This Week In the Courts

The Superior Court this week issued several opinions, some of which are summarized below. To access the full opinions of the Court, you may log onto the Court’s website at

Marital Property Cases:

MacDougal v. MacDougal, 2012 Pa. Super. 83
Are post-separation cost of living adjustments considered marital property, subject to equitable distribution? In this case, the wife was to receive 50% of husband’s military pension. Husband and Wife were married until 2001, but Husband did not retire from the military until 2005. From the time of separation until the time of retirement, Husband received increases in his salary due to cost of living adjustments that ultimately increased his retirement pension. Husband began sending Wife checks every month, based on a calculation of what she would get without those post-separation increases in his pay. Wife filed a petition for contempt, alleging that the calculation should be based on what he is actually getting every month. The court held that, if cost of living adjustments are based on Husbands increased efforts and are merit-based, then they will not be considered marital property. However, if they were determined by a fixed formula based solely on Husband’s amount of time in the service, then it would be considered marital property.

Reber v. Reiss, 2012 Pa. Super. 86
Are frozen pre-embryos marital property? If so, are they subject to equitable distribution? In this case, Wife was diagnosed with breast cancer and advised to undergo in vitro fertilization to preserve her ability to have children. Husband and Wife underwent the process which resulted in thirteen pre-embryos. After cancer treatments, Wife believes she is unable to have children, and thus is seeking the pre-embryos for implantation. Husband is seeking the embryos for destruction. The trial court awarded them to Wife, considering her inability to have children otherwise. The court and all parties agreed that the embryos are marital property. However there is no case law or statute in Pennsylvania addressing the distribution of embryos. This court looked at other states that have addressed similar issues and concluded that a balancing of the interests approach is the appropriate way to decide this issue. The court balanced Wife’s interest in being unable to produce genetic parenthood otherwise, against Husband’s interest against procreation. The court found that Wife’s interests were compelling and awarded the embryos to her.

Criminal Cases:

In Re J.M., a Juvenile, 2012 Pa. Super. 81
Court holds that the Juvenile Act prohibits a juvenile court from imposing a term of incarceration on an individual who is over 18, but under 21, for violating probation from a delinquency adjudication. In this case, the juvenile was placed on probation and then after his 18th birthday committed a new crime. He was being charged as an adult for this new crime, but the juvenile court also found him to have violated probation and sentenced him to time in an adult prison for this violation. The Juvenile Act prohibits the detention of children in an adult facility, and since he qualifies as a child under the act, the juvenile court lacked authority to place him in an adult facility.

Commonwealth v. Tarrach, 2012 Pa. Super. 82
Defendant challenged the sufficiency of the evidence in the trial court’s finding her guilty of driving under the influence of a controlled substance. This court held that the statute does not require the Commonwealth to prove a specific amount of drugs was present in the defendant’s system. It requires only that the person was under the influence to the degree that he/she is incapable of safe driving. The court held that no expert opinion was necessary, and that the totality of the circumstances was sufficient to show she was incapable of safe driving. In this case she had gotten into an accident, there was witness testimony about her swerving out of her lane, and the officer observed glassy eyes and slurred speech. She also failed the field sobriety tests.