*1 456 part Compen-
The second of Section 303 of the Workmen’s Act, above, prohibits joinder sation referred to a fellow as his in an employee employer against as well action Thus, defendant. the rationale on party third advanced from suit of the immunity employer applies behalf of with force to of a equal immunity co-employee.7 reasons, all of the the order of the lower court For above proceedings This case is remanded for consist- is reversed. this is opinion. relinquished. ent with Jurisdiction McEWEN, J., dissenting files a statement.
McEWEN, Judge, dissenting:
for all
the reasons
I
respectfully
I most
dissent
that
expressed
majority opinion
earlier
a dissent
have
370,
Corp.,
Pa.Super.
the cases of
v. Harris
290
Leonard
(1981),
Carborundum, 307
v. Hilda B. GEYER. Pennsylvania. Superior Court of 1, Argued Dec. 1981. Filed Feb. 1983. (1971) Reichert, (Section A.2d 482 Apple See v. 443 Pa. co-employees Compensation protects in all Act all of Workmen’s employee may injury negligent cause where conduct of one situations injury question employee, provided that the is one to a fellow Act.) compensable under the *2 Menaker, Harrisburg, appellant. for D. Bonnie Schaffner, Harrisburg, appellee. A. Herbert MONTEMURO, JJ. BROSKY, WIEAND Before *3 BROSKY, Judge: H. 31, 1980, Charles granted December
On of jurisdiction and retained Sr.’s, divorce appellant’s, Geyer, fees, the pro- costs of attorney’s respect the case with n alimony. property of marital division ceeding, hearing conducted a the court appointed by master complied parties with which made recommendations en- The court alimony. as to the recommendation except following order: tered 1981, now, 19, hearing, plaintiff’s after May
And are alimony Report Master’s relative exceptions alimony is awarded and the Defendant dismissed hereby ($50.00) week effective of Dollars Fifty in the amount attains her as Defendant 1, until such time January birthday. 65th in the lower court that Geyer argues Mr. appeal,
On alimony, of failed to and amount determining right as Geyer received Mrs. property the marital consider He couple’s of the assets. distribution equitable of the part or- alimony payments of that the duration also contends 501(c). court is in violation Section the lower dered that awarded is Geyer argues alimony Mr. Finally, excessive. is the of review of scope must first consider what
We
In our recent
in Remick v. Rem-
alimony
opinion
awards.
that
ick,
Pa.Super.
(1983),
Because our review of the record and that the court not considered all of the may indicates have award, circumstances to an we reverse pertinent and remand. determining paid
In the amount of to Mrs. be evidence: Geyer, following master considered the three- earnings approximately Mrs. net are Geyer. fifths that of Mr.
2. That Mr. and that Mrs. years age Geyer is 60 years age.
3. That the master to parties appeared both health Mr. good any apparent without disabilities. *4 confirmed the master’s observation when he stated he was good in health. 62,
4. from age Geyer’s On retirement at Mr. income Security” “Social and his will company pension be between a month. His retirement benefits would $790 be $923 increased if he He age would work until he was 65. has employed by been his for 39 present employer years. On retirement at total retirement age Mrs. income from Security” employee’s pension “Social and her would per employed by month. She has been $571 having up for six been a housewife
present employer years, to that time. expec- had him no of any
5. The master before evidence parties. tancies or inheritances of the married approximately 6. The have been years. Geyer being
7. Mrs. the homemaker for most of the marriage Geyer enabled Mr. to work full-time at his parties’ job, thereby increasing earning power. his During together con- years parties lived both substantially marriage, tributed the wife as a home- general maker and the husband as the breadwinner and handyman.
9. Mr. Geyer ongoing relationship has had an with an- other during marriage. woman time
10. Mr. Geyer approximately twenty-eight will receive ($28,000) thousand dollars of the marital from division and Mrs. approximately twenty- will receive ($29,500). nine thousand five hundred dollars conclusions, reaching In his the master stated that he in earning capacity considered that the difference of the on the that the parties was based fact husband was able working work full time over at a many years job thereby was, himself to a up good paying position. wife for the confined part during marriage, most to homemaker thereby develop duties and unable to for herself a career of which, life, long standing point at this would culmi- pay nate better than she now commands.
After Mr. heáring Geyer’s exceptions the Master’s Report dismissed, relative to alimony, exceptions were March, 1981, and bn the 19th the court awarded day ($50) in the fifty amount of dollars week effective until such time as January Mrs. attains her 65th birthday. Assembly provided
Our General has at 23 part P.S. which reads relevant as follows: *5 (a) may allow alimony, reasonable, as it deems either party, to if it finds that the party seeking alimony:
(1) lacks sufficient property, including hot bút limited any to 4; distributed pursuant Chapter provide for his or her needs; reasonable (2) is unable to support himself or through herself appropriate employment.
(b) In determining whether alimony is and in necessary, determining nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) The earnings relative and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional parties. conditions of the
(3) The sources of parties income of both including but not medical, retirement, limited to insurance or other benefits.
(4) The expectancies and inheritances of the parties. (5) The duration of marriage.
(6) The education, contribution one party to the training earning increased power of the other party. (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child to seek employment outside the home.
(8) The standard living of the parties established during marriage.
(9) The relative education of and the time necessary acquire sufficient training education or enable the party seeking alimony to find appropriate employment.
(10) The relative assets and parties. liabilities (11) The property brought the marriage by either party.
(12) The spouse contribution as homemaker. (13) The relative needs of the parties.
(14) of either the The marital misconduct of marriage; however, the the marital misconduct during to separation subsequent parties during of either of the a divorce shall not considered filing complaint of be alimony. in to its determinations relative by court in quoted found each of the directives subsections (a) above, when read are clear. Subsection separately, party if the directs that shall be awarded lacks for his seeking alimony property provide sufficient to needs and is unable to himself or support or her reasonable (b) appropriate employment. herself Subsection through enumerat- upon directs that if consideration of fourteen factors) (in other any ed factors addition relevant shall be necessary, alimony court finds it awarded. complains Mr. that the lower court failed Geyer from by Geyer consider marital received Mrs. property in she determining whether could equitable distribution for her reasonable needs. provide 501(a) spouse any includes in the of a property Section Chapter 4 of the Divorce property pursuant distributed Code. equitable concerns distribution.
Chapter of the Code not any The trial court does discuss facts seq. P.S. et involving Geyer equitable received Mrs. after money that Mr. Report merely distribution. The Master’s recites $28,000 from Geyer equitable shall receive distribution $29,500. circumstances, are Geyer Mrs. Under these we the law as unable that lower court abided say 501(a)(1). doing, In so the court abused provided 23 P.S. its discretion. argument that the lower appellant’s
Contained proper did to the distribution of give not consideration appellee’s marital is the claim that “reasonable for needs” do include the future. We making provision not from a agree. reading do not The master found Mrs. she is meet expense “income and statement” that income. Her expenses her from her current ing current frills; item for any one without is one without budget for vacation, entertainment, provisions lunch expense There no automobile. 15-year old replacement contingencies for savings provide future provision her retirement which will supplement as illness and to such Mrs. have to Geyer. that of Mr. will less than living quarters to marital residence replace secure other as property. to be divided marital which was recommended apartment an testimony indicated in her Mrs. preseri't Her cost her a minimum of month. $200 will house shown on living the marital as expenses statement,” mortgage “income includes expense $60 *7 of month, taxes month, realty insurance of a per $8.15 a expenses of a month and maintenance $73.52 $32.50 living of so her for expenses for total month $174.17 at month. Accord- increase quarters will least $25 lacked sufficient the master found that Mrs. ingly, her needs.” income to for “reasonable provide when the order was parties early The were in their sixties were obvi- periods gainful employment entered. Their reason- to an end. To claim that Mrs. ously coming day day can on a to are met if she sustain life able needs the is is the realities of working ignore while she to basis in a to work surely will almost be unable situation. She her daily If resources are such that few her very years. meet all of she will unable to money, needs consume error in the find no those needs when she retires. We needs of a the lower court that the reasonable conclusion of to some meas- acquire include need year person old upon retirement. security ure financial the effect of remand, the court is to consider On lower needs.” on “reasonable equitable appellee’s distribution the order that to claim that appellant’s We turn now the to Mrs. until her 65th alimony payments make he 501(c). birthday Section violates Assembly intend that the General We are convinced justice for provide 501 to economic by enacting Section ed according be met to the actual needs ability of the pay. goal requires This that Section 501 be manner. applied Clearly, legislature a nonmechanical intended that a and compassionate reasonable result be reached. trial explained in its that it opinion agreed
with the master’s conclusion that Mrs. Geyer’s age and lack adversely skills will affect earning capacity and make it for her impossible provide for the future. trial
While the court does not refer specifically statute, it is clear to us that it considered mandate of 501(c) Section which provides pertinent part, unless ability party of the seeking alimony to provide for his or her through reasonable needs employ- diminished ment substantially age, is reason of physi- cal, or méntal emotional condition ... or other compelling impediment gainful employment order ... will be [the limited in duration]. is,
That if a party receiving provide able his through needs employment, reasonable court is to fashion an order to be in effect until such employment has been party obtained has developed *8 an appropriate skill. employable
It is true that Mrs. is not unable find employ- Nevertheless, concluded, ment. the lower court we believe properly, that the she can is employment by limited find age Therefore, and minimal skills. “ability provide for her reasonable by needs” diminished those factors. We error find no in the duration of the order.
Accordingly, we reverse the order of the trial court as to award and proceed- remand to that court for ings opinion consistent with this at it shall which determine whether shall if be awarded and so what amount. disposition issues,
Given our of the afore-discussed we will the award excessive. Jurisdiction whether was not discuss this court. is not retained
WIEAND, J., statement. dissenting files WIEAND, Judge, dissenting:. I to remand unnecessary dissent. find it respectfully
I of additional the trial court for consideration this cause to me that the persuades of the record My factors. review man- to those factors court did due consideration give trial of alimo- thereafter entered an award dated statute and no Finding fair and reasonable. eminently that was ny discretion, I affirm that order. would abuse
Appeal COMPANY. GOODMAN HALL
Kirk v. Mall, Inc., and Run Alfred MESTICHELLI Granite Sears, Roebuck and Co. MALL,
Appeal of GRANITE RUN INC. Pennsylvania. Superior Court of Argued May 1982. Filed Feb.