date of the alleged escape. Timothy Carver, the warden of the CCC, testified that appellant was an inmate at CCC in January and February of 2014. He authenticated Commonwealth Exhibit C-8, appellant’s CCC time card. According to the time card for February 18, 2014, appellant permissibly left the work release facility at 6:30 a.m. to engage in a job search. According to the warden, appellant had to return to CCC by no later than 12:30 p.m. that day. However, there was no return time recorded on the time card. Warden Carver confirmed that appellant failed to return to the facility.

Clifford Knappenberger, the internal affairs director for the Lehigh County Department of Corrections, testified that he was contacted by Warden Carver after appellant failed to return to CCC. Knappenberger then prepared a criminal complaint and arrest warrant for appellant which were signed by district judge Karen Devine.

The Commonwealth’s final witness was Matthew Joseph, a deputy in the Lehigh County sheriff’s department. Deputy Joseph testified that he received the arrest warrant for appellant. On March 3, 2014, deputy Joseph received a tip from a Lehigh County Jail official that appellant was at a blood clinic in Allentown. Deputy Joseph went to the clinic and took with him a photograph of the appellant. Appellant was not at the blood clinic. The deputy then began to search the area around the clinic and located appellant in the 1300 block of Wayne Street. Deputy Joseph approached appellant and asked for identification. Appellant gave it and was cooperative. He was taken into custody without incident.

Appellant took the stand in his own defense at trial. He did not contest that he consciously failed to return to CCC. However, he claimed that other inmates at the CCC were threatening violence against him so he left the facility to ensure his safety.

Appellant explained he was an inmate at the main Lehigh County Jail prior to being placed in CCC. He claimed that he was assaulted by several inmates at the jail on January 9,2014. Appellant explained that he wrote to jail staff and expressed a desire to file a private criminal complaint against his attackers. On January 16, 2014, director Knappenberger responded to appellant’s inquiry and provided him with the forms and directions needed to file a private criminal complaint. Appellant admitted that he never filed the complaint because he did not know the names of his attackers.

Appellant testified that he was transferred to CCC on January 28, 2014. Appellant stated that, on February 11, 2014, he was confronted by a group of inmates at CCC. Two in the group had box cutters. Some in the group told appellant to leave CCC or he would be attacked. Immediately after the confrontation, appellant filled out an unsigned request form about the threat and placed it under the door of his case manager. He also got a copy of the form to sergeant Douglas Moyer of CCC. Appellant did not reveal to his case manager or sergeant Moyer that he filled out the information on the form. The next day, according to appellant, he saw sergeant Moyer searching the lockers of the inmates who had confronted him. Appellant approached Moyer and told him to search inside a jacket in one of the lockers. Sergeant Moyer did so and he found box cutters there.

Appellant testified that, on February 18, 2014, he was scheduled to leave CCC for a job search. At 4:45 a.m. prior to his leaving CCC, appellant said he was confronted by two CCC inmates in a bathroom. The inmates told appellant that they knew that he was the person who had complained to CCC staff about the box cutters. According to appellant, they told him to leave the CCC or he would be attacked. Appellant testified that one of the inmates then punched him giving him a black eye. Appellant left CCC as scheduled without complaining to staff about the altercation. Appellant told the jury that he went to his sister’s residence and decided not to return to CCC because he feared that his life was in danger.

The issue of whether appellant acted under duress was given to the jury for its consideration. Duress is a defense to escape if all of the following elements are present: (1) the defendant was confronted with an immediate threat of death or serious bodily injury; (2) the defendant either had no time to complain to authorities or had a history of making futile complaints; (3) the defendant did not use force against prison personnel or others during the escape; and (4) the defendant returned to official detention as soon as possible after attaining a position of safety from the immediate threat of harm. Commonwealth v. Brothers, 409 Pa. Super. 202, 208, 597 A.2d 1164, 1167 (1991) (citation omitted). See also 18 Pa.C.S. § 309(a) by which the common law defense of duress is recognized in our crimes code. As I explained to the jury, the Commonwealth bore the burden of disproving appellant’s duress defense beyond a reasonable doubt. See Commonwealth v. Kaminski, 349 Pa. Super. 78, 88, 502 A.2d 1281, 1286 (1985); and Commonwealth v. Brown, 314 Pa. Super. 311, 321, 460 A.2d 1155, 1160 (1983).

In light of the evidence and the proper instructions on duress that I gave the jury, it is understandable that the jury rejected appellant’s duress contentions. Appellant testified that he complained to CCC staff when he was threatened on February 11, 2014, and that the staff took steps to ensure his safety. Therefore, there was no evidence of a “history of futile complaints” to CCC staff. Further, when appellant was threatened on February 18, 2014, appellant could have complained to CCC staff. Instead, he opted to leave the facility permanently. After appellant left CCC and gained a position of safety, he did not surrender to law enforcement officials. This is revealing of appellant’s intentions because, in the past, the CCC staff had taken steps to assure a safe environment for appellant. At trial, appellant admitted that he had no intention of returning to official detention. Based on these undisputed points, there was sufficient evidence by which the jury could reasonably conclude, and obviously did conclude, that the Commonwealth disproved duress beyond a reasonable doubt. Further, there was sufficient evidence, which was undisputed, that appellant intentionally left official detention at CCC and that he made the decision not to return to that facility after his authority to be away ended. In other words, the record justifies the jury’s guilty verdict on the escape charge.

Weight of the Evidence

Appellant contends that “[t]he verdict of the jury was against the weight of the evidence based upon the defendant’s allegation of duress.” This contention is baseless.

“The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.” Commonwealth v. Begley, 566 Pa. 239, 263, 780 A.2d 605, 619 (2001) (citation omitted). The jury’s verdict may only be reversed “if it is so contraiy to the evidence as to shock one’s sense of justice.” Id. (citation omitted). Where the evidence is conflicting, the credibility of the witnesses is solely for the jury and if its finding is supported by the record, the trial court’s denial of a motion for a new trial will not be disturbed on appeal. Commonwealth v. Hayes, 205 Pa. Super. 338, 344, 209 A.2d 38, 41 (1965).

All of the evidence in support of appellant’s duress claim came from the testimony of appellant. The jury was free to disregard all of this evidence as unreliable. Appellant’s duress claim failed even if the jury accepted all of appellant’s testimony as credible. There was nothing about the jury’s verdict which could shock a reasonable person’s sense of justice. The challenge to the weight of the evidence has no merit.

For all of these reasons, there is no merit to the issues raised in this appeal. The appeal should be denied and the judgment of sentence affirmed.


author: HODGE, J.,

text:
    Commonwealth v. Latham

      C.P. of Lawrence County,
    No. 911 of 2009, CR

      Gregory Simantic, for Commonwealth.

      Peter E. Horne, for defendant.
    Feb. 2, 2015-
   HODGE, J.,

Before the court for disposition is a petition for post conviction relief filed on behalf of the defendant, Darnell D. Latham. Defendant contends that he is eligible for relief because he received ineffective assistance of counsel which so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Defendant further contends that he received a sentence in excess of the state mandatory maximum guidelines, and the defendant is specifically requesting this court to resentence him on the convictions incurred at the above captioned case number.

On March 26, 2008, Douglas C. Brink, an agent with the Pennsylvania Bureau of Narcotics Investigation, supervised a controlled purchase of crack cocaine involving Mr. Jamal Hill, a confidential informant, and Rashada Booker. Defendant Latham previously provided the informant with a telephone number at which the informant could contact defendant Latham to purchase drugs. Under the supervision of agent Brink, the informant called defendant Latham to arrange for a sale of one ounce of crack cocaine in exchange for $800.00. Defendant Latham agreed to meet the informant in the parking lot outside of Tic-Toc (a locally known convenience store) at 601 East Washington Street in New Castle, and the informant was searched prior to the exchange taking place by agent Brink. Immediately after the informant arrived at 601 East Washington Street, a silver sedan pulled into the parking lot driven by an individual other than the defendant. The informant knowing the driver as the defendant’s girlfriend, Rashada Booker, got in the vehicle, spoke briefly with Ms. Booker and exited the vehicle. The informant later testified to having purchased one ounce of cocaine from Ms. Booker while he was in the silver sedan. At trial, the Commonwealth established that defendant Latham arranged for Ms. Booker to meet the informant at the aforementioned location, and for Ms. Booker to sell the informant the drugs. Following this transaction, the informant was again searched, and which time he provided agent Brinks with the once ounce of crack cocaine purchased from Ms. Booker.

On May 26, 2009, the defendant was charged with possession with intent to deliver a controlled substance, drug, device or cosmetic (35 P.S. 780-113(a) (30)), one count of conspiracy to deliver a controlled substance (18 Pa.C.S.A. 903 (a)/35 P.S. 780-113 (a)(30)), and one count of criminal use of a communication facility (18 Pa.C.S.A. 7513(a)). The case proceeded to trial, and the defendant was ultimately convicted of all charges. Defendant was sentenced on April 19, 2011 for the aforementioned convictions. Defendant subsequently appealed his convictions to the Superior Court of Pennsylvania. On November 13,2012, the Superior Court issued a memorandum opinion sustaining the defendant’s convictions, but directing this court to conduct a resentencing hearing to determine whether the defendant was eligible for the Recidivism Risk Reduction Incentive (“RRRI”) program. See Commonwealth v. Latham, 1417 WDA2011, p. 1. (Pa. Super. 2012).

On August 13, 2013, defendant appeared for a resentencing hearing consistent with the remanded order and corresponding directive from the Pennsylvania Superior Court. Following this hearing, defendant was sentence to a term of incarceration of not less than 48 months nor more than 120 months for convictions sustained pursuant to the controlled substance, drug and cosmetic act. Defendant was sentenced to a term of incarceration of not less than 12 months nor more than 24 months for his conviction of criminal use of a communication facility, and a term of not less than 30 months nor more than 60 months for his conviction of conspiracy to deliver a controlled dubstance. The sentences imposed were issued concurrent to each other. Defendant additionally received credit for 1025 days already served. The defendant’s new sentence included a provision setting forth this court’s finding that the defendant was ineligible to participate in the RRRI program because the defendant was previously convicted of recklessly endangering another person, in violation of 18 Pa.C.S.A. §2705, and firearms not to be carried without license, in violation of 18 Pa.C.S.A. §6106.

On June 17, 2014, defendant filed the instant petition for post-conviction relief, wherein defendant claimed that he received ineffective assistance of counsel and that the sentences imposed exceeded the maximum guidelines established by statute. A hearing on defendant’s petition for post-conviction relief was held before this court on December 4, 2014, at which time counsel agreed that the issues contained in defendant’s petition were purely legal in nature and limited to the legality of the sentence imposed. Thus, defendant did not pursue his. claim for ineffectiveness of counsel. The court directed counsel to brief the issue of whether defendant is entitled to a new sentencing hearing, which briefs have since been submitted to the court for consideration. Therefore, defendant’s petition for post-conviction relief is properly before the court for consideration.

To be eligible for relief under the Commonwealth of Pennsylvania’s Post-Conviction Relief Act (hereinafter, “PCRA”), the petitioner must satisfy four general requirements. First, the petitioner must have been convicted of a crime under Pennsylvania law and subsequently sentenced to either incarceration or probation. 42 Pa.C.S.A. §9543(a)(l). Second, the conviction and sentence must have resulted from at least one of the errors and/or violations elucidated in §9543 (a)(2) of the PCRA, which includes the imposition of sentence greater than the lawful maximum. Third, the allegation of error must have been previously litigated or waived by the petitioner. 42 Pa.C.S.A. §9543(a)(3). Finally, the petitioner must demonstrate that the failure to litigate the claim could not have been “the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S.A. §9543(a)(4).

As previously stated, counsel agreed to narrow the issue pending before the court to whether the sentence, currently being served by the defendant, exceeds the lawful maximum pursuant to 18 Pa.C.S.A. §7508. The Court looks to the case of Commonwealth v. Cardwell, —A.3d —, 2014 WL 6656644 (Pa. Super. 2014), as it is dispositive of defendant’s petition. In Cardwell, the defendant was convicted of possession with intent to deliver and possession of a controlled substance. Id. at 1. The defendant was sentence to a three-year mandatory minimum sentence for possession with intent to deliver. Id. The defendant received an enhanced minimum sentence on the basis of the weight of the drugs involved, pursuant to 18 Pa.C.S.A. §7508(a)(4)(i). Id. Defendant appealed his sentence and challenged the mandatory minimum sentencing imposed under the statute. Id.

Upon review of Section 7508, the Cardwell Court determined that any element considered by the trial court in fashioning a sentencing order, must first be evaluated by the finder of fact as an extra element of the aggravated offense. Id. at 3. Notwithstanding the fact that the parties stipulated to the amount of drugs in question, Section 7508 cannot be used to enhance a defendant’s minimum sentence without first a specific finding by the trier of fact. Id.

Section 7508 provides that:

Drug trafficking sentencing and penalties (a) General rule. —Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(i) when the aggregate weight of the compound or mixture containing the substance involved is at least five grams and less than ten grams; three years in prison and a fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: five years in prison and $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;
(b) Proof of sentencing. — Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

18 Pa.C.S.A. § 7508.

In the instant case, and comparable to the facts of Cardwell, the Commonwealth and the defendant stipulated to the total weight of the drug involved being 26.1 grams. Consequently, this court previously determined that the Commonwealth did prove this element beyond a reasonable doubt and fashioned a sentencing order accordingly. However, in view of the Superior Court’s findings in Cardwell, the court finds the sentence enhancement to be erroneous and finds that defendant is therefore entitled to the relief requested.

ORDER OF COURT

And now, this 2nd day of February, 2015, the matter being before the court for a hearing on defendant’s petition for post-conviction relief, with deputy attorney general Gregory Simantic, Esquire, appearing on behalf of the Commonwealth of Pennsylvania and with the defendant, Darnell D. Latham, appearing and being represented by Peter E. Home, Esquire, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. Defendant’s petition for post conviction relief is granted.

2. Defendant shall be re-sentenced on the 17th day of March, 2015 at 8:30 a.m. in Courtroom #4 of the Lawrence County Government Center.

3. The clerk of courts is directed to serve a copy of this order of court and attachment(s) upon the deputy attorney general Gregory Simantic, Esquire, and counsel for the defendant, Peter E. Home, Esquire.

      . 35 P.S. §780-113.

      . 18 Pa. C.S.A. §7513(a).

      . 18 Pa. C.S.A. §903(a)/35 P.S. §780-113(a)(30).


author: CHARLES, J.,

text:
    Smith v. Smith

      C.P. of Lebanon County,
    No. 2013-20491

      M. Jannifer Weiss, for plaintiff.

      Christopher C. Smith, pro se defendant.
    Dec. 19, 2014-
   CHARLES, J.,

1. Alimony pendente lite began as a precept of Pennsylvania Common Law, not then discharged his lawyer and filed a as a matter of right. It was addressed to the sound discretion of the court, and the court could refuse it where cause against it was shown. The controlling element in granting an allowance was the wife’s necessity for it, the husband’s ability to pay and all the circumstances of the particular case. The destitute condition of the wife was a necessary prerequisite to an order for alimony pendent lite. Her want of pecuniary ability had to be shown affirmatively before an order was made. Further, the husband’s ability to pay had to be shown and not presumed, and if the husband’s means were limited, the amount allowed was necessarily limited.

2. Section 3702 of the divorce code states that in proper cases, upon petition, the court may allow a spouse reasonable alimony pendente lite. The definitional section of the divorce code defines alimony pendente lite as an order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding. However, the divorce code does not specify when or in what amount alimony pendente lite should be awarded.

3. Until the advent of Pennsylvania’s Support Guidelines, alimony pendente lite was determined at the discretion of trial courts on a case-by-case basis.

4. Pennsylvania adopted child support guidelines in 1981. These guidelines were expanded to include alimony pendente lite in 1994. Rule 1920.31 requires that alimony pendente lite ordered by a court must be paid through the local domestic relations office.

5. Rule 1910.16(c) provides that alimony pendente lite and spousal support cannot be enforced simultaneously. Rule 1910.16-1 (c) requires a court to consider the duration of the marriage in determining alimony pendente lite. Rule 1910.16-1(b) states that the amount of support (child support, spousal support or alimony pendente lite) to be awarded shall be determined in accordance with the support guidelines.

6. In spite of these new alimony pendente lite rules — or perhaps because of them — the official comment to the support guidelines was amended to state that nothing in this Rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which were established by case law.

7. Our appellate courts have always recognized that alimony pendente lite and spousal support differ in character. Spousal support has always been predicated upon the existence of a marital relationship and is designed to enable a dependent spouse to pay all of his/her necessary expenses. In contrast, alimony pendente lite has historically been designed to enable a dependent spouse to prosecute or defend a divorce proceeding.

8. The court here placed significant emphasis on the official comment added to the support guidelines at the time the alimony pendente lite provisions were added to the guidelines. This official comment states that nothing in this Rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law.

9. Based upon its analysis of the case law, and upon the court’s belief that a distinction between alimony pendente lite and spousal support continues to exist in a post-guideline environment, it concluded that a plaintiff seeking alimony pendente lite must establish some financial need in order to obtain alimony pendente lite. However, the court stated that it was not necessarily declaring that the bar establishing financial need must be high or that financial need can be automatically presumed simply because one spouse earns more than another. However, the court also noted that financial need cannot necessarily be foreclosed simply because the spouse with the lower income cuts back expenses in order to make his/ her ends meet.

10. The standard of living developed by the parties during the marriage, the degree to which either spouse has independent assets available, the extent to which either party receives help in paying expenses, and the nature of the income discrepancy between the parties are all factors that can and must be considered in assessing financial need. In short, a determination of financial need is of necessity a moving target that must be evaluated based upon the unique facts and circumstances of each particular case.

11. Once a threshold determination of financial need is made, then the support guideline calculations must be undertaken under Pa.R.C.P. 1910.16-1(b), the rule used to determine spousal support. This formula necessarily considers the incomes of each party and whether any child support is also owed.

12. Applying the spousal support formula to an alimony pendente lite case does not totally end the analysis. The Pennsylvania Supreme Court addressed a support guideline question by concluding that where the incomes of the parties differ significantly, it believed that it is an abuse of discretion for the trial court to fail to consider whether deviating from the support guidelines is appropriate. Rule 1910.16-5(b) of the guidelines sets forth numerous factors that a court must consider in determining whether to deviate from the guideline formula amount.

13. Sifting through everything outlined above, the court held that the following analytical paradigm must be employed whenever a spouse seeks alimony pendente lite. Is a divorce action pending? Because alimony pendente lite is ancillary to divorce, no award can be ordered in the absence of a pending divorce action. Does the dependent spouse have a financial need for alimony pendente lite? The question of financial need must of necessity be fact-specific and based upon the exigencies of each unique case. What do the spousal support guidelines require based upon the income of both parties? Is a deviation from the spousal support guideline amount appropriate based upon the facts set forth in Pa.RC.R 1910.16-5(b)?

14. The court agreed with the special master that wife had established financial need for alimony pendente lite and that she had a need for additional finances in order to raise her lifestyle to a level closer to what she enjoyed pre-separation. Therefore, the court applied the rules governing the Pennsylvania Support Guidelines to this case.

15. Since neither Husband nor wife had challenged the special master’s determination of income or her calculation of alimony pendente lite using the spousal support guidelines, the court adopted the calculation of the domestic relations officer that the guidelines require that husband pay $1,178.00 per month to wife and issued an order to accomplish this.

16. In absence of testimony and evidence from husband relative to his financial situation, the court was unable to deviate from the formula calculation of alimony pendente lite required by the Pennsylvania Spousal Support Guidelines. Accordingly, no deviation from the guidelines was directed.

This case focuses upon the interplay between financial need and Alimony Pendente Lite (APL). Susan Smith (hereafter “wife”) argues that proof of financial need is no longer a predicate to an award of APL. In contrast, Christopher Smith (hereafter “husband”) argues that a threshold showing of financial need is necessary before any APL can be awarded. Our research has revealed legal precedent that supports the arguments proffered by both sides. However, because we conclude that APL cannot statutorily or historically be equated with spousal support, and because we therefore conclude that something other than the marital relationship is needed to support APL, we hold today that a spouse seeking APL must establish at least some threshold proof of financial need. However, we also hold that the definition of “financial need” must of necessity be fluid and determined based upon the unique circumstances presented by each factual dispute. As we will outline in more detail below, we hold in this case that wife has in fact established that she has a need for APL, and we will therefore affirm the decision of the special master to require that husband pay APL to wife.

I. FACTS

Husband and wife were married on September 15,1984. The relationship obviously had its ups and downs. Even before separation, wife filed a complaint for divorce on June 25, 2013. Included in wife’s complaint was a request for APL. However, wife did not pursue her claim for APL until June of 2014. At that time, wife left the marital residence to move into an apartment. (Special master report at pg. 2). Attorney Loreen Burkett was appointed as special master to hear only wife’s claim for APL.

A hearing regarding APL was conducted before the special master on August 26, 2014. At that hearing, both parties described a pre-separation lifestyle that could be classified as upper middle class. Moreover, both parties were able to pay the cost of their son’s college education. Wife aptly said that after college education was paid: “I did not have any worries financially.” (N.T. 14).

The parties’ relatively good lifestyle was based upon the fact that each has enjoyed a relatively good job. Husband has been employed by the Pennsylvania Higher Education Assistance Agency. Although husband did not provide 2014 income information, wife produced a 2013 W-2 wage statement that revealed wages of $105,207.09 and a 2012 W-2 that reflected earnings of $102,172.33. Therefore, she evaluated husband’s 2013 annual income and calculated husband’s monthly income at $8,750.00. Wife has been employed as an office manager at Vision Works, Inc. She is salaried at $46,000.00 per year. However, she also receives bonuses. Wife did produce evidence of her income during 2014. Based upon wife’s 2014 income documentation, the special master determined her gross monthly income to be $4,429.16.

Following separation, husband remained in the martial home. Wife obtained an apartment at the Rockledge Apartment Complex near Palmyra. She testified that her standard of living has declined since separation. (N.T. 15). She specifically testified that she has cut back on expenses and can no longer afford a vacation or new clothing. She summarized her situation by stating: “I do not buy anything that I do not need.” (N.T. 16). Moreover, she furnished her apartment by purchasing used items at a local thrift store. (N.T. 17-18). On cross examination, wife explained that while she is able to pay her bills, her expenses are now based upon a lifestyle that is “substantially cut down” from that which she enjoyed during the marriage. (N.T. 38).

Stunningly, husband declined to testify or present documentary evidence at the APL hearing. Instead, he rested upon his cross-examination of wife and his argument that she had no need for APL. Specifically, husband argued that wife possessed $35,000.00 in a checking and savings account and that she should be required to draw down those amounts before collecting APL. Husband focuses on wife’s current expenses and argues: “She has the ability to afford all of her living expenses since moving out of the former marital residence...” (Husband’s Brief at 6).

Without conducting any extensive legal analysis, the special master accepted husband’s premise that wife was required to prove financial need. However, the special master determined that wife did have financial need for APL. The special master stated:

Husband argues that, even though his income may be substantially higher than wife’s, she has not demonstrated an actual need for an award of alimony pendente lite. He indicates that wife has been able to meet all of her living expenses since moving out and has been able to pay her legal fees. However, wife testified that she has only been out of the marital residence for two months and has taken measures to cut back on expenditures, not knowing what her actual income will be. She stated that the parties are only at the beginning of their legal expenses and they are estimated, and that she will incur more as time goes on. Wife indicated she does not have access to many of the marital funds. Wife has demonstrated actual need for an award of alimony pendente lite.

(Special Master’s Report at 3).

Based upon the foregoing, the special master awarded APL to wife based entirely upon the Pennsylvania Spousal Support Guidelines. The calculations employed by the special master are set forth below:

Wife Husband
Total gross income per month $4,429 $8,750
Less Deductions $1,071 2,446
Net Income $3,358 $6,304
Difference $2,946
Percent by which to multiply 40
Amount of Monthly Alimony Pendente Lite Obligation $1,178

Husband filed timely exceptions to the decision of the special master. The primary focus of husband’s exceptions was that wife has not established need for APL. Husband argued: “The learned master erred and/ or committed an abuse of discretion by adhering to the spousal support guidelines in determining an award of APL, as the resulting sum is far more than wife needs to maintain herself throughout the divorce proceedings.” Secondarily, husband also challenged the special master’s decision that he should be required to pay a portion of wife’s unreimbursed medical expenses.

Following the filing of exceptions, husband asked this court to stay his payment of APL during the pendency of the underlying substantive exceptions. By a court order dated October 16, 2014, we denied husband’s request to stay payment of APL. Husband then discharged his lawyer and filed a pro se response by which he reiterated his argument that wife should not receive anything because she has no financial need.

As we began our evaluation of husband’s exceptions to APL, we quickly realized the underlying legal precepts governing APL are more complicated than the parties had realized or we had anticipated. We will therefore begin our analysis by outlining the history of APL in Pennsylvania and how it has evolved to closely — but not completely — parallel spousal support. After analyzing the law, we will apply the facts of this case in order to reach our decision.

II. DISCUSSION

A. Legal Analysis

APL began as a precept of Pennsylvania common law. See, Appeal of Groves, 1871 WL11028, 68 Pa. 143 (1871). Its historical purpose was summarized in Purman v. Purman, 7 Pa. D & C 755 (1925):

Alimony pendente lite is not a matter of right, but it is addressed at the sound discretion of the court, and the court may refuse it where cause against it is shown.
The controlling element in granting an allowance in any case is the wife’s necessity for it, the husband’s ability to pay and all the circumstances of the particular case.
The destitute condition of the wife is a necessary prerequisite to an order for alimony pendente lite. Her want of pecuniary ability must be shown affirmatively before an order will be made.
The husband’s ability to pay must be shown and not presumed, and if the husband’s means are limited, the amount allowed will necessarily be limited.

Id. at 758. In 1929, the right to APL was codified by statute. See, 23 P.S. 46 (May 2, 1929) (repealed). However, the amount of APL was always considered to be “a matter of judicial discretion.” Meinel v. Meinel, 167 A. 385 (Pa. Super. 1933).

When Pennsylvania’s Divorce Code was created in 1990, APL was incorporated. Section 3702 of the Divorce Code States: “In proper cases, upon petition, the court may allow a spouse reasonable alimony pendente lite...” 23 Pa.C.S.A. § 3702. The definitional section of the divorce code defines APL as “An order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.” 23 Pa.C.S.A. § 3103. However, the divorce code does not specify when or in what amount APL should be awarded.

Until the advent of Pennsylvania’s Support Guidelines, APL was determined at the discretion of trial courts on a case-by-case basis. From a broad perspective, our appellate courts recognized a distinct difference between spousal support and APL: the former arose out of the marital relationship itself and was designed to provide financial maintenance and support for the dependent spouse, while the latter was considered ancillary to a divorce action and was intended to equalize the ability of each spouse to prosecute or defend the divorce action. Remick v. Remick, 456 A.2d 163 (Pa. Super. 1983). The amount of APL was determined based upon factors identical to those contained in the divorce code regarding alimony. See, e.g. Dyer v. Dyer, 536 A.2d 453 (Pa. Super. 1988) and McNulty v. McNulty, 500 A.2d 876 (Pa. Super. 1985). See also, 23 Pa.C.S.A. § 3701(b) (repealed).

Pennsylvania adopted child support guidelines in 1981. These guidelines were expanded to include APL in 1994. The following provisions of the Support Guidelines now address APL:

Rule 1920.31 requires that APL ordered by a court must be paid through the local domestic relations office.
Rule 1910.16-1(c) provides that APL and spousal support cannot be enforced simultaneously.
Rule 1910.16-1 (c) requires a court to consider the duration of the marriage in determining APL.
Rule 1910.16-1(b) states: “The amount of support (child support, spousal support or alimony pendente lite) to be awarded...shall be determined in accordance with the support guidelines...”

In spite of these new APL rules — or perhaps because of them — the official comment to the support guidelines was amended to state: “Nothing in this Rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law.” Pa.R.C.P. 1910.1 (explanatory comment — March 30, 1994).

Since 1994, mixed messages have been articulated by courts which were called to rule upon APL issues. In Calibeo v. Calibeo, 663 A.2d 184 (Pa. Super. 1995), the Pennsylvania Superior Court acknowledged the APL changes created by the support guidelines and stated: “Since [the support guideline amendment] requires that alimony pendente lite be determined pursuant to the support guidelines, the difference between alimony pendente lite and spousal support, no matter if it is part of the divorce action or filed separately, is negligible...” Id. at 185. Moreover, our Supreme Court has applied the support guidelines and directed that finders of fact “calculate a spousal support or APL award according to the formula set forth in Rule 1910.16-4...” Mascaro v. Mascaro, 803 A.2d 1186, 1191 (Pa. 2002).

On the other hand, several Pennsylvania Superior Court cases have implied that financial need is a precondition of awarding APL. In Schenk v. Schenk, 880 A.2d 633 (Pa. Super. 2005), a trial court refused to adhere to the support guidelines because an obligee-wife lived with a boyfriend “who paid all of her bills.” In affirming the trial court’s decision, the Superior Court stated:

As for the court’s holding that wife is not entitled to APL for the time when she lived with boyfriend, we find no abuse of discretion. First, we note our agreement with husband that the court’s rationale in denying wife APL for the time she lived with her boyfriend appears not to be based simply upon her cohabitation, but rather upon her failure to prove her needs in defending herself in the divorce action...Alimony pendente lite is designed to be temporary and is available to those who demonstrate the need for maintenance and professional services during the pendency of the proceedings. Wife failed to demonstrate her need. Accordingly, we find no abuse of the court’s discretion.

Id. at 646, quoting in part Jayne v. Jayne, 663 A.2d 169, 176 (Pa. Super. 1995). See also Childress v. Bogosian, 12 A.3d 448 (Pa. Super. 2011) (“APL focuses upon the ability of the individual who receives the APL during the course of the litigation to defend her/himself, arid the only issue is whether the amount is reasonable for the purpose...” Id. at 463).

Several common pleas decisions have evaluated the question of whether a financial need litmus test should be imposed as a predicate to an award of APL. Two courts reached the conclusion that it should not. In Frerotte v. Frerotte, 74 Pa. D & C 4th 298 (Fayette Co. 2005), the court held that a deviation from the guidelines in an APL case cannot occur unless the court makes a determination that the guidelines themselves would permit deviation. Even more explicit is an en banc decision by the Lehigh County Court in Prud’homme v. Prud’homme, 48 Pa. D & C 4th 182 (2000). In setting forth a comprehensive history of Pennsylvania law pertaining to spousal support and APL, the court recognized that even under common law principles, both APL and child support “required the court to determine the recipient’s needs based on the parties’ standard of living while they lived together or their station in life, and the payor’s ability to pay considering his/her income, property and earning capacity.” The court stated:

[SJpousal support and APL were always based on similar financial criteria, though the procedures and duration differed. As a result of the promulgation of new support rules by the Pennsylvania Supreme Court, and the interpretation of these rules by the Pennsylvania Supreme Court and the Pennsylvania Superior Court, many of the historical distinctions between spousal support and APL have been eliminated. APL like spousal support shall be determined in accordance with the uniform support guidelines. APL and spousal support shall not be in effect simultaneously. APL claimants, like spousal support claimants, need not prepare and file detailed income and expense statements. Upon the entry of a decree in divorce, if economic claims are still pending, a spousal support order shall be deemed an order for APL.

Id. at 192. Essentially, the Prud’homme court determined that “APL is merely a type of support awarded in divorce cases.” Id. at 191. Having reached this conclusion, the court in Prud’homme rejected the obligor’s effort to create a financial need litmus test. The court stated:

Husband’s argument is contrary to both the letter and spirit of the uniform support guidelines. First, from a linguistic standpoint, Rule 1910.16-1 states very specifically that APL, like spousal support and child support, is to be determined in accordance with the guidelines. If the guidelines establish APL... and there is no basis for a deviation, then APL is to be awarded in that amount, so long as there is a divorce action being pursued. There is no requirement under the support rules for a separate demonstration of financial need... Husband’s contention, if adopted, would return us to the pre-guideline days when subjective judgments were made as to “need.” This would reintroduce uncertainty into a process that is intended to be uniform and predictable.

Id at 193, 194.

In contrast to Frerotte and Prud’homme, the Somerset County Court of Common Pleas determined that a preliminary finding of financial need must be established before the spousal support guidelines are applied. Moore v. Moore, 56 Som.L.J. 110 (1999). The court in Moore emphasized that APL was founded on a different historical precept than was spousal support. Because APL was intended from the beginning to enable a spouse to prosecute or defend a divorce action, a finding of need by the obligee spouse necessary follows in order to accomplish the purpose of APL.

To date, Pennsylvania’s highest court has not yet had the opportunity to rule upon the question of whether financial need is a predicate to recovering APL. Moreover, we are aware of no Superior Court precedent that has either specifically mandated or rejected a request to employ the “financial need” litmus test prior to awarding APL.

We were particularly impressed with the scholarly approach undertaken by the Lehigh County Court on the precise issue that is now before us. Nevertheless, we depart company with our colleagues in Lehigh County. As we readPrud’homme, we perceive that the Lehigh County Court has essentially equated APL with spousal support except in the very unusual situation where separated spouses are involved in litigation that does not include divorce proceedings. We simply cannot concur that our Supreme Court intended to transform APL into “merely a type of support awarded in divorce cases.”

Our appellate courts have always recognized that APL and spousal support “differ in character.” Belshy v. Belshy, 175 A.2d 348 (Pa. Super. 1962); Hanson v. Hanson, 110 A.2d 750 (Pa. Super. 1955); Commonwealth ex rel Lipschultz v. Lipschultz, 117 A.2d 793 (Pa. Super. 1955). Spousal support has always been predicated upon the existence of a marital relationship and is designed to enable a dependent spouse to pay all of his/her necessary expenses. See, e.g. Commonwealth ex rel Werline v. Werline, 421 A.2d 1080 (Pa. Super. 1980). In contrast, alimony pendente lite has historically been designed to enable a dependent spouse to prosecute or defend a divorce proceeding. Price v. Price, 614 A.2d 1386 (Pa. Super. 1992). To our knowledge, no statute, rule of court or appellate decision has ever equated APL and spousal support as did Prud’homme.

We place significant emphasis on the official comment to the support guidelines amendments that incorporated APL. That comment states: “Nothing in this Rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law. ” Why would this language have been included if the Supreme Court intended to morph APL into “mere spousal support in a divorce case?”

Based upon the analysis of Schenk v. Schenk, supra, and upon our belief that a distinction between APL and spousal support continues to exist in a post-guideline environment, we conclude today that a plaintiff seeking APL must establish some financial need in order to obtain APL. However, we do not necessarily declare that the bar establishing financial need must be high. Financial need cannot be automatically presumed simply because one spouse earns more than another. However, financial need cannot be always foreclosed simply because a spouse with lower income cuts back expenses in order to make his/her ends meet. The standard of living developed by the parties during the marriage, the degree to which either spouse has independent assets available, the extent to which either party receives help in paying expenses, and the nature of the income discrepancy between the parties are all factors that can and must be considered in assessing financial need. In short, a determination of financial need is of necessity a moving target that must be evaluated based upon the unique facts and circumstances of each particular case.

Once a threshold determination of financial need is made, then the support guideline calculations must be undertaken. Under Pa.R.C.P. 1910.16-l(b), a formula identical to spousal support must be employed. This formula necessarily considers the incomes of each party and whether any child support is also owed.

Applying the spousal support formula to an APL case does not totally end the analysis. In Colonna v. Colonna, 855 A.2d 648 (Pa. 2004), the Pennsylvania Supreme Court addressed a support guideline question by concluding: “[W]here the incomes of the parties differ significantly, we believe that it is an abuse of discretion for the trial court to fail to consider whether deviating from the support guidelines is appropriate...” Id. at 652. Rule 1910.16-5(b) of the guidelines sets forth numerous factors that a court must consider in determining whether to deviate from the guideline formula amount. Those factors are:

(1) Unusual needs and unusual fixed obligations.
(2) The support obligations of the parties.
(3) Other income in the household.
(4) Ages of children.
(5) Assets of parties.
(6) Medical expenses not covered by insurance.
(7) Standard of living of the parties.
(8) In an APL case, the duration of the marriage during which the parties resided together.
(9) Any other appropriate factors.

Sifting through everything outlined above, we hold today that the following analytical paradigm must be employed whenever a spouse seeks APL:

(1) Is a divorce action pending? Because APL is ancillary to divorce, no award can be ordered in the absence of a pending divorce action.
(2) Does the dependent spouse have a financial need for APL? The question of financial need must of necessity be fact-specific and based upon the exigencies of each unique case.
(3) What do the spousal support guidelines require based upon the income of both parties?
(4) Is a deviation from the spousal support guideline amount appropriate based upon the factors set forth in Pa.R.C.P. 1910.16-5(b)?

It is the above analytical paradigm that we will apply to the facts of this case.

B. Factual Analysis

(1) Pending Divorce Action

Wife filed a divorce complaint on June 25, 2013. That divorce complaint was never withdrawn. Litigation regarding the parties’ divorce is now pending. Thus, APL is a remedy available to wife under the Pennsylvania Divorce Code.

(2) Financial Need

Stripped of superfluity, husband posits the following argument: “Wife is able to pay her current expenses with her income. Therefore, she has no financial need.” We categorically reject this simplistic argument. A determination of financial need must of necessity analyze far more than whether an obligee spouse has unpaid bills and expenses.

Husband earns almost double the income of wife. In terms of dollars and cents, husband takes home almost $3,000.00 per month in net income more than does wife. This is a significant income discrepancy that cannot be ignored.

During the marriage, the parties enjoyed an upper middle class lifestyle. It is certainly true that when two spouses separate, neither will be able to enjoy the same lifestyle separately that both were able to enjoy together. Still, a spouse who earns less than her husband should not be expected to endure a standard of living that is degraded considerably below what was previously enjoyed during the marriage. In this case, wife has had to “start over” in an apartment. She testified that she has been forced to purchase furniture and other items from a thrift store in order to set up her household. She is no longer able to eat out or enjoy recreational activities as she did prior to separation. In short, wife has a need for additional finances in order to raise her lifestyle to a level closer to what she enjoyed pre-separation.

Just as important, we are not blind to the fact that when pursuing or defending litigation, money and financial resources can equal leverage — and we are talking about much more than simply being able to afford lawyers’ fees and costs. When a litigant is in a precarious financial situation and is living paycheck-to-paycheck, there is a huge temptation/incentive for that party to settle promptly. Knowledge of this fact affords the opposing party with a negotiating advantage that can be critical. On the other hand, when both parties can enter litigation on a relatively equal financial playing field, neither has an unfair advantage over the other. In this case, the fact that husband earns far more than wife places him in a vastly superior economic position. See, e.g. DeMasi v.DeMasi, 597 A.2d 101 (Pa. Super. 1991) (assets and income are the “financial sinews of domestic warfare.” Id. at 104). Independent of anything else, this type of vastly superior economic position is precisely why APL was developed at common law and by statute.

As noted above, the bar to establishing financial need has never been impossible or even difficult to hurdle. See, Kuehnle v. Kuehnle, 157 A.2d 218 (Pa. Super. 1931) (“It is not necessary that [wife] be financially destitute before an [APL] order is made.” Id. at 219). While we would be reluctant to award APL simply because one spouse earns only percentage points less than the other, neither are we blind to the day-to-day and litigation advantages that $3,000.00 per month can afford to a party. In this case, we agree with the special master that wife has established financial need for APL. Therefore, we will move forward to apply the rules governing the Pennsylvania Support Guidelines.

(3) Guidelines Support Amount

The special master determined that the support guidelines result in an award of APL totaling $1,178.00 per month. Neither husband nor wife have challenged the special master’s determination of income or her calculation of APL using the spousal support guidelines. Accordingly, we will adopt the calculation of the DRM that the guidelines require that husband pay $1,178.00 per month to wife.

(4) Deviation

The special master did not consider deviation from the support guidelines as a possibility, nor did she analyze or discuss any of the support deviation factors. Because we believe that analysis of APL should generally at least contemplate the possibility of deviation, we would prefer to undertake a deviation analysis. Unfortunately, we are significantly hindered in our ability to do so by virtue of the fact that husband choose not to testify at the APL hearing.

In a pro se document filed on October 29,2014, husband asserted that his monthly expenses greatly exceeds his income and “I can no longer afford to be represented and maintain any type of a lifestyle I am accustomed to.” Unfortunately, we cannot consider husband’s post-hearing protestations of poverty. Husband was afforded the opportunity to provide testimony and documentation at the APL hearing that occurred on August 26, 2014. For whatever misguided reason, husband voluntarily chose not to present anything. As a practical matter, we are unable to undertake a meaningful deviation analysis as a result.

In absence of testimony and evidence from husband relative to his financial situation, we are unable to deviate from the formula calculation of APL required by the Pennsylvania Spousal Support Guidelines. Accordingly, no deviation from the guidelines will be directed.

III. CONCLUSION

On the initial legal question of whether financial need is a prerequisite to an award of APL, we agree with husband that some showing of financial need is a predicate to an award of APL. However, we categorically reject husband’s position that myopically focuses upon whether wife has unpaid expenses. Evaluating financial need requires a global assessment of both spouses’ income, expenses, assets and standard of living. APL has always been intended to prevent one spouse from gaining financial leverage over the other during the pendency of a divorce proceeding, and financial need must be assessed with this purpose in mind.

In this case, there is a huge disparity of income between husband and wife. Moreover, wife has established to our satisfaction that her current financial situation is tenuous, and that her standard of living has diminished significantly since separation. We conclude that absent APL, husband would be in a far better position to litigate the parties’ divorce than would wife. Accordingly, we agree with the special master that wife has established financial need.

Because we conclude that wife has established financial need, we agree with the special master’s decision to apply the spousal support formula set forth in the support guidelines. Although we would have preferred to undertake a deviation analysis under Pa.R.C.P. 1910.16-5(b), we were essentially prevented from doing so by virtue of husband’s decision not to testify or provide documentary evidence. Accordingly, we will adopt the special master’s guideline formula calculation and will affirm her decision to award wife $1,178.00 per month in APL. An Order to accomplish this will be entered today’s date.

ORDER OF COURT

And now, to wit, this 19th day of December, 2014, upon consideration of the exceptions filed by Christopher C. Smith, and in accordance with the opinion that is attached, it is ordered and eecreed that Christopher C. Smith’s exceptions are denied and the recommendation of the special master is affirmed as follows:

1. Alimony pendente lite is hereby awarded effective June 11, 2014, and shall be paid by Christopher C. Smith to Susan C. Smith as follows:

(a) $1,178.00 per month until a final degree in divorce is entered in this matter.
(b) Uncovered medical expenses, after the first $250.00 per year, incurred by Susan C. Smith shall be paid 65% by Christopher C. Smith and 35% by Susan C. Smith.
(c) Arrears shall be paid monthly by Christopher C. Smith to Susan C. Smith until the arrearages are paid in full at the rate of $117.80 per month.
(d) This order shall be forwarded to the domestic relations office to be paid through domestic relations by way of wage attachment.

      . In addition, the 2013 income tax return of the parties revealed capital gains of $82,901.00 during that calendar year. The special master determined that capital gains “can properly be considered as part of the marital estate for distribution purposes when the estate is later divided.”

      . Schenk was affirmed by the Superior Court on two separate grounds. In addition to declaring that the wife had not established financial need, Schenk also recognized that the support guidelines themselves required a deviation because wife possessed “other income in her household” and this is a factor that the court must consider when determining whether to deviate from the support guidelines.

      . There are other differences as well. For example, a spouse may receive APL even when his/her martial misconduct would have barred an award of spousal support. Wargo v. Wargo, 154 A.2d 339 (Pa. Super. 1959). Also, spousal support is of indefinite duration, while APL is limited in duration to the time that a proceeding “may with due diligence be prosecuted to conclusion. Belshy v. Belshy, supra.

      . In a case involving APL, we believe that an appropriate “other factor” would be whether the assets possessed by the parties will later be attached or divided during equitable distribution. After all, we question the fairness of granting or denying APL because one spouse may temporarily possess an asset that will later be divided between both.

      . We are well aware that husband has retained possession of the marital home. We suspect that expenses relating to the marital home could well exceed the $765.00 per month that wife spends in rent for her apartment. (See Exh. 2). This is certainly a factor that we would have considered when determining whether to deviate from the guidelines. Unfortunately, we cannot consider this or any other aspect of husband’s financial condition because he stubbornly refhsed to provide information regarding that condition.