author: SAYLOR, Judge:

text:
    657 A.2d 961
    COMMONWEALTH of Pennsylvania v. Darryl BYRD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1995.
    Filed April 11, 1995.

      William J. Hathaway, Erie, for appellant.
    Anna Firestone, Asst. Dist. Atty., Erie, for Com., appellee.
    Before CAVANAUGH, JOHNSON, and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from an order of the Court of Common Pleas of Erie County resentencing Appellant, Darryl Byrd, to an aggregate term of 11 to 22 years imprisonment. We vacate and remand for resentencing.

On May 20, 1993, a jury convicted Appellant of unlawful restraint, robbery, terroristic threats, theft by unlawful taking, burglary, aggravated assault, resisting arrest, and recklessly endangering another person. Appellant was found not guilty of a second charge of burglary. Appellant filed timely post-verdict motions which were denied by the trial court. On June 30, 1993, Appellant was sentenced to an aggregate term of 11 y¿ to 23 years imprisonment. On appeal, the Superior Court determined that Appellant’s substantive claims were meritless but vacated the judgment of sentence because of certain sentencing errors. Counts one and eight of the criminal information charged Appellant with two separate burglaries. The verdict slips revealed that Appellant was convicted of count one, but acquitted of count eight. The trial court, however, sentenced Appellant on count eight, of which he had been acquitted, but failed to sentence him on count one, of which he had been convicted. Additionally, although Appellant was found guilty of aggravated assault, a felony of the second degree, the sentencing judge had imposed a sentence for a first degree felony aggravated assault. Therefore, the Superior Court remanded the matter to the trial court for resentencing. On June 17, 1994, the trial court resentenced Appellant to an aggregate term of 11 to 22 years. Appellant filed motions requesting modification and reduction of the sentence which were denied by the trial court. This direct appeal followed.

In the interest of clarity, we have consolidated and reordered the issues raised by Appellant as follows: 1) Whether Appellant’s counsel was ineffective for failing to petition for allocatur to the Supreme Court with respect to the substantive issues raised on appeal to the Superior Court; 2) Whether the trial court abused its discretion by resentencing Appellant without considering certain mitigating factors; and 3) Whether the trial court abused its discretion by failing to provide sufficient reasons for imposing the sentence and misapplying the sentencing guidelines.

Appellant contends that defense counsel was ineffective for failing to petition for allowance of appeal to the Supreme Court on all of the substantive issues raised by Appellant in his appeal to the Superior Court. An appeal to our Supreme Court is not a matter of right, but of sound judicial discretion. Pa.R.A.P. 1114; Commonwealth v. Tanner, 410 Pa.Super. 398, 600 A.2d 201 (1991), appeal denied, 530 Pa. 654, 608 A.2d 29 (1992). Review by the Supreme Court is “purely discretionary and will be granted only where there exist both special and important reasons. Pa.R.A.P. 1114. It would be illogical to conclude that a miscarriage of justice occurred by counsel’s failure to seek Supreme Court review unless it is established that the issue was such that review would have been granted by the Supreme Court.” Commonwealth v. Gilbert, 407 Pa.Super. 491, 595 A.2d 1254 (1991), appeal denied, 529 Pa. 640, 600 A.2d 1258 (1991).

Appellant’s original appellate counsel, Joseph P. Burt, filed a petition to appoint substitute counsel and a petition for leave to withdraw as counsel based upon his belief that there were no meritorious issues which he could raise on behalf of Appellant in a petition for allocatur to the Supreme Court. Attorney Burt based his decision upon his review of the record and the Superior Court’s previous determination that the substantive issues raised by Appellant were meritless. Here, Appellant has failed to set forth any facts or arguments to establish that the issues which he would have raised possessed merit and that the Supreme Court would have exercised its discretion and reviewed Appellant’s issues, and in point of fact Appellant’s counsel examined the record and concluded that there were no such meritorious issues. We therefore find that Appellant is not entitled to relief on his claim of ineffectiveness.

Next, Appellant contends that the trial court failed to give sufficient consideration to certain mitigating factors, including his use of his incarceration time to improve his education, his use of the Salvation Army programming, and his mastery of his anger. This is a challenge to the discretionary aspects of his sentence. Thus, we note preliminarily that Appellant’s brief contains a concise statement of the reasons relied upon for allowance of appeal with regard to his sentencing claims and therefore complies with the dictates of Pa. R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). However, an appeal which challenges the discretionary aspects of sentencing will only be granted if Appellant raises a substantial question as to the appropriateness of his sentence. Commonwealth v. Tuladziecki, supra; Commonwealth v. Koren, 435 Pa.Super. 499, 646 A.2d 1205 (1994). We have held that “an appeal based on the argument that the sentencing court failed to give sufficient weight to certain mitigating factors does not raise a substantial question.” Commonwealth v. Jones, 432 Pa.Super. 97, 106, 637 A.2d 1001, 1006 (1994). Therefore, we decline to review Appellant’s argument that the trial court failed to consider certain mitigating circumstances in resentencing him.

Finally, Appellant argues that the sentencing court abused its discretion by misapplying the sentencing guidelines and by failing to provide sufficient reasons for the sentence imposed. At the sentencing hearing, the court stated as follows:

As I pointed out, with the significant criminal history you’ve got and the circumstances I’ve just indicated, you clearly fall within the aggravated range. There’s no question but that this Court must sentence you within the aggravated range because of the circumstances which I just indicated. The safety of this community requires it.

However, it appears from the record that the court, despite having announced that it was sentencing Appellant within the aggravated range, in fact proceeded to sentence Appellant outside of the sentencing guidelines with respect to the crimes of robbery, burglary and aggravated assault.

Appellant was sentenced to a term of imprisonment of 10 to 20 years for robbery. With Appellant’s offense gravity score of seven and his prior record score of four, the sentencing guidelines provide that the mitigated range for this crime is 25 to 33 months imprisonment, the standard range is 33 to 49 months imprisonment, and the aggravated range is 49 to 61 months imprisonment. Therefore, it is clear that Appellant was sentenced outside of the sentencing guidelines for this crime. Furthermore, Appellant was sentenced to a term of imprisonment of six to twelve years for burglary and four to eight years for aggravated assault. Both of these sentences are also clearly outside of the sentencing guidelines.

While deviation from the guidelines is permitted, Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731 (1992), the Sentencing Code requires that the court place of record its reasons for such deviation. 42 Pa.C.S.A. § 9721(b); 204 Pa. Code Ch. 303.1(h). The Superior Court has held that

At the minimum, the court must indicate that it understands the sentencing guideline range, in those cases in which the court deviates from the guidelines.
As noted above, in every case where sentence has been imposed, the court then must make as part of the record and disclose in open court at the time of sentencing, a statement for the reasons for the sentence. However, the Sentencing Code imposes an additional requirement where the sentence is outside the guidelines and that is there must be a contemporaneous written statement of the reasons for deviation from the guidelines. Where the trial judge deviates from the sentencing guidelines ... he must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range. The Act states that failure to provide an appropriate contemporaneous written statement shall be grounds for vacating the sentence and resentencing the defendant. In the instant case the court did not advise the defendant what the sentencing guidelines provided as far as the range of sentence, and did not state why he deviated from the sentencing guidelines.

Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453, 457 (1984). See also, Commonwealth v. Breter, 425 Pa.Super. 248, 624 A.2d 661 (1993).

Here, the sentencing transcript reveals that the sentencing court failed to set forth in Appellant’s presence the permissible range of sentences under the guidelines. Moreover, while the sentencing court did provide reasons for the sentence imposed, these reasons were advanced to support a sentence in the aggravated range. Nowhere did the court indicate that it was in fact sentencing Appellant outside of the guidelines and provide a contemporaneous statement of its reasons for such deviation. Accordingly, we vacate the judgment of sentence and remand for resentencing.

Motion to supplement brief denied; judgment of sentence vacated; case remanded for resentencing; jurisdiction relinquished.

      . In addition to his counseled brief, Appellant filed a pro se handwritten eight-page “Motion Requesting to Supplement Amend to the Original Brief' setting forth six "facts issues.” Such motion is in complete non-conformity with the Rules of Appellate Procedure and is denied.

      . In support of this argument, Appellant cites Commonwealth v. Daniels, 491 Pa. 289, 420 A.2d 1323 (1980) which has no applicability to this case, but merely holds that an indigent defendant has the right to court-appointed counsel for purposes of seeking review by the Supreme Court.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    657 A.2d 964
    James J. BLACK, Jr., Appellant, v. Susan D. BLACK, Appellee.
    Superior Court of Pennsylvania.
    Argued March 1, 1995.
    Filed April 12, 1995.

      David S. Shrager, Duquesne, for appellant.
    Before TAMILIA, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

In this appeal we are asked to determine whether Pennsylvania has subject matter jurisdiction to modify a prior custody order of an Arizona court pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), which is codified at 23 Pa.C.S.A. sections 5341 et seq. The trial court found that the child’s home state was Alberta, Canada, and that Pennsylvania had no basis to assume jurisdiction and modify Arizona’s prior custody order. We conclude that the trial court correctly applied the UCCJA and therefore affirm.

The parties in this appeal are the natural parents of a minor child, Shannon, who was born December 7, 1989, in Durango, Colorado. Soon after the child was born the parties moved to Phoenix, Arizona, where James J. Black (Father) opened a chiropractic office. On August 1, 1990, Susan D. Black (Mother) took the child to visit her maternal grandparents in Alberta, Canada. Although Mother had purchased return airline tickets for herself and the child, she advised Father on August 11, 1990, that she would not return to Arizona and intended to file for divorce. On October 19, 1990, the Family Division of the Provincial Court of Alberta entered a “Custody and Access Order” awarding sole custody of the child to Mother. Father then petitioned the Canadian court to compel Mother to return the child to Arizona. Father claimed that Mother wrongfully abducted the child from Arizona and that he was entitled to the child’s return under the Hague Convention on the Civil Aspects of Child Abduction. The Canadian court determined that Arizona was the appropriate forum to adjudicate the parties’ custody dispute, and hence ordered Mother to return the child to Arizona.

The Superior Court of Arizona, Maricopa County, entered a custody order on February 12, 1992, granting Mother primary custody of the child and awarding Father visitation rights. Following the Arizona custody decree, Mother returned to Alberta, Canada, where she has continuously resided until the present day. Father moved to Allegheny County, Pennsylvania, and filed a complaint for custody on February 25, 1994, seeking full custody of his minor child. On March 3, 1994, Father presented a motion for emergency relief seeking temporary custody of his minor child. Father alleged that the child was physically present in Pennsylvania and had been abused by Mother while living in Canada. Father requested the court to award him temporary custody until the scheduled conciliation so that he could prevent Mother from taking the child back to Canada. The trial court denied Father’s request for emergency relief without prejudice.

On March 21, 1994, the trial court conducted a conciliation to adjudicate Father’s custody complaint. Mother did not appear at this conciliation and the trial judge requested Father to file a brief on the issue of jurisdiction. After considering Father’s brief regarding jurisdiction, the trial court entered an order on May 31, 1994, dismissing Father’s custody complaint. Without hearing testimony on the issue of jurisdiction or the merits of Father’s custody complaint, the trial court determined that it lacked subject matter jurisdiction to modify the Arizona custody decree. Father then filed this appeal asserting that it was error for the trial court to decline jurisdiction under the UCCJA. Additionally, Father argues that the trial court should have conducted an evidentiary hearing to determine if Pennsylvania had jurisdiction to entertain his custody complaint.

A decision of a trial court to decline jurisdiction under the UCCJA will not be disturbed on appeal absent an abuse of discretion. Merman v. Merman, 412 Pa.Super. 247, 250-52, 603 A.2d 201, 203 (1992).

To determine whether Pennsylvania has jurisdiction to entertain Father’s custody complaint, we refer to the UCCJA. This Act was adopted by the Pennsylvania Legislature in 1977 “to provide measures for dealing with inter-state and international custody problems.” Warman v. Warman, 294 Pa.Super. 285, 292-93, 439 A.2d 1203, 1207 (1982). More specifically:

The purpose of the Act was to provide stability to the home environment and to family relationships by discouraging continuing controversy over child custody and visitation; to avoid jurisdiction disputes; to deter abductions; to avoid relitigation; to promote comity; and to assure that litigation concerning child custody takes place ordinarily in the state in which the child and his family have the closest connection.

Barndt v. Barndt, 397 Pa.Super. 321, 325-26, 580 A.2d 320, 322-23 (1990). See also Goodman v. Goodman, 383 Pa.Super. 374, 383-85, 556 A.2d 1379, 1384 (1989).

Section 5344(a) of the UCCJA delineates five circumstances when a Pennsylvania court may exercise jurisdiction to issue an initial or modified child custody decree. It provides:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(1) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child;
(3) the child is physically present in this Commonwealth, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.

23 Pa.C.S.A. § 5344(a).

In the present case, Father is seeking to modify a prior custody decree issued by the Arizona Superior Court. In this situation, we must adhere to section 5355 of the UCCJA which governs in situations where another state has rendered a prior custody order. Section 5355 provides that a court of Pennsylvania shall not modify a prior custody decree of another state unless:

(1) it appears to the court of this Commonwealth that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with [the UCCJA] or has declined to assume jurisdiction to modify the decree; and
(2) the court of this Commonwealth has jurisdiction.

23 Pa.C.S.A. § 5355(a).

We begin by examining whether any of the five jurisdictional bases of section 5344 apply to this case thus allowing the trial court to assume jurisdiction and modify the Arizona custody decree. Section 5344(a)(1), known as the “home state” jurisdiction, is the preferred basis of jurisdiction. See Warman, 294 Pa.Super. 299, 439 A.2d at 1210 (“primary jurisdiction remains in the community the child recognizes as ‘home.’ ”); Goodman, 383 Pa.Super. 388, 556 A.2d at 1386 (jurisdiction premised on the ground that the forum is the child’s home state predominates over the other grounds for jurisdiction). “Home state” is defined in section 5343, in pertinent part, as follows:

“Home state.” The state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent, or in an institution, for at least six consecutive months, and, in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned.

23 Pa.C.S.A. § 5343.

In the present case Father does not contest the trial court’s determination that the child’s home state is Alberta, Canada. In fact, Father admits in his brief that Canada is the home state of the child. Consequently, Pennsylvania may not assume jurisdiction of Father’s custody complaint pursuant to subsection (a)(1).

The second basis of jurisdiction in the UCCJA provides for jurisdiction based on the “significant contacts” among the various parties to the custody action and the locale in which the action has been brought. Warman, 294 Pa.Super. 293, 439 A.2d at 1207. This jurisdictional provision recognizes that, “a child may have a ‘significant connection’ to a state other than his ‘home state’ where, ..., the parents live in different states, there has been a shared custody arrangement, the child visits his grandparents, attends schools, and is treated by doctors in two different states.” Boudwin v. Boudwin, 419 Pa.Super. 570, 575-77, 615 A.2d 786, 789 (1992).

Under this section of the Act a court cannot assume jurisdiction unless the child and at least one contestant have a significant connection with the Commonwealth and there is available in Pennsylvania substantial evidence concerning present or future care of the child. Unless these requirements are satisfied there is no authority for a court to take jurisdiction under 42 Pa.C.S. § 5344[ (a)(2) ].

Hovav v. Hovav, 312 Pa.Super. 305, 311-12, 458 A.2d 972, 975 (1983) (emphasis in original).

To understand the rationale for this basis of jurisdiction, we refer to the comments of the drafters of the UCCJA:

[Paragraph (2) of 5344(a). ] was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.

Barndt, 397 Pa.Super. 328, 580 A.2d at 323 (emphasis in original) (quoting the Commissioner’s Notes explaining the UCCJA § 3).

Father argues that this subsection applies to his case to confer jurisdiction in the Pennsylvania court. Father alleges that even though Canada is the child’s home state, Pennsylvania should exercise jurisdiction since he and his child have significant contacts with Pennsylvania. Father alleges the following connections with the Commonwealth: (1) he has been a permanent resident of Pennsylvania since at least February of 1992; (2) Father’s extended family resides in Pennsylvania; (3) the child’s paternal grandmother, who resides in Allegheny County, Pennsylvania, maintains a close relationship with the child; and (4) Father’s extended family is concerned about the child’s health and welfare.

The trial court concluded that these factors fall short of the required “significant connections” standard required by subsection (a)(2). The trial court noted that the child has never permanently resided in Pennsylvania, nor is there any information concerning the child’s routine medical care, activities and current environment located in Pennsylvania.

Father relies on this Court’s decision in Hattoum v. Hattoum, 295 Pa.Super. 169, 441 A.2d 403 (1982), to support his position that there are significant contacts among the child, himself and Pennsylvania. In that case, the children’s home state was Argentina. Despite that fact, this Court concluded that Pennsylvania correctly assumed jurisdiction to modify a prior custody order since the children had significant contacts with Pennsylvania. The Court based its decision on the following facts: (1) the children resided in Pennsylvania with their mother for several years; (2) the father had permanently resided in Pennsylvania for nine years; (3) the children returned to visit their father in Pennsylvania every year for one-third of the year; and (4) there was ample evidence in Pennsylvania concerning the care, training and personal relationships of the children. Id. 441 A.2d at 406-7.

In the present case, Father has not alleged any of the same facts which this Court relied on in Hattoum. Mother and the child have never resided in Pennsylvania and Father has only resided in Pennsylvania for approximately two years. Furthermore, Father does not allege where the court will find information regarding the child’s care, training and personal relationships aside from the testimony of his immediate family. The child has never been enrolled in schools or day-care facilities located in Pennsylvania. Likewise, Father has not identified any individuals living in Pennsylvania, besides his immediate family, who are competent to render testimony regarding the child’s physical and emotional needs. Moreover, a Pennsylvania court has never before rendered a custody decree dealing with this child. Father’s allegations do not support an inference that the child has established strong ties within this Commonwealth such that it is in the child’s best interest for our courts to assume jurisdiction. Consequently, we agree with the trial court that Father has not presented sufficient evidence of “significant contacts” with Pennsylvania to establish jurisdiction under subsection (a)(2).

The third source of jurisdiction under the UCCJA is referred to as “parens patriae” jurisdiction. This section provides for jurisdiction in the locale where the action has been commenced if certain conditions are met. In order to assume jurisdiction under this subsection, two conditions must be met: (1) the child must be physically present in the Commonwealth; and (2) the child has been abandoned, abused or is otherwise neglected or dependent. Warman, 294 Pa.Super. 293, 439 A.2d at 1207.

In the instant case, the trial judge determined that subsection (a)(3) did not apply since the child was not physically present in Pennsylvania on the date of the conciliation, March 21, 1994. Father argues that subsection (a)(3) applies to his case because at the time he commenced his custody complaint on February 25, 1994, the child was present in Pennsylvania. Father requests that we interpret subsection (a)(3) to require the child’s physical presence in Pennsylvania at the time a custody action is commenced, not at the time the custody action is adjudicated.

This Court has previously ruled that the determination of jurisdiction must be made at the time of the commencement of the instant proceeding. Simpkins v. Disney, 416 Pa.Super. 243, 247-48, 610 A.2d 1062, 1064 (1992); In Re Sagan, 261 Pa.Super. 384, 387-89, n. 1, 396 A.2d 450, 452 n. 1 (1978). Based on this principle, we agree with Father that if the child was physically present in the Commonwealth when he filed his complaint for modification of custody, the trial court could have assumed jurisdiction provided the other prerequisites of subsection (a)(3) were met. In the instant case, the trial court held a hearing to determine if Father’s emergency petition should be granted. This petition was denied on March 3, 1994. Thus, the trial court did not find sufficient evidence of an emergency situation where the child was in need of the court’s protection to prevent abandonment, neglect or abuse. Without such proof the Pennsylvania court may not assume jurisdiction under subsection (a)(3). We therefore affirm the trial court’s decision that subsection (a)(3) does not apply to the facts of this case, although our rationale is different. An appellate court may affirm the actions of a trial court for reasons other than those proffered by the trial court hearing such matter. Soloski v. Hetrick, 396 Pa.Super. 140, 154-55, n. 8, 578 A.2d 445, 453 n. 8 (1990).

The fourth basis of jurisdiction under the UCCJA is when “no other state would have jurisdiction” under the first three sources of jurisdiction previously discussed or when another state has declined to exercise jurisdiction since Pennsylvania is the more appropriate forum, and it is in the best interests of the child that Pennsylvania assumes jurisdiction. In the present case, the trial court found and Father agreed that Canada was the child’s home state. Section 5365 of the UCCJA dictates that the general policies of the UCCJA apply to international custody cases. Hattoum, 295 Pa.Super. 174, 441 A.2d at 405. The trial court was correct when it concluded that a foreign country may be considered the “home state” for purposes of the UCCJA. See Hattoum, supra, 295 Pa.Super. 169, 441 A.2d 403 (court applied the UCCJA where the children’s home state was Argentina). Therefore, if Canada has a law substantially similar to section 5344(a)(1) of the UCCJA, it may exercise jurisdiction to modify the initial custody decree as the child’s “home state.”

Father argues that Canada could not assume jurisdiction of his custody complaint since it had previously determined that it lacked jurisdiction to entertain Mother’s custody complaint. We disagree. The Provincial Court of Canada determined in 1989 that Arizona was the appropriate forum for adjudicating the parties’ initial custody dispute. The Canadian court ordered Mother to return to Arizona with the child and to file her custody action in Arizona. Mother complied with the Canadian court’s order and filed a complaint for custody in Arizona. Father never contested the jurisdiction of the Arizona court and the court awarded Mother sole custody of the child and permitted her to return to Canada to permanently reside. Since February of 1992 Mother has lawfully resided in Canada with her child.

The Canadian court can now assert jurisdiction to modify the Arizona custody decree since Mother lawfully took the child to Canada. Mother cannot be accused of abducting her child and forum shopping since she complied with the Canadian court order and the Superior Court of Arizona awarded her primary custody of her child. Accordingly, subsection (a)(4) does not apply to the facts of this case since it appears that Canada would have jurisdiction as the “home state” of the child.

The fifth basis of jurisdiction does not apply to the facts of the present case and will not be examined.

Father argues that section 5348 of the UCCJA dictates that Pennsylvania assume jurisdiction of his custody complaint since Pennsylvania is the more appropriate forum to modify the initial custody decree. Father argues that Canada should not exercise jurisdiction since it would undermine one of the policies of the UCCJA — to deter the unilateral abduction of children. As stated earlier, Mother has not abducted the child and unilaterally removed her to Canada. Mother was awarded sole legal custody of the child by the Arizona court. Mother was not restricted from leaving the United States and residing in Canada with the child. Furthermore, Father’s reliance on section 5348 is misplaced. This section only applies when there are concurrent forums which may properly exercise jurisdiction under the jurisdictional provisions of section 5344. Section 5348 provides in pertinent part:

(a) General Rule. — A court which has jurisdiction under [the UCCJA] to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
******
(c) Factors to be considered. — In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose, it may take into account the following factors, among others:
(1) If another state is or recently was the home state of the child.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the present or future care, protection, training and personal relationships of the child is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate.
(5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of [the UCCJA]).

23 Pa.C.S.A. § 5348. The trial court cannot exercise jurisdiction under this section until it first concludes that one of the jurisdictional bases found in section 5344 applies. Since the trial court was correct in concluding that Pennsylvania did not have jurisdiction under any jurisdictional provision of the UCCJA, section 5348 does not apply.

Finally, Father contends that the trial court should have conducted an evidentiary hearing to determine whether it had jurisdiction to entertain his custody complaint. This Court has examined this precise issue in Hovav v. Hovav, supra, 312 Pa.Super. 305, 458 A.2d 972. In that case the appellant-mother argued that the trial court erred when it refused to hear testimony on the merits of her custody petition. This Court rejected the appellant’s argument and stated:

It is of course true that there can be no effective review of the merits of a lower court’s custody determination without a complete record and a comprehensive opinion from the lower court. In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). Yet in this case, the lower court’s decision went not to the merits of [appellant’s] petition, but rather to its jurisdiction to hear the petition at all. The UCCJA provides that where the existence or exercise of jurisdiction is questioned, the case shall be handled expeditiously. 42 Pa.C.S. § 5366. Accordingly, the lower court correctly decided the jurisdiction issue before examining the merits of the case. There was enough information before the lower court to enable it to decide the question and it is not necessary to remand for further proceedings on this issue.

Hovav, 312 Pa.Super. 309, 458 A.2d at 974 (emphasis in original).

The same analysis applies to the present case. Prior to adjudicating the merits of Father’s custody complaint, the trial court applied the law of section 5344 to determine if it had subject matter jurisdiction to entertain Father’s complaint. Father failed to allege sufficient facts in his custody complaint, emergency petition, and trial court brief in support of Pennsylvania jurisdiction to warrant a further evidentiary hearing. Father had not raised a colorable argument in support of his contention that Pennsylvania had jurisdiction to adjudicate the merits of his custody complaint. We agree with the trial court that it was unnecessary for the court to conduct an evidentiary hearing to make this determination.

Order affirmed.

      . This Convention, which was adopted by the United States and Canada, provides for the recovery and return of children under the age of sixteen when they have been "wrongfully removed or retained” from their country of "habitual residence.” JOANNE ROSS WILDER, PENNSYLVANIA FAMILY LAW PRACTICE AND PROCEDURE, 341, (3rd ed. 1993).

      . Moreover, before a court in Pennsylvania may assume jurisdiction pursuant to subsection (a)(4), it must find that the best interests of the child will be served if the Pennsylvania court exercises jurisdiction. In this case, it is most likely not in the child’s best interest that Pennsylvania exercise jurisdiction since there is little evidence in Pennsylvania concerning the child’s needs and welfare.


author: TAMILIA, Judge:

text:
    657 A.2d 972
    COMMONWEALTH of Pennsylvania, Appellant, v. Barney FITTEN.
    Superior Court of Pennsylvania.
    Argued March 29, 1995.
    Filed April 21, 1995.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com. appellant.
    Samuel C. Stretton, West Chester, for appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   TAMILIA, Judge:

On March 27, 1992 the appellee, Barney Fitten, allegedly robbed the victim, 47-year old Edward Paige, and then tossed the 135 pound man over a multi-level shopping center railing to his death, two stories below. On November 12, 1992, a trial judge sitting as fact-finder found Fitten guilty of second degree murder and robbery, sentenced him to mandatory life imprisonment for the murder conviction, ordered a presentence report and set a date for post-verdict motions to be heard. The verdicts were duly recorded, the case was adjourned and the defendant and his counsel left the courtroom. While the trial court Opinion avers the district attorney remained in the room, this is reflected nowhere in the record. After the court attended to a few unrelated matters, and apparently, upon reconsideration of the appellee’s case, had misgivings, the judge ordered counsel and the defendant to return to the courtroom for additional argument. Defense counsel argued the evidence was insufficient to support the verdicts. The Commonwealth responded to the arguments and also voiced its objection to the court’s sua sponte decision to reconvene the case. The court then decided its original verdicts had been improper and changed the verdicts to murder in the third degree and misdemeanor one, theft.

On appeal the Commonwealth argues the trial judge erred by substituting new verdicts to supplant those already recorded and for which the defendant had, in part, already been sentenced.

This issue is controlled by our Supreme Court’s decision in Commonwealth v. Stark, 526 Pa. 1, 584 A.2d 289 (1990), wherein the Court held, inter alia, a trial judge’s authority over a verdict in a nonjury trial, like that of his authority over a jury verdict, is limited to ruling on post-verdict motions for an arrest of judgment or the grant of a new trial. Id. See also Commonwealth v. Gaither, 355 Pa.Super. 502, 513 A.2d 1034 (1986). Only causes appearing on the face of the record or insufficiency of the evidence will justify the grant of a motion in arrest of judgment. Id. Here, when court reconvened and additional argument was allowed, the trial judge reasoned:

THE COURT: Mr. Fitten [defendant] is back in the courtroom. Moments ago, in a waiver trial after argument the court found the defendant guilty of second degree murder and robbery. Quite frankly, after the defendant left the courtroom the court reconsidered the robbery, the conviction, and defense counsel has requested additional argument. Is that correct?
MR. MALLIOS: [defense counsel] Yes, your honor, I request that you set aside and reconsider your verdict and I be permitted to make additional argument in that regard.
MR. DANIELS: [district attorney] Your honor, the Commonwealth would object to that at this time.
THE COURT: I think because this is contemporaneous with the verdict, a matter of only moments has gone by since the actual verdict was rendered, and the court, in reviewing the testimony that it was considering, thinks it may not be the proper verdict. So on that, I will overrule your objection and additional argument is allowed.

(N.T., 11/12/92, p. 134.) After hearing argument which essentially reiterated the testimony presented at trial, the trial court reconsidered or reweighed the evidence presented and changed the verdicts.

Based on Pennsylvania case law, we find the trial court erred and the judgment of sentence imposed for third degree murder and theft must be vacated. A post-verdict court may not simply reweigh evidence de novo and change its mind. Commonwealth v. Mazon Johnson, 428 Pa.Super. 494, 631 A.2d 639 (1993) (en banc); see also, Commonwealth v. Nock, 414 Pa.Super. 326, 606 A.2d 1380 (1992) (Distinguishing trial court authority and that of a post-verdict court, the latter functions as an appellate court). Although a post-verdict judge may be disturbed by a verdict, his discretionary powers are limited to a determination of whether the evidence was sufficient to uphold the original verdict, and may not alter the original verdict and substitute a new one. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983). See also Gaither, supra, 355 Pa.Super. 502, 513 A.2d 1034.

Having found reversible error requiring reinstatement of the original verdicts and remand of this matter to the trial court for further proceedings, we will not address appellant’s second argument challenging the sufficiency of the evidence presented in support of the second degree murder conviction.

The Order convicting defendant of third degree murder and misdemeanor one, theft, is hereby vacated. The original convictions of second degree murder and robbery, with the mandatory life sentence, are hereby reinstated and the case is hereby remanded for presentence investigation and post-sentence motions.

Jurisdiction relinquished.


author: POPOVICH, Judge.

text:
    657 A.2d 973
    COMMONWEALTH of Pennsylvania, Appellee, v. Douglas Earl STIFFLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1995.
    Filed April 21, 1995.

      Gary Knaresboro, Clearfield, for appellant.
    Fredric J. Ammerman, Dist. Atty., Clearfield, for Com., appellee.
    Before McEWEN, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Clearfield County, following appellant’s conviction on two counts of burglary and two counts of criminal conspiracy. Herein, appellant contends that the lower court erred when it refused to grant a mistrial after a Commonwealth witness testified during direct examination that appellant was involved in a separate, uncharged burglary on the night in question. Finding no error, we affirm.

On or about October 22 and November 9, 1993, appellant and his then paramour, Barbara Simmers, forcibly entered the True Value Hardware store in Bell Township, Clearfield County, after business hours and removed, inter alia, cash, tools, space heaters and watches. Barbara Simmers testified extensively for the prosecution. After describing the events of the burglaries, the following exchange occurred between Ms. Simmers and the prosecution:

Q. Okay. To go back to the store for just a second, please, did he go into any other structure while you were at the store the second time?
A. He went over to B & B’s.
Q. Now, what is B & B’s?
A. A gas station.
Q. Now, where is that?
A. Right — it hooked right on to it.
Q. Okay. Would that be this area here or up here?
A. Down at the bottom.
Q. Down here?
A. Yes.
Q. So, you’re saying he went into the gas station?
A. Yes.
Q. Did you go in there with him?
A. Yes.
Q. Did you take anything from there?
A. No.
Q. All right. What did he take from there?
A. He took some money out of the drawers and he said he was going to look in there and see if the safe was in there, because he knew they had one.
[Appellant’s counsel]: Your Honor, may we approach?
(Whereupon a side bar was held off the record.)

N.T., 5/19/94, pp. 96-97.

Questioning of Barbara Simmers continued for a short period of time after the side bar. The jury was then recessed, and appellant’s counsel moved for a mistrial out of the presence of the jury.

[APPELLANT’S COUNSEL]: Your Honor, I believe at this time I am in a position to ask for a mistrial. As a matter of fact, I am forced to ask for a mistrial, in light of the fact that this witness testified to the prosecutor’s question that the [appellant] broke into I believe it was B & B gas station, looked for money, I believe she said he took money, and he was also looking for a safe in there.
That is not listed in the information. That is a separate business. It has nothing to do with these charges.
In light of the fact that we’re bringing in other crimes, I think I have to ask for a mistrial, and I believe I am entitled to it.
Also, Your Honor, I believe I have other grounds for a mistrial. Subsequent to that statement the witness testified that the defendant wanted her to burglarize True Value again. I believe that would be the crime of Solicitation. On that, Your Honor, I think I’m entitled to a mistrial.
THE COURT: Well, I’m not going to grant the motion. I think since it was part of the same alleged event that evening I am going to deny your motion. Mr. [Prosecutor], don’t get into that again.

N.T., 5/19/94, pp. 108-109.

In addressing appellant’s argument that evidence of the distinct burglary of B & B gas station was improperly admitted into evidence, we are guided by our Supreme Court’s decision in Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988), wherein our Supreme Court stated:

Evidence of distinct crimes are not admissible against a defendant being prosecuted for another crime solely to show his bad character and his propensity for committing criminal acts. Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1 (1987); Commonwealth v. Morris, supra [493 Pa. 164] at 175, 425 A.2d [715] at 720 [(1981)]. However, evidence of other crimes and/or violent acts may be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to prejudice the defendant by showing him to be a person of bad character. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). As we recently stated in Banks:
[T]he general rule prohibiting the admission of evidence of prior crimes nevertheless
allows evidence of other crime be introduced to prove (1) motive; (2) intent, (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.
Commonwealth v. Morris, supra at 493 Pa. [at] 175 [425 A.2d 715]. This list of “special circumstances” is not exclusive, and this Court has demonstrated it will recognize additional exceptions to the general rule where the probative value of the evidence outweighs the tendency to prejudice the jury. Commonwealth v. Claypool, supra (evidence of defendant’s prior criminal activity is admissible where defendant makes statement about such activity in order to threaten and intimidate victim and where force or threat of force is element of crime for which defendant is prosecuted).
513 Pa. at 350, 521 A.2d at 17. Another “special circumstance” where evidence of other crimes may be relevant and admissible is where such evidence was part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts. Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080, 1082 (1985), quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932). This special circumstance, sometimes referred to as the “res gestae” exception to the general proscription against evidence of other crimes, is also known as the “complete story” rationale, i.e., evidence of other criminal acts is admissible “to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” McCormick, Evidence, § 190 (1972 2d ed.); Carter v. United States, 549 F.2d 77 (8th Cir.1977); United States v. Weeks, 716 F.2d 830 (11th Cir.1983); see also Commonwealth v. Coyle, 415 Pa. 379, 389-91, 203 A.2d 782, 787 (1964) (evidence of other crimes were interwoven with crimes for which defendant was being prosecuted).

Lark, 518 Pa. 303, 543 A.2d at 497.

Applying the law set forth in Lark, supra, we find that the evidence of the burglary of B & B gas station was properly admitted under the “res gestae” exception to the general proscription against evidence of other crimes. The burglary of the True Value and the burglary of B & B gas station occurred proximate in time on the same night. Barbara Simmers was the accomplice in both burglaries. Further, the two buildings are adjacent. Ms. Simmer’s testimony concerning the burglary of B & B gas station was clearly admissible “to complete the story” of the burglary of the True Value hardware store by “demonstrating the history and natural development of the facts.” Lark, 518 Pa. 305, 543 A.2d at 498 (evidence of murder, terroristic threats and kidnapping were all admissible in burglary trial to complete the story of the crime); Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992) (evidence of brutality to victim’s child was admissible in murder case to set forth the history of the events on trial).

Judgment of sentence affirmed.


author: WIEAND, Judge:

text:
    657 A.2d 976
    INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, Appellee, v. Earl HAMPTON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1995.
    Filed April 24, 1995.

      David M. Jakobi, Paoli, for appellant.
    Phillip J. Meyer, Philadelphia, for appellee.

      Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

May the owner/operator of an uninsured motorcycle, who has been injured in a collision with an underinsured vehicle, recover underinsured motorist benefits under a policy issued for a commercial truck owned by his mother and licensed in Delaware? The trial court held that there was no coverage under the terms of the policy of insurance and that such coverage was not required under Pennsylvania law. After careful review, we affirm.

On May 5, 1988, Earl Hampton, Jr. was injured when the uninsured motorcycle which he owned and was operating collided with an automobile being operated by Laura Guilfoil. A claim for Hampton’s injuries was settled for the limits of Guilfoil’s liability coverage. Hampton then made a claim for underinsured motorist benefits under a commercial trucker’s policy which had been issued to his mother, Barbara Hampton, with whom Hampton resided. The policy, which had been issued in Delaware, provided coverage for a 1980 Peterbilt truck and named Barbara Hampton as the insured. The truck was licensed and registered in Delaware and leased by Barbara Hampton to Refiners Transport and Terminal Corporation. The insurance policy had been purchased by Barbara Hampton in Delaware through Refiners Transport specifically for operation of the Peterbilt truck and did not include under-insured motorist coverage. Her husband, Earl Hampton, Sr., used the truck to haul loads for Refiners Transport and often garaged the vehicle at the family’s Pennsylvania residence.

The Insurance Company of the State of Pennsylvania brought an action for declaratory judgment in which it sought an adjudication that Earl Hampton, Jr., was not entitled to underinsured motorist benefits under his mother’s policy of insurance. The trial court held that there was no coverage and granted summary judgment in favor of the insurer. This appeal followed.

Summary judgment may be granted where “there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Britamco Underwriters, Inc. v. Grzeskiewicz, 433 Pa.Super. 55, 58, 639 A.2d 1208, 1209 (1994), appeal discontinued, 538 Pa. 639, 647 A.2d 895 (1994). When considering whether summary judgment is proper, the record must be examined in the light most favorable to the non-moving party, with all doubts resolved against the moving party. Frain v. Keystone Ins. Co., 433 Pa.Super. 462, 466, 640 A.2d 1352, 1354 (1994); Ducko v. Chrysler Motors Corp., 433 Pa.Super. 47, 49, 639 A.2d 1204, 1205 (1994). Summary judgment should be granted only where the right is clear and free of doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). Whether a loss is covered by a policy of insurance is a question of law which may be decided on a motion for summary judgment. Steinbacher v. Page, 410 Pa.Super. 586, 588, 600 A.2d 608, 609 (1991).

When interpreting a contract of insurance it is necessary to consider the intent of the parties as manifested by the language of the instrument. St. Paul Mercury Ins. Co. v. Corbett, 428 Pa.Super. 54, 59, 630 A.2d 28, 30 (1993) (en banc), appeal discontinued, 535 Pa. 658, 634 A.2d 221 (1993). Where the policy language is clear, the contract will be applied as written. Nationwide Mutual Ins. Co. v. Cummings, 438 Pa.Super. 586, 593, 652 A.2d 1338, 1341 (1994). However, where a provision of a contract is ambiguous, it will be construed in favor of the insured. Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 281, 636 A.2d 649, 651 (1994), allocatur denied, 540 Pa. 541, 655 A.2d 508 (1994). To determine whether a contract of insurance provides coverage, the reasonable expectations of the insured must be examined. Frain v. Keystone Ins. Co., supra, 433 Pa.Super. 462, 640 A.2d 1352. An insured may not complain that his or her reasonable expectations were frustrated by policy provisions and limitations which are clear and unambiguous. Britamco Underwriters, Inc. v. Grzeskiewicz, supra, 433 Pa.Super. at 60, 639 A.2d at 1210. See also: Frain v. Keystone Ins. Co., supra, 433 Pa.Super. at 467, 640 A.2d at 1354.

The policy issued by the Insurance Company of the State of Pennsylvania defined the named insured in the following manner:

The term “Named Insured” shall apply individually and only to those persons or organizations that have leased autos to the certified carrier designated on the certificate under a valid, long term lease agreement, and have accordingly been issued a certificate of insurance forming a part of the policy.

The policy defined the vehicles covered by the insurance agreement as

autos scheduled in the certificate of insurance attached to and forming a part of this policy, and for which at the time of loss, there is a valid, long term lease existing with the designated certificated carrier covering that auto.

Under the policy, Barbara Hampton was the only named insured, and the only covered auto scheduled in the certificate of insurance was the 1980 Peterbilt truck. Barbara Hampton conceded that she never expected the policy to provide coverage for her son or to apply to his uninsured motorcycle. It is clear, therefore, that the policy issued to Barbara Hampton does not by its terms provide underinsured motorist coverage for her son while he was operating his uninsured motorcycle. Hampton argues, however, that under Pennsylvania law he is nevertheless entitled to recover underinsured motorist benefits under his mother’s policy.

At the time of Hampton’s accident, the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. 1701, et. seq., required uninsured and underinsured motorist benefits to be included in policies issued or delivered in the Commonwealth as follows:

(a) No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto in amounts equal to the bodily injury liability coverage except as provided in section 1734 (relating to request for lower or higher limits of coverage).

75 Pa.C.S. § 1731(a) (1984).

Hampton argues that, because the Peterbilt truck was frequently garaged in Pennsylvania and because certain language of the insurance policy incorporated coverage required by the state in which the truck was located, the policy held by his mother was required to include underinsured motorist benefits equal to the amount of liability coverage. Because the MVFRL defines an insured to include family members of a named insured, 75 Pa.C.S. § 1702(2)(i), he contends that he is entitled to such coverage under his mother’s policy.

Even if we accepted Hampton’s interpretation of the MVFRL and his assertion that the policy incorporates Pennsylvania law, however, there would be no coverage for Hampton’s injuries. Pennsylvania law does not require insurance policies issued or delivered in other states for vehicles licensed in those states to include underinsured motorist coverage. Moreover, the terms of the policy clearly limit coverage to accidents involving the Peterbilt truck.

The language of the policy on which Hampton relies provides that:

While a covered “auto” is away from the state where it is licensed we will:
....
(2) Provide the minimum amounts and types of other coverages, such as no-fault, required of out-of-state vehicles by the jurisdiction where the covered “auto” is being used.

A careful examination of the MVFRL reveals that it requires uninsured and underinsured motorist coverage to be included in policies of insurance delivered or issued for delivery in Pennsylvania. 75 Pa.C.S. § 1731(a). The liability policy for Barbara Hampton’s truck was purchased through Refiner’s Transport in Delaware for a vehicle licensed and registered in Delaware. There is no provision in the MVFRL requiring that such a policy include uninsured or underinsured motorist coverage.

The fact that the Peterbilt was often garaged in Pennsylvania does not mandate that the policy of insurance covering the truck include underinsured motorist benefits. The Pennsylvania courts have allowed uninsured and underinsured motorist coverage to be restricted in certain circumstances by the clear and express terms of a policy. In Windrim v. Nationwide Ins. Co., 537 Pa. 129, 641 A.2d 1154 (1994), the Supreme Court held that policy language which excluded coverage for an injury suffered by an insured while driving a vehicle not covered by the policy was a valid limitation of underinsured motorist benefits.

In Steinbacher v. Page, supra, 410 Pa.Super. 586, 600 A.2d 608, the plaintiff was injured when her vehicle was struck by a Pontiac Firebird operated by the son of the defendant. The plaintiff sued the defendant’s insurance carrier seeking first party benefits under a policy of insurance for which the defendant was the named insured. Although the defendant’s son was also an “insured” as defined in the MVFRL, the Superior Court held that there could be no liability on the policy because the Firebird was not a “covered auto” and because the policy clearly limited first party benefits to accidents involving covered autos. Id. at 589, 600 A.2d at 610.

In St. Paul Mercury Ins. Co. v. Corbett, supra, 428 Pa.Super. 54, 630 A.2d 28, the Superior Court applied a similar analysis in the context of uninsured and underinsured motorist benefits. In that case, the insured, who had purchased a policy of insurance for an antique Roadster, filed a claim for uninsured motorist benefits after he had been injured while traveling in a different vehicle. The Court held that the policy did not extend uninsured or underinsured motorist coverage to the insured unless he was injured while using the Roadster. The Court distinguished between a policy covering a personal use auto, in which uninsured and underinsured motorist coverage applied to the insured while using other than the insured vehicles, and a specialty or limited use policy, in which uninsured or underinsured motorist coverage applied only when the insured was operating a covered vehicle. Id. at 62, 630 A.2d at 32.

Although the Court recognized that the MVFRL mandated uninsured and underinsured motorist coverage for all policies issued in the Commonwealth, it observed that such coverage could be limited to the “circumstances as provided in the clear language of the policy.” Id. at 59, 630 A.2d at 30. The Court held that the contract language in a policy covering a special use vehicle, which limited the availability of uninsured and underinsured motorist benefits to accidents involving the covered auto, was consistent with the policy behind the MVFRL. Id. at 63, 630 A.2d at 32. Compare: Lastooka v. Aetna Ins. Co., 380 Pa.Super. 408, 552 A.2d 254 (1988), allocatur granted, 522 Pa. 613, 563 A.2d 498 (1989) (uninsured motorist coverage would apply where the policy did not expressly limit benefits to injuries suffered while operating covered autos and where the policy covered several personal use autos).

In the case sub judice, the commercial trucker’s policy was a special use policy which limited coverage to the named insured for a covered vehicle or to others who used the covered vehicle with the permission of the named insured. Read in its entirety the policy limits coverage to injuries relating to the use and operation of the 1980 Peterbilt. The policy does not contemplate coverage where an insured is injured in another context. Thus, even if Hampton were an insured under the terms of his mother’s policy, there would be no coverage, as he was not operating a covered auto at the time of his injury.

To exclude coverage under the facts of this case does not violate the legislative intent in enacting the MVFRL. “[T]he MVFRL reflects a heightened concern by the General Assembly toward increasing consumer costs of automobile insurance attributable in part to motorists who ignore the legal requirement that they insure their vehicles.” Windrim v. Nationwide Ins. Co., supra, 537 Pa. at 133, 641 A.2d at 1156. Moreover, the MVFRL was never intended to apply in a manner that would allow individuals and family members who owned several vehicles to purchase coverage for only one vehicle and receive uninsured or underinsured motorist benefits while operating a vehicle which was not insured. Id. 537 Pa. at 136, 641 A.2d at 1158.

Judgment affirmed.

OLSZEWSKI, J., did not participate in the consideration or decision of this appeal.

      . Hampton also filed a claim for underinsured motorist benefits under a personal auto policy issued to his father. A declaratory judgment action in the federal courts resulted in a decision in favor of the insurer. See: Nationwide Mutual Ins. Co. v. Hampton, 935 F.2d 578 (3rd Cir.1991).


author: DEL SOLE, Judge: BROSKY, Judge,

text:
    657 A.2d 980
    Mary R. HAMILTON and James Hamilton, Appellants, v. John BECHTEL and Shirley Bechtel.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1995.
    Filed April 24, 1995.

      Carla E. Connor, Norristown, for appellants.
    Teresa Fieken Sachs, Philadelphia, for appellees.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

This appeal results from the trial court’s denial of Appellants Motion to Amend Complaint which was filed in order to substitute a new party for the one Appellants erroneously sued. The Motion was filed one year after the statute of limitations had run.

On February 27, 1992, Appellants initiated this lawsuit, alleging in their Complaint that on July 6,1990, Appellant wife was injured as a result of an automobile accident. Appellants averred that Appellee, John Bechtel, negligently operated the vehicle owned by Appellee, Shirley Bechtel, causing it to strike Appellant wife’s vehicle. Appellant husband made a derivative claim for damages as a result of his wife’s injuries and for property damage to his vehicle.

Appellees filed their Answer with New Matter on June 16, 1992, denying that they owned or operated the vehicle which struck the plaintiff, and asserting that the owner and operator of the vehicle was William Bechtel. Although Appellants had been notified that they had sued the wrong party prior to the running of the statute of limitations, they waited until a year after the statute of limitations had expired before petitioning to amend their Complaint. The trial court issued an order on October 14, 1993 denying Appellant’s Petition to Amend Complaint.

Appellants allege that the trial court erred in failing to grant their petition to Amend the Complaint based on the mistaken designation of John Bechtel as the operator of the vehicle rather that his son William. .Appellants assert that they relied on Appellees’ insurance carrier’s representations as to the identity of the operator and that the company allegedly participated in actively defending the case on the merits after having filed its Answer to Appellants’ Complaint.

We disagree. When reviewing a trial court’s ruling on a petition to amend, we must bear in mind that the trial court is granted broad discretion in evaluating the petition. Newcomer v. Civil Service Comm’m of Fairchance Borough, 100 Pa.Commw. 559, 515 A.2d 108 (1986). We will not disturb the sound discretion of the trial court absent an abuse of discretion. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). Pennsylvania Rule of Civil Procedure 1033 provides that:

[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Pa.R.C.P. 1033.

This rule has repeatedly been interpreted as requiring the liberal evaluation of amendment requests in an effort to determine cases based upon their merits rather then a mere technicality. Horowitz v. Universal Underwriters, 397 Pa.Super. 473, 580 A.2d 395 (1990), appeal denied, 527 Pa. 610, 590 A.2d 297 (1990). “The operative test therefore, is ‘whether the right party was sued but under a wrong designation, or whether a wrong person was sued and the amendment was designed to substitute another and distinct party.’ ” Cianchetti v. Kaylen, 241 Pa.Super. 437, 361 A.2d 842, 844 (1976). An amendment is permitted in the former situation but not in the latter. Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864, 865 (1963).

Our Supreme Court held in Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764, 766 (1965) that an amendment of a complaint after the statute of limitations has run cannot be permitted when it attempts to bring in a new and distinct party to the action. The facts in Saracina are analogous to the those in the instant case. The plaintiff in Saracina sued Anthony Cotoia, alleging that he struck plaintiff with his vehicle. In his answer, Anthony denied that he had operated the vehicle and averred that his son, Robert Cotoia had been driving the vehicle when the alleged action occurred. After the statute of limitations had expired on any claim against Robert, plaintiff sought leave to amend and name him as a defendant. The lower court denied the leave to amend, reasoning that because an amendment to the complaint would substitute a new and distinct party after the statute of limitations had expired, this could not be allowed. The Court affirmed the trial court’s reasoning despite the “strong indications in [the] case that Saracina intended to bring suit against the operator of the vehicle.” Id. 417 Pa. 84, 208 A.2d at 766.

Appellants assert that the insurance carrier for Appellees, referred in all its correspondence, to the insured as John Bechtel. Appellants allege that the company’s failure to mention William Bechtel and its active defense of the lawsuit, demonstrates its concealment of the identity of the correct party. Therefore, according to Appellants, Appellees should be estopped from asserting the expiration of the statute of limitations as a defense because they “misled” Appellants about the identity of the driver of the car. Our Supreme Court discussed estoppel and its effect on the statute of limitations in Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). The Court permitted an amendment only where, “through fraud or concealment, the defendant causes the plaintiff to relax his vigilance.” Id. 410 Pa. 405, 189 A.2d at 269.

Appellants rely on DeRugeriis v. Brener 237 Pa.Super. 177, 348 A.2d 139 (1975), appeal dismissed per curiam, 471 Pa. 103, 369 A.2d 1215 (1977) for the proposition that the statute of limitations may be tolled if there is concealment of the true name of the person intended to be sued during the period prior to the running of the statute of limitations. The court in DeRugeriis distinguished the facts with which it was presented from those in Saracina, supra, 417 Pa. 80, 208 A. 764, in that the defendants in DeRugeriis and their agents actively concealed the driver’s true identity until after the statute of limitations had run. They were therefore permitted to amend the Complaint.

Appellants also cite Cianchetti v. Kaylen, 241 Pa.Super. 437, 361 A.2d 842 (1976) for the proposition that a complaint can be amended in a case where all communications with the insurance company referred to the defendant by an incorrect name. We disagree. Our reading of Cianchetti demonstrates that the plaintiffs in that case had miscaptioned their complaint. The complaint alleged that an accident occurred in 1968. The caption for the case named Harry J. Kaylen as defendant, however, Harry J. Kaylen had died in 1965. Henry J. Kaylen was the sole resident at the address given in the Complaint. Henry answered to the name of Harry when served by the sheriff with the Complaint, and all communications with the insurance company treated Henry, its insured, as the real party to the court proceedings. The court held that the defendants and his agents misled the plaintiffs into believing that Harry J. Kaylen was a proper designation for Henry J. Kaylen. The Court in Saracina, supra, 417 Pa. 84, 208 A.2d at 766, stated that “if the right party was in court ... and it was merely his or its designation which was sought to be changed, we would be prone to permit the amendment.” Because the right party was before the court, we permitted the amendment of the Complaint in DeRugeriis.

We find the record in the instant case distinguishes it from the cases cited by Appellants, which allowed the amendment of the complaints. The Bechtels expressly stated in their Answer that the owner and operator of the automobile was William Bechtel. The Answer was filed nearly three weeks before the Statute of Limitations on any claims against William Bechtel had expired. The evidence as revealed in the record demonstrates that William Bechtel’s name was identified on the accident report filed by Appellant wife with the 14th Police District in Philadelphia on the day of the accident. We conclude, therefore, that the trial court did not abuse its discretion. “It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period.” Hayward v. Medical Center, 530 Pa. 320, 608 A.2d 1040, 1042 (1992) citing Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267, 269 (1963). “Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.” Hayward supra, 530 Pa. 323, 608 A.2d at 1042 citing Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983).

Appellants, in the instant case, had the opportunity before the statute of limitations ran, to discover the identity of the correct party. We, therefore, find that the court below was correct in refusing to permit the complaint to be amended in order to change the proper name of the defendant from John Bechtel to William Bechtel.

Order affirmed.

BROSKY, J., files a concurring opinion.

KELLY, J., concurs in the result.

BROSKY, Judge,

concurring.

At the outset, I note that while the current version of Rule 341 is not applicable to this case, this court nonetheless has jurisdiction to consider the merits of the appeal because the order appealed from has the practical effect of placing the litigants out of court with respect to William Bechtel. Hence, the order has sufficient aspects of finality for purposes of appeal. See, e.g., Lafferty v. Alan Wexler Agency, Inc., 393 Pa.Super. 400, 403, 574 A.2d 671, 673 (1990) (order denying plaintiffs motion to amend the complaint to substitute a new party was deemed final and appealable because it effectively put the plaintiff out of court with respect to the only defendant, in his capacity as an individual, who was potentially liable).

Although the result reached by the majority is correct, an extended discussion of the issues is unwarranted. Similar claims regarding the amendment of a complaint so as to substitute a new party after the expiration of the statute of limitations have been previously considered and rejected by this court. See Zercher v. Coca-Cola USA, 438 Pa.Super. 142, 145-46, 651 A.2d 1133, 1134-1135 (1994) and Lafferty v. Alan Wexler Agency, Inc., 393 Pa.Super. at 404-405, 574 A.2d at 673-674 (both of which discuss the applicable law and disallow amendment of the complaint to name a new party-defendant after the expiration of the statute of limitations).

However, a question remains as to whether the identity of the defendant was concealed by appellees such that the amendment should have been allowed in this case. Again, the law regarding this issue has been adequately set forth in Lafferty. See Lafferty v. Alan Wexler Agency, Inc., 393 Pa.Super. at 405-408, 574 A.2d at 674-675. Unlike the defendant in Lafferty, there is no evidence that the appellees here actively misled appellants regarding the identity of the proper defendant. Appellees denied liability and specifically advised appellants, prior to the expiration of the statute of limitations, of the identity of the potentially responsible party. See Appellees’ Answer and New Matter at paragraph 3. In addition, a police report completed on the day of the accident indicates that appellants named William Bechtel as the driver of the vehicle. It is thus apparent that appellants were aware of the identity of the correct defendant, but failed to name him as a party in their complaint. Accordingly, I concur in the affirmance of the trial court’s order.

      . We note that because the action was initiated previous to July 6, 1992, and because the Order was entered before March 1, 1994, this case does not fall under the new Rule of Appellate Procedure 341.


text:
    657 A.2d 983
    Abdelshakoor ELBASHER, Appellant v. SIMCO SALES SERVICE OF PENNSYLVANIA t/a Jack and Jill.
    Superior Court of Pennsylvania.
    Submitted Feb. 16, 1995.
    Filed April 24, 1995.

      James N. Gross, Philadelphia, for appellant.
    Charles W. Craven, Philadelphia, for appellee.
    Before WIEAND, BECK and BROSKY, JJ.
   WIEAND, Judge:

Does an ice cream company owe a duty to an independent contractor, who sells the company’s products from a leased truck along a pre-assigned route, to protect the vendor from criminal assault by unknown third parties? The trial court held that no such duty existed and entered summary judgment for the ice cream company in an action against it by the vendor. After careful review, we affirm.

Abdelshakoor Elbasher and Simco Sales Service of Pennsylvania, t/a Jack and Jill, were parties to an agreement pursuant to which Elbasher purchased Jack and Jill ice cream products from Simco and resold them from a truck leased from Simco along an assigned route. The term of the contract was from week to week, and either party could terminate it upon one week’s notice. The parties are agreed that Elbasher was an independent contractor and not an employee of Simco.

On August 6, 1991, while selling ice cream along his route in Philadelphia, Elbasher was robbed at gunpoint and shot in the stomach. He subsequently sued Simco, contending that the ice cream company had assigned him to a route in a high crime area without adequate protection. When Simco filed a motion for summary judgment, the trial court granted it. Elbasher appealed.

Summary judgment may be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: McDonald v. Marriott Corp., 388 Pa.Super. 121, 124, 564 A.2d 1296, 1297 (1989). When considering a motion for summary judgment, the record, along with all reasonable inferences therefrom, must be examined in the light most favorable to the non-moving party. Mentzer v. Ognibene, 408 Pa.Super. 578, 583, 597 A.2d 604, 607 (1991).

As a general rule, a person is not liable for the criminal conduct of another in the absence of a special relationship imposing a pre-existing duty. Feld v. Merriam, 506 Pa. 383, 392, 485 A.2d 742, 746 (1984). Neither the common law nor the Pennsylvania courts have imposed upon a contractee a special duty to protect independent contractors against the criminal acts of unknown third persons. See: 30 C.J.S., Employer’s Liability § 13. In Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989), the Supreme Court said:

Before a person may be subject to liability for failing to act in a given situation, it must be established that the person has a duty to act; if no care is due, it is meaningless to assert that a person failed to act with due care. Certain relations between parties may give rise to such a duty. Although each person may be said to have a relationship with the world at large that creates a.duty to act where his own conduct places others in peril, Anglo-American common law has for centuries accepted the fundamental premise that mere knowledge of a dangerous situation, even by one who has the ability to intervene, is not sufficient to create a duty to act.

Id. 523 Pa. at 8, 564 A.2d at 1248 (emphasis in original). Absent a duty to act, there can be no negligence. Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 9, 568 A.2d 931, 935 (1990).

Here, appellant has been unable to demonstrate any special relationship imposing upon- the other party to his contract a duty to protect him against the criminal acts of unknown third persons. No such duty is imposed by the terms of the contract between the parties, and none is imposed by the common law. Finally, the record is insufficient to demonstrate a need for police protection in excess of that provided by the City of Philadelphia for other citizens in the same area. We conclude, therefore, that the trial court did not err when it held that appellant could not recover in this action and entered summary judgment in favor of the defendant-appellee.

Affirmed.


author: HESTER, Judge:

text:
    657 A.2d 985
    William MAUTE, Appellant, v. Frederick FRANK, Superintendent Sharon Stickler, Unit Manager Sergeant Booterbaugh, Mr. Palko, C.O. 1 Mr. Schreier, Chaplain Mr. Ramirez, C.O. 1.
    Superior Court of Pennsylvania.
    Submitted Jan. 9, 1995.
    Filed April 24, 1995.

      William Maute, appellant, pro se.
    Robert S. Englesberg, Pittsburgh, for appellees.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   HESTER, Judge:

William Maute appeals from the July 20, 1994 order dismissing this action based on application of the doctrine of sovereign immunity. We affirm in part, reverse in part, and transfer this case to the Commonwealth Court.

Appellant instituted this action against the superintendent and other personnel in charge of the operation of the prison where he is incarcerated, the State Correctional Institution at Cresson, Pennsylvania. Defendant-appellees include Frederick Frank, individually and in his capacity as Superintendent of the facility; Sharon Stickler, individually and in her capacity as Unit Manager of D Block of the facility; Robert Booterbaugh, individually and in his capacity as Sergeant of the Guards of the facility; Rodger Palko, individually and in his capacity as a correctional officer of the facility; Donald Schreier, individually and in his capacity as Chaplain of the facility; and Robert Ramirez, individually and in his capacity as a correctional officer of the facility.

In the complaint, appellant alleges that he has been prevented from practicing his Native American religion in violation of his constitutional right of freedom of religion. Appellant requests both injunctive relief, specifically that appellees be restrained from continuing to prevent him from practicing his Native American religion, and monetary relief.

This appeal followed dismissal of the entire complaint based on application of the doctrine of sovereign immunity and on the trial court’s conclusion that appellant would not be able to amend his complaint to state a viable cause of action.

Appellant contends that appellees are denying him the right to use and carry “items” which he needs “to properly practice his Native American Religion and way of life” and to wear his hair of a length needed to properly practice the religion, in violation of the federal and state constitutions and of federal law applicable to Native Americans, Appellant’s brief at 4. He alleges that the items he wishes to carry or wear are neither illegal nor dangerous.

In light of these allegations, we believe that the trial court applied the doctrine of sovereign immunity too expansively in this action. To the extent that appellant seeks redress against appellees in their individual capacity and requests monetary damages against them individually, sovereign immunity does apply. Borough of Jefferson v. Century III Associates, 60 Pa.Commw. 94, 430 A.2d 1040 (1981), vacated on other grounds, 498 Pa. 57, 444 A.2d 665 (1989). However, it also is clear that appellant has instituted this action against appellees in their official capacities to compel them to allow appellant to exercise the practice of his religion. Further, appellant alleges in the complaint that these appellees were responsible for promulgating and implementing the policies that were applied unconstitutionally in this case.

Thus, this action also is one in the nature of mandamus. Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 493 A.2d 1351 (1985) (action is one lying in mandamus if it is instituted to compel official performance of a duty where there is a legal right in the plaintiff and a corresponding duty in the defendant); Madden v. Jeffes, 85 Pa.Commw. 414, 482 A.2d 1162 (1984) (inmates who asserted that prison officials were violating the inmates’ first amendment rights stated cognizable mandamus claim).

Furthermore, since the complaint states a viable mandamus claim, we will treat that portion of the action as such, regardless of the fact that the complaint is not titled properly as one involving mandamus. See Commonwealth ex rel. Saltzburg v. Fulcomer, 382 Pa.Super. 422, 555 A.2d 912 (1989) (although action was titled as one involving habeas corpus relief, it was clear that petitioner’s action was one for mandamus to compel certain officials to act in conformity with the regulations governing their public body and therefore, was treated as such).

Actions in mandamus are not subject to the defense of sovereign immunity. Madden v. Jeffes, supra, 85 Pa.Commw. 414, 482 A.2d 1162. Accordingly, the portions of the complaint pertaining to appellees in their official capacity and seeking to enforce appellant’s constitutional rights were dismissed improperly based upon application of the doctrine.

The action may proceed on the mandamus claims. Original jurisdiction over such actions lies in the Commonwealth Court of Pennsylvania, Madden v. Jeffes, supra, 85 Pa.Commw. 414, 482 A.2d 1162, and therefore we must transfer this action to that court. Commonwealth ex rel. Saltzburg v. Fulcomer, supra, 382 Pa.Super. 422, 555 A.2d 912.

Order reversed in part. Action transferred to the Commonwealth Court.

      . We express no opinion as to the possible merits of appellant’s mandamus claims. Our decision rests solely upon the fact that the entire complaint improperly was dismissed based upon the doctrine of sovereign immunity.


text:
    657 A.2d 987
    COMMONWEALTH of Pennsylvania, Appellant, v. Daniel YALE.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1995.
    Filed April 25, 1995.

      Scott C. Gartley, Asst. Dist. Atty., Wilkes-Barre, for Com., appellant.
    Gerald Wassil, Wilkes-Barre, for appellee.
    Before DEL SOLE, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge:

This is a Commonwealth appeal from the August 29, 1994 judgment of sentence of one hundred eighty days to twenty-three months home confinement without electronic monitoring, plus fines, community service, and mandatory attendance in an alcohol safe driving school. The sentence was entered in the Luzerne County Court of Common Pleas after appellee, Daniel Joseph Yale, pled guilty to three counts of driving under the influence of alcohol, and to the summary offenses of driving while operating privileges are suspended and accidents involving damage to unattended vehicles. The Commonwealth claims that the trial court erred when it sentenced appellee to an intermediate punishment, specifically home confinement, after he pled guilty to violating 75 Pa.C.S. § 1543(b), since section 9721 of the Sentencing Code prohibits a sentence of intermediate punishment for any offense where a mandatory minimum sentence is applicable unless specifically authorized under section 9763 of the Sentencing Code. We agree and remand this case to the sentencing court for appropriate dispensation.

On January 15, 1994, Wilkes-Barre police officers were dispatched to investigate a reported hit-and-run accident in which two unattended vehicles sustained damage. Tamara Shanahen, an eyewitness to the accident, informed police that she observed a white 1985 Ford Thunderbird strike the parked automobiles. Police traced the ownership of the Thunderbird to Mabel Jones, who lived approximately one block from the accident scene. A police dispatcher telephoned the residence. The female who answered the call and appellee each told the dispatcher that appellee had been operating the Thunderbird. When officers arrived at the Jones’ residence, they were met by an uncooperative Dee Dee Brown, appellee’s girlfriend. Dee Dee Brown denied the officers’ request to search for appellee. However, Mabel Brown, the owner of the Thunderbird informed police that appellee likely had fled to his residence. Officers arrived at appellee’s residence and apprehended appellee in flight. They noted that appellee’s gait was staggered, his speech was slurred, his eyes were glassy, and there was a strong odor of alcohol about him. Appellee was arrested and charged with the crimes described supra. Appellee’s blood alcohol content was .216%.

On June 17, 1994, appellee pled guilty to three counts of driving under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1), (4), and (5), to the summary offense of driving while his operating privileges were revoked, alcohol related, in violation of § 1543(b), and to accidents involving damage to unattended property in violation of 75 Pa.C.S. § 3745. On August 29, 1994, appellee was sentenced on the drunk driving violation to home confinement of one hundred eighty days to twenty-three months without electronic monitoring and immediate parole after the minimum sentence was served. Appellee was ordered to pay the costs of prosecution and a three hundred dollar fine. In addition, he was ordered to perform twenty-five hours of community service and attend an alcohol safe school. On the summary charge of driving with a suspended license, appellee was sentenced to ninety days home confinement, to run concurrent with his drunk driving sentence, and was fined one thousand dollars. On the summary charge of damaging unattended property, appellee was fined fifty dollars. On September 12, 1994, the Commonwealth filed this appeal.

We acknowledge that sentencing is a matter vested in the sound discretion of the trial court, and we will not disturb a sentence absent an abuse of discretion. Commonwealth v. Eicher, 413 Pa.Super. 235, 605 A.2d 337 (1992). However, when minimum sentences are mandated by statute, the court’s discretion is restricted to compliance. Since it appears that the sentencing court has failed to comply with statutory sentencing mandates, we are constrained to conclude that a misapplication of law has resulted and find that an abuse of discretion has occurred. See Commonwealth v. Kocher, 529 Pa. 303, 602 A.2d 1308 (1992). Therefore, we must concur with the Commonwealth’s position.

Section 9721 of the Sentencing Code expressly prohibits a sentence of intermediate punishment for any offense where a mandatory minimum sentence is applicable unless specifically authorized under section 9763 of the Sentencing Code. See 42 Pa.C.S. § 9721(a.1). A violation of 75 Pa.C.S. § 3731(a) requires a mandatory minimum sentence of forty-eight hours imprisonment, plus fines, and a violation of 75 Pa.C.S. § 1543(b) requires a mandatory minimum sentence of ninety days imprisonment, plus fines.

42 Pa.C.S. § 9763(c) provides the following restriction:
A defendant convicted under 75 Pa.C.S. § 3731(e) (relating to driving under influence of alcohol or controlled substance) may only be sentenced to intermediate punishment:
(1) in a residential inpatient program or in a residential rehabilitative center; or
(2) by house arrest or electronic surveillance combined with drug and alcohol treatment.

However, 42 Pa.C.S. § 9763(c) provides no restriction for violations of 75 Pa.C.S. § 1543(b). Therefore, in the absence of an express restriction, it is clear that the mandatory minimum sentence applies.

Appellee’s argument that the sentencing court was in the best position to weigh the facts and interpret the law is inapplicable instantly, since the legislature has dictated the appropriate sentence, and the court was bound by that determination.

We reverse and remand this case to the sentencing court for actions consistent with this decision. Jurisdiction relinquished.