author:
      POPOVICH, Judge:
      BROSKY, Judge,

text:
    476 A.2d 944
    AMERICAN EXPRESS COMPANY, Appellant v. Michael D. BURGIS.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1983.
    Filed May 8, 1984.

      Louis Perez, Jr., Philadelphia, for appellant.
    John M. Younge, Philadelphia, for appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, American Express Company, from the Order of the Court of Common Pleas of Philadelphia County granting appellee’s, Michael D. Bur-gis’, Petition to Open a Default Judgment. We reverse.

The facts consist of the following: On September 21, 1982, appellant filed a complaint in assumpsit alleging that: 1) the appellee was the holder of a credit card issued to him by the appellant; 2) the appellee had made charges to the credit card in the amount of $4,579.00; and 3) the appellant had demanded payment of the amount stated, plus interest and attorney’s fees, but the appellee had failed and refused to pay the sum due and owing.

On September 27, 1982, the complaint was served at the residence of Michael D. Burgis, located at 1318 South 15th Street, Philadelphia. Deputy Sheriff Nader, who effectuated delivery and documented the procedural compliance in the “Sheriff’s Return of Service” slip, checked off the block in juxtaposition to the verbiage indicating that delivery was made at 3:00 p.m. to an “Adult in charge of Defendant’s residence who refused to give [his/her] name or relationship.”

In compliance with Pa.R.Civ.P. 237.1, appellant sent notice to the appellee, by letter dated October 21, 1982, informing him that failure to take any action “within ten days from the date of th[e] notice” could result in the entry of a judgment against him. The absence of any action on the part of the appellee by November 3, 1982, prompted the appellant to file a Praecipe. Therein, he sought the entry of a judgment “by default for want of an Answer” by the appellee in the amount of $6,213.70. Such a judgment was duly entered, with counsel for the appellee filing a Petition to Open on December 29, 1982. In the petition it was alleged, in relevant part, that:

4) Defendant avers that said Complaint was never properly served in accordance with the Rules of Civil Procedure.
5) That the Complaint was never served on him personally or left at his place of dwelling or business.
6) Further, that Defendant did not have the benefit of counsel to inform him of his rights.

In addition, counsel for the appellee submitted a document captioned “Memorandum of Law” that stated no more than: “The Court should be indulgent in opening decrees entered by default where a meritorius [sic] defense exists.” However, nowhere was it asserted of what the “meritorious defense” consisted. In response to appellee’s petition, appellant filed an Answer denying that appellee was not personally served with a copy of the complaint by the Deputy Sheriff. {See Appellant’s “Answer to Defendant’s Petition to Open Judgment,” Points 4-6)

On March 28, 1988, appellee and Deputy Sheriff Nader were deposed. In the lower court’s opinion to this Court, written after the instant appeal was filed, the judge wrote in pertinent part that:

Upon review of the depositions given by the defendant and the process server, this Court has found reason for giving the defendant’s account of the facts credibility. The deposition of Michael Burgis, on both direct and cross examination, indicates that he was out of town on the date of service.
V s'* iff % *
The deposition of the sheriff who served the Complaint, John W. Nader, shows that he cannot remember the person to whom he served the Complaint; nor could he remember if that person was male or female.
' * # V Jjc
It is therefore possible that service was made at the wrong address. Nevertheless, this Court holds that the defendant has a reasonable excuse for not filing an Answer based upon his credibility established by the depositions.

(Lower Court Opinion at 4-5, 6 & 7)

Thereafter, by Order dated April 22, 1983, appellee’s petition was granted for “good cause having been shown[.]” (R. 34) This appeal followed.

At the outset, we note that inasmuch as the lower court’s credibility determination was predicated upon depositions of the appellee and Deputy Sheriff Nader, we are not precluded from making our own assessment as to the believability of the testimony given. On this exact subject, this Court recently has observed that:

... since the lower court’s Order regarding appellee’s domicile is premised upon record [deposition] evidence, i.e., no credibility determination or weight to be attached to a witness’ testimony was required inasmuch as no witnesses testified before the trier of fact. Therefore, since the finding of fact (domicile) was simply a deduction from other facts and the ultimate fact in question is purely a result of reasoning, this Court may draw its own inferences and arrive at its own conclusions from the facts established. In re Estate of McKinley, 461 Pa. 731, 734 n. 1, 337 A.2d 851, 853 n. 1 (1975).

Bell v. Bell, 326 Pa.Super. 237, —, 473 A.2d 1069, 1070 (1984). We see no reason why the aforecited rationale should not be applicable to a review of a lower court’s ruling regarding a petition to open judgment. See American Vending Co. v. Brewington, 289 Pa.Super. 25, 432 A.2d 1032 (1981). Although a determination of credibility is in the first instance within the prerogative of the trial court, even when based upon deposition evidence, this does not foreclose an appellate court from scrutinizing the identical evidence to determine if the ruling entered is supported by the record. See American Vending Co. v. Brewington, supra; see also Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); Commonwealth v. Iannaccio, 304 Pa.Super. 307, 450 A.2d 694 (1982). If there is evidence of an abuse of discretion on the part of the judgment-opening court, the order will be reversed. See Berkowitz v. Kass, 351 Pa. 263, 40 A.2d 691 (1945).

Having placed in perspective the treatment to be accorded record (deposition) evidence, we now turn to the oft-repeated factors that must coalesce to justify the opening of a default judgment in assumpsit cases. They are: 1) the petition to open must be promptly filed; 2) the failure to enter an appearance or file an answer must be excused; and 3) the party seeking to open the judgment must show a meritorious defense. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973).

Since the factors set forth above must coalesce to support a petition to open, the failure of any one factor is fatal to a petitioner’s claim. American Vending Co. v. Brewington, supra. This seemingly inflexible rule has been tempered somewhat by Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982), which is discussed later on in this Opinion. Having said that, our first inquiry is to resolve the notice requirement, for “a court must determine whether such assertion is true before considering any other factors.” Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 466, 416 A.2d 549, 551 (1979).

At the March 28th deposition, appellee testified that on the date in question he was in South Kearny, New Jersey, on business. He produced travel vouchers establishing that on 9/25, 9/26 and 9/27 of 1982 he paid for food and lodging during his stay at a Sheraton Inn 6 or 7 miles from South Kearny. Appellee also stated that he lived alone. However, he did concede that his mother had a key to his residence, but he was “doubtful” that she would have been on the premises at the time in question since he was “pretty sure she was working ... at Leeds Middle School.”

Although appellee admitted to receiving mail on “a regular basis” at his home address, he denied ever receiving a letter from the prothonotary’s office indicating that a judgment had been entered against him. Likewise, appellee denied receiving notice of appellant’s intention to seek a default judgment if some action was not taken by the appellee regarding the complaint. Appellee recounted that he became aware of his legal predicament upon receipt of a letter from a “Consumer Union Legal Aid Society or Service” in late October or late November of 1982. It was “hard” for him “to recall” when exactly he did receive this. When he did, though, he states he contacted an attorney during the first week of December of 1982. It will be recalled that the petition to open was not filed until December 29, 1982, a span of over three weeks after the securement of counsel.

Appellee’s deposition ended with his denial, on cross-examination, of ever speaking to appellant’s counsel by phone on October 11, 1982 “disputing] the amount due .and ... wanting] to get a lawyer[.]”

An examination of Deputy Sheriff Burgis’ deposition reveals that during his 6 years with the Philadelphia Sheriff’s Department his duties involved serving warrants, writs and complaints. When asked to describe the “general” procedure he followed in serving a legal document, especially as it related to the case at bar, he stated:

Ask for a Michael Burgis, or if we have established before we knock on the door that a Michael Burgis is living here, is in fact there, we will still ask for the defendant; and then if the person that is there answers that he does live there, then we will say, “Would you kindly give him this?” or, “Can I see him?” whatever the case may be.

The deputy sheriff went on to recall that the steps just mentioned are the procedures that he follows in “every service” attempted, which includes the one at issue and was described by him as “a perfectly good service.” To buttress this affirmation, we cite the following germane exchange, to-wit:

[Counsel for the appellant:]
Q. When you go out to make service, you check off one of the five blocks here, either you served him personally, or you served an adult member of the family, or an adult in charge of the residence refused to give his relationship, or the manager/clerk of place of lodging, or the agent in charge of office or usual place of business? Those are the ways that you make service; is that correct?
[Deputy Sheriff Burgis:]
A. Ordinarily they are the ways. That’s the only way. They’re all legal services.
£ s]s
Q. Are you satisfied that the Return of Service that you completed and submitted to the Sheriff in this case was true and correct at the time you submitted it?
A. I wouldn’t have served it — 1 wouldn’t have signed it. Of course I’m absolutely sure.

When counsel for the appellee posed to the deputy sheriff the possibility that “if an error was made at the time of the service, there would be no way that [the deputy sheriff] would recall it six months later,” the retort given was that:

Exactly. I mean, I wouldn’t like the word “error” because there is no, really, you know, chance of error. Well, there is certainly chance of error but if the service was not made, I would have certainly marked the adequate — the boxes which are provided.

Albeit the deputy sheriff admitted that, unless he is questioned on a service within a week or so of its effectuation, he has no way of remembering whether he might have made an error in regard to a service in a particular case, he was “absolutely” certain that proper service occurred instantly.

To resolve the divergent accountings proffered by the deputy sheriff, in which he admits to service, and the appellee, in which he refutes service, we look to our Court’s decision in American Vending Co. v. Brewington, supra. As is apropos here, the Court wrote:

Appellants’ contention that they were never served with a Complaint directly contradicts the representation in the Deputy Sheriff’s return that two copies of the Complaint were handed to an adult female in charge of the appellants’ residence. In Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965), our Supreme Court held that, in the absence of fraud, a sheriff’s return which is complete on its face is conclusive and immune from extrinsic attack as to facts of which the sheriff presumptively has personal knowledge. In the present case, the Deputy Sheriff presumptively knew personally that the Complaint was served at 2107 South Sixth Street, that it was served at 2:00 p.m., that it was served on an adult, that the adult refused to identify herself or her relationship with the appellants, and that the adult was in charge of the appellants’ residence. As to these facts the Deputy Sheriff’s return is conclusive. Hollinger v. Hollinger, supra, 416 Pa. at 477, 206 A.2d at 3; Miller v. Carr, 221 Pa.Super. 306, 292 A.2d 423 (1972). What the Deputy Sheriff could not know personally was whether the adult served truthfully represented to him that she was “in charge of [appellants’] residence.” (Oral Deposition of Dennis DeAngelo, 8/28/79, at 6); see Hollinger v. Hollinger, supra; Liquid Carbonic Corp. v. Cooper & Reese, Inc. [272 Pa.Super. 462, 416 A.2d 549 (1979)], supra; Miller v. Carr, supra; see generally 1 Goodrich-Amram 2d, § 1013(b):2. Thus, the issues to be resolved center upon whether there was in fact an “adult female” who accepted service at 2107 South Sixth Street on the 5th of March, 1979, at 2:00 p.m. on behalf of the appellants, and, if so, was she actually in charge of appellants’ residence. As for the former issue, it questions not the veracity of the representations contained in the Deputy Sheriff’s return; rather, it challenges the integrity of the Deputy Sheriff. On this subject, we have held that such an attack cannot be permitted. The reason being, there “is the presumption of propriety on the part of the sheriff and his deputies that forms the basis for holding a sheriff’s return conclusive as to all facts of which a sheriff has personal knowledge.” (Footnote omitted) Miller v. Carr, supra, 221 Pa.Super. at 308, 292 A.2d at 424-25. The purpose for this rule is to eliminate the requirement that the sheriff testify in every case in which service is attacked. Commonwealth ex rel. Schwarz v. Schwarz, [252 Pa.Super. 95, 380 A.2d 1299 (1977) ]. Thus, as to that part of the appellants’ averment assailing the “existence” of the “adult female,” the Court finds such argument to be tenuous. The notation on the Deputy Sheriff’s return that service was made upon “an adult person ... [who] refused, upon request, to give ... her name and relationship to said [appellants],” is based on facts “of which the sheriff presumptively ha[d] personal knowledge, such as when and where the [Complaint] was served[, and not] ... upon information obtained, through hearsay or statements made by third persons or ... upon facts known to the sheriff only through statements m,ade by others.” (Emphasis in original) Hollinger v. Hollinger, supra, 416 Pa. at 477, 206 A.2d at 3. Therefore, the Deputy Sheriff’s return on this point is conclusive. Id. (Footnote omitted) (Emphasis in original)

Id., 289 Pa.Superior Ct. at 29-30, 432 A.2d at 1034-1035.

In the case sub judice, the deputy sheriff filled out a “Sheriff’s Return” slip the same day he served the complaint. Service was documented as having occurred at a specific time, place and location, as well as having been made upon an “adult” in charge of appellee’s residence. Thus, under Brewington, the aforementioned facts are conclusive as to the existence of an “adult” accepting service on behalf of the appellee, since they are the product of Deputy Sheriff Nader’s “personal knowledge” and not based upon hearsay evidence. Further, as to whether sufficient evidence was produced to establish that the “adult” was actually in charge of appellee’s residence, we note that it is appellee’s burden to prove otherwise. Here, appellee has fallen short of establishing such a negative, see Zubris v. Pennsylvania Assigned Claims Plan, 321 Pa.Super. 83, 467 A.2d 1139 (1983) (Concurring Opinion by POPOVICH, J.), calling for a conclusion that a “fraud” was perpetrated by the deputy sheriff so as to invalidate his “Sheriff’s Return.” Accordingly, appellee has not carried his burden of proof establishing one of the tripartite requirements necessary to warrant the opening of a default judgment. Id.

We note that nowhere in the record is there evidence that a “meritorious defense” was proffered by the appellee prior to the issuance of the lower court’s Order. Rather, as is evident from a review of the lower court’s Opinion, appellee raised the defense of not owning an American Express credit card in his Answer. This was filed on May 12, 1983, which was after the entry of the Order opening the judgment.

Lastly, we disagree with the lower court that “the two month period was needed [by the appellee] to become aware of the entry of default ... and to allow him to secure adequate counsel.” Our perusal of the record (e.g., complaint, answer and depositions) lends credence to a reversal and reinstatement of the default judgment. We find that appellee had notice of the impending, and ultimate, Order entered granting default so as to defend against its issuance. Appellee was dilatory in seeking to insulate his rights, and, therefore, will not be heard to complain hereafter.

We observe that a review of the meritoriousness of appellee’s defense and the promptness of his response to the entry of the default judgment is consistent with this Court’s recent en banc decision in Provident Credit Corp. v. Young, supra. Therein, Judge (now President Judge) Spaeth, speaking for a majority of the Court, conceded that on occasion there has been a dispensation with an inquiry into the other two prongs of the tripartite test where one of the three requirements for opening a judgment has not been met. However, in support of considering how meritorious a defense is and/or if a default is reasonably explained, despite the fact that “actual knowledge of the suit” by the party seeking to open is placed into question, the Court wrote:

[W]here some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case. Instead the court should consider each part in the light of all of the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience.
The correctness of this conclusion is confirmed, not only by general considerations of how a court of equity should proceed, but by settled practice when the default judgment has been entered in an action in trespass. In such a case it is only necessary that the petition to open be promptly filed and the default reasonably explained; it is not necessary to plead a meritorious defense. However, “while a good defense would normally not be required in a trespass action, where present it can at least qualify as an equitable consideration favoring the opening of judgment.” This rule is repeated in many of our cases. Thus, in a trespass case the court may properly consider how meritorious is the defense in deciding whether the petition to open was filed promptly enough, or the default reasonably explained. We see no basis for saying that in an assumpsit case the court may not do the same. (Citations omitted)

Id. 300 Pa.Super. at 131, 446 A.2d at 264.

Accordingly, under the imprimatur of Young, finding all three prongs necessary to justify the opening of a judgment missing from appellee’s arsenal of defenses, the Order granting the opening of the default judgment is reversed. Judgment is to be entered against the appellee and in favor of the appellant as if the default judgment had never been removed. Jurisdiction is relinquished.

BRQSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I agree with the majority that the petition to open should not have been granted, but wish to clarify the context within which we are considering the issues of whether appellant raised a meritorious defense and the promptness of his response to the entry of the default judgment. I wish to emphasize that it was only because of our initial determination that proper service of the complaint was made that it became necessary to address these issues.

Ordinarily, three factors must coalesce before a default judgment can be opened: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense. Where, as here, however, a defendant asserts that he was never served with the complaint and therefore had no notice of the proceedings against him, we believe that a court must determine whether such assertion is true before considering any other factors. If valid service has not been made and the defendant is wholly without notice of the proceedings against him, then the court has no personal jurisdiction over the defendant and is without power to enter a judgment against him. We have not hesitated to open judgments and give defendants an opportunity to file answers in cases where process was not properly served.

Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 466, 416 A.2d 549, 551 (1979) (citations omitted) (emphasis added).

Thus, if we had determined that valid service had not been made, it would have been pointless to also consider whether the petition to open was timely filed and a meritorious defense shown. This is so because even were we to consider these requirements and find that they had not been met, the judgment would have to be opened, nevertheless, since the lower court would never have had jurisdiction due to the invalid service. Id.; see Mischenko v. Gowton, 307 Pa.Super. 426, 453 A.2d 658 (1982) (Brosky, J.).

On the other hand, the argument could also be made that having found a valid service we again need not consider the requirements of a meritorious defense and a timely filed petition because the absence of a reasonable excuse for the default (the claimed failure to serve the complaint) precludes the opening of the judgment. However, as noted by the court in Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982), a valid service does not always show actual knowledge of the suit. Consequently, even where proper service is found, a reasonable excuse for the default may still exist and, as explained by Young and the majority, that determination must be made in conjunction with an examination of the other requirements of the tripartite test.

Thus, the rule that emerges from the preceding discussion is as follows: If in considering a petition to open a judgment a court concludes that an assertion of invalid service is true, the judgment must be opened without consideration of any other factors. If, however, the court concludes that proper service was made, it must then consider all three parts of the tripartite test in the light of all of the circumstances and equities of the case before deciding whether to open the judgment.

      . We note that Deputy Sheriff Nader testified to serving “[m]aybe 5, 6 thousand complaints” six months after the period that he purportedly served the complaint to an adult at appellee’s residence. We believe that such a lapse of time, when intermingled with the voluminous services perfected by the deputy sheriff, is justification for his inability to recall with clarity to whom he had served the complaint in question. See American Vending Co. v. Brewington, 289 Pa.Super. 25, 31 & n. 4, 432 A.2d 1032, 1035 & n. 4 (1981).


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    476 A.2d 952
    John DE SANTO, Appellant, v. William BARNSLEY.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1983.
    Filed May 11, 1984.

      Rosalie Davies, Narberth, for appellant.
    Howard A. Finkelman, Philadelphia, for appellee.
    David W. Webber, Philadelphia, amicus curiae Lambda Legal Defense and Education Fund, Inc.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   SPAETH, President Judge:

This case presents the novel issue of whether two persons of the same sex can contract a common law marriage. We hold that they cannot, as a matter of law. The order of the trial court dismissing appellant’s complaint for divorce is therefore affirmed.

On February 16, 1981, appellant, John DeSanto, filed a complaint for divorce against appellee, William Barnsley. In his complaint appellant alleged that on June 14, 1970, in a ceremony before friends, he and appellee entered into a common law marriage, and that then they lived together until November 15, 1980. Appellant requested a divorce, equitable distribution, alimony, alimony pendente lite, and costs. Appellee, in his answer, denied that he and appellant were ever married or capable of being married. Appellant filed a petition to determine marital status, pursuant to section 206 of the 1980 Divorce Code, and after a hearing on the petition, the trial court, on February 17, 1982, entered a decree dismissing appellant’s complaint. The decree was accompanied by an opinion holding that as a matter of law two persons of the same sex cannot contract a common law marriage. Appellant appealed to this court. After a pre-submission conference, and upon agreement of the parties, the case was remanded to the trial court, and on September 2, the court issued another opinion, in which, after discussing the credibility of the witnesses who had testified at the hearing on appellant’s petition to determine marital status, the court “h[e]ld that [appellant] has not met the burden of proof sufficient to establish a common law marriage, even if two persons of the same sex could establish a marriage relationship.” Slip op. at 5.

Appellant argues: (1) that the trial court erred in holding that as a matter of law two persons of the same sex cannot contract a common law marriage; (2) that to deny the validity of common law marriage between two persons of the same sex is proscribed by the Pennsylvania Equal Rights Amendment, Pa. Const., Article I, Section 28; and (3) that the trial court erred with respect to certain of its findings of fact and evidentiary rulings. On the first argument, we find no error. We do not consider the second and third arguments. Appellant has waived the second argument, for he did not make it to the trial court; and given our conclusion that as a matter of law he and appellee could not contract a common law marriage, it is of no importance whether the trial court erred in its findings and evidentiary rulings.

-1-

The issue of whether two persons of the same sex may contract a common law marriage has not been addressed in Pennsylvania, nor, to our knowledge, in any other jurisdiction. Other jurisdictions have considered whether statutory or ceremonial marriage can be entered into by same-sex couples, and have uniformly held that it cannot be. One such case is Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). In Baker, two males applied for a marriage license and the clerk declined to issue one on the sole ground that they were of the same sex. The Minnesota Supreme Court affirmed the trial court’s order quashing a writ of mandamus, and specifically directed that a marriage license not be issued. The court rejected the argument that the absence of an express statutory prohibition against same-sex marriages showed a legislative intent to authorize such marriages. The court found that the statute used “marriage” as a term of common usage, “meaning the state of union between persons of the opposite sex,” id. at 311, 191 N.W.2d at 186, and referred to dictionary definitions. Supporting this interpretation of legislative intent was the fact that the marriage statutes dated back to territorial days, when “marriage” was thought of by the original draftsmen as heterosexual; also supportive was the heterosexual import of many words in the statute before the court, such as “husband and wife” and “bride and groom.” In Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499 (1971), the court held that a marriage ceremony between two males did not in fact or in law create a marriage. The plaintiff sought a declaration of marital status because, while he had thought he was marrying a woman, the defendant turned out to be a man. The court, looking to case law and dictionary definitions, said that “marriage is and always has been a contract between a man and a woman.” Id. at 984, 325 N.Y.S.2d at 500. In Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187 (1974), the court held that Washington’s marriage statutes prohibit same-sex marriages, and in Jones v. Hallahan, 501 S.W.2d 588 (Ky.App.1973), the court held that while Kentucky statutes neither specifically prohibit nor authorize issuance of a marriage license to same-sex couples, the appellants were prevented from marrying “by their own incapability of entering into a marriage as that term is defined,” id. at 589. Finally, in reviewing the denial of “immediate relative” status for immigration purposes to a male Australian citizen who went through a purported marriage ceremony with a male American citizen, a federal court rejected the claimed marriage under both Colorado and federal statutory law. Adams v. Howerton, 486 F.Supp. 1119 (C.D.Cal.1980); aff'd, 673 F.2d 1036 (9th Cir.1982), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982).

In citing these cases we recognize that, as framed by appellant, the issue we are asked to decide is not whether the Pennsylvania Marriage Law, 48 P.S. § 1-1 et seq., permits or prohibits marriage between two persons of the same sex. For appellant does not claim that he and appel-lee have a valid statutory marriage. Rather, he seeks to distinguish common law marriage from statutory marriage. Brief for Appellant at 8. Nevertheless, same-sex statutory marriage cases are pertinent to our discussion, for “marriage” presumably has the same meaning whether it is preceded by “common law” or “statutory”. Moreover, as will appear, the limits of common law marriage must be defined in light of the limits of statutory marriage.

As in other states, Pennsylvania’s Marriage Law does not define marriage, nor do we have any case that specifically states that “marriage,” either common law or statutory, is limited to two persons of opposite sex. Nevertheless, the inference that marriage is so limited is strong. The Marriage Law refers to the “male and female applicant,” 48 P.S. § 1-3, and the cases assume persons of opposite sex. The following quotation from Manfredi Estate, 399 Pa. 285, 159 A.2d 697 (1960), is illustrative, both for its use of words with heterosexual import in relation to marriage, and for the implication that “marriage” has the same meaning in its common law and statutory forms:

Marriage in Pennsylvania is a civil contract by which a man and a woman take each other for husband and wife. There are two kinds of marriage: (1) ceremonial; and (2) common law. A ceremonial marriage is a wedding or marriage performed by a religious or civil authority with the usual or customary ceremony or formalities. It is too often forgotten that a common law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words — not in futuro or in postea, but — in praesenii, uttered with a view and for the purpose of establishing the relationship of husband and wife

Id., 399 Pa. at 291, 159 A.2d at 700 (citations omitted). Other common law marriage cases that speak in terms of establishing the “relationship of husband and wife” include: In re Estate of Gower, 445 Pa. 554, 284 A.2d 742 (1971); McGrath’s Estate, 319 Pa. 309, 179 A. 599 (1935); Commonwealth v. Stump, 53 Pa. 132 (1866); Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Super. 541, 345 A.2d 914 (1975); Baker v. Mitchell, 143 Pa.Super. 50, 17 A.2d 738 (1941). The implication of these cases that common law marriage is limited to two persons of opposite sex is reinforced by definitions of “marriage” from such sources as Black’s Law Dictionary and Webster’s Dictionary. We therefore conclude that up until now common law marriage has been regarded as a relationship that can be established only between two persons of opposite sex.

Appellant argues that the trial court “confuse[d] the ecclesiastical and the common law marriage.” Brief for Appellant at 10. According to appellant, “[t]he church and ecclesiastical courts were only interested in regulating morality and upholding Judeo-Christian teaching,” id., whereas common law marriage has always been a judicial recognition of an oral contract, designed to legitimize children, protect inheritances, and more recently, to accord benefits under governmental programs like Social Security or state statutes like the Divorce Code, id. This function of common law marriage — to protect long-term stable relationships — is equally well-served, appellant argues, whether the marriage be between two persons of opposite sex or the same sex. Given our conclusion that up until now common law marriage has been regarded as a relationship that can be established only between two persons of opposite sex, what appellant’s argument comes down to is a request that we expand common law marriage to include a contract between two persons of the same sex. The question, therefore, is whether any sound reason supports such an expansion.

The history of common law marriage argues against expansion. Judicial recognition of common law marriages was a historical necessity, since the social conditions of pioneer society made access to clergy or public officials difficult. Freedman, The Law of Marriage and Divorce in Pennsylvania, § 48 (2d ed. 1957); see also Note, The Decline and Fall of Common-Law Marriage in Pennsylvania, 18 Temp.U.L.Q. 264 (1944). But as conditions changed, so did the attitude of the courts: “The law of Pennsylvania recognizes common law marriages. But they are a fruitful source of perjury and fraud, and, in consequence, they are to be tolerated, not encouraged; ...” Baker v. Mitchell, supra, 143 Pa.Superior Ct. at 54, 17 A.2d at 741 (emphasis in original). In Buradus v. Gen. Cement Prod. Co., 159 Pa.Super. 501, 48 A.2d 883 (1946), aff'd, 356 Pa. 349, 52 A.2d 205 (1947), we noted “a growing judicial impatience ... and a progressive change in judicial view requiring higher degrees of proof where [common law] marriages are asserted.” Id., 159 Pa.Superior Ct. at 503, 48 A.2d at 884. Courts were admonished to look upon the professed contract with “great scrutiny,” and it was said that the proponent of the marriage has a “heavy burden.” Manifredi Estate, supra 399 Pa. at 292, 159 A.2d at 700. To expand common law marriage to include a contract between two persons of the same sex would be, not simply inconsistent with such reluctant toleration, but an about-face.

Nor do considerations of social policy support expansion of common law marriage. Certainly the law should take into account changes in social relationships, but that may be done without expanding common law marriage. In Knauer v. Knauer, 323 Pa.Super. 206, 470 A.2d 553 (1983), this court, following “palimony” cases from other states, held that “agreements between non-married cohabitors fail only to the extent that they involve payment for sexual services.” Id., 323 Pa.Superior Ct. at 228, 470 A.2d at 564. In permitting recovery on such an agreement, we emphasized that our decision was based on principles of contract law, and said that “we do not view this as a way of effectively creating a common law marriage where there is none. While the damages awarded [in an action on an agreement between cohabitors] may to some extent parallel a property settlement following a divorce, the two are not the same. Parties to a common law marriage are legally married and can, by virtue of their status as spouses, make claims to property even absent an agreement. Cohabitors, on the other hand, acquire no automatic claims to property from cohabitation.” Id., 323 Pa.Superior Ct. at 228, 470 A.2d at 564.

Finally, attention to the respective roles of the Legislature and the judiciary compels the conclusion that common law marriage should not be expanded. Generally speaking, statutory marriage and common law marriage have been alternatives, common law marriage being seen not as competing with statutory marriage but, rather, as substituting for it when social conditions made obtaining a marriage license impractical. See Freedman, supra. Appellant, however, would have us create a form of common law marriage, not in response to the impracticality of obtaining a marriage license, but in response to the impossibility of obtaining one. For we have no doubt that under our Marriage Law it is impossible for two persons of the same sex to obtain a marriage license. See cases cited supra, pp. 185-186. If, under the guise of expanding the common law, we were to create a form of marriage forbidden by statute, we should abuse our judicial power: our decision would have no support in precedent, and its practical effect would be to amend the Marriage Law — something only the Legislature can do.

-2-

Appellant argues that to deny the validity of common law marriage between two persons of the same sex is proscribed by the Pennsylvania Equal Rights Amendment. We may not consider this argument unless it was raised in the trial court. See Irrera v. Southeastern Pennsylvania Transportation Authority, 231 Pa.Super. 508, 331 A.2d 705 (1974).

The argument was not raised in appellant’s complaint or petition to determine marital status. Nor was it raised in any of appellant’s three submissions to the trial court. The first submission, entitled “Plaintiff’s Memorandum of Law in Support of Petition to Determine Marital Status,” contains a section entitled “A Constitutional Overview,” but this section does not mention the Pennsylvania Equal Rights Amendment. Rather than raise any constitutional arguments, appellant accepts the decision in Baker v. Nelson, supra, upholding the denial of a marriage license to two males, and argues that common law marriage should be distinguished from statutory marriage — the same argument that we have considered in the preceding part of this opinion, and have found without merit. The second submission, entitled “Plaintiff’s Supplemental Memorandum of Law in Support of Petition to Determine Marital Status,” cites two Executive Orders of Governor Shapp, one committing the Governor’s administration to work against discrimination on the basis of affectional preference, and the other establishing the Council for Sexual Minorities. The Supplemental Memorandum argues that to allow opposite-sex couples the benefits of common law marriage while denying those benefits to same-sex couples would be the kind of discrimination these Executive Orders were designed to help to eliminate. Again, no mention, is made of the Equal Rights Amendment. Finally, accompanying the Supplemental Memorandum is a brief discussing the evidence adduced at the hearing before the trial court, in the context of Pennsylvania common law marriage cases.

It is therefore apparent that appellant did not argue the Equal Rights Amendment to the trial court. Accordingly, we shall not consider his argument on the Amendment now.

-3-

Appellant also argues that the trial court erred with respect to certain of its finding of fact and evidentiary rulings. The gist of appellant’s argument is that the evidence, properly viewed, shows that he and appellee did exchange words in the present tense with the intention of entering into a common law marriage. However, we shall not consider this argument either, for whatever the parties’ words and intentions, they could not enter into a common law marriage.

Affirmed.

      . The Fifth Edition includes a citation to the Singer v. Hara, supra, definition of marriage as the "legal union of one man and one woman as husband and wife.” Black’s Law Dictionary 876 (5th ed. 1979). It then repeats the definition from the Fourth Edition: "Marriage is the legal status, condition, or relation of one man and one woman united in law for life ... for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.” Id. The Fourth Education was cited by the courts in Jones v. Hallahan, supra, and Baker v. Nelson, supra.

      The definition of common law marriage contains the following: "Such marriage requires a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, co-habitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations.” Black’s Law Dictionary 251 (5th ed. 1979).

        . "The state of being united to a person of the opposite sex as husband or wife.” Webster’s Third New International Dictionary 1384 (1976).

      . The challenged findings are:
      1. Appellant did not recall the exact words said at the ceremony.

        2. Certain wedding anniversary cards did not constitute indirect evidence that a marriage had taken place.
      3. The testimony of one Paul Hill was not that of a hostile witness.
      4. Appellant’s testimony was not credible.
      The challenged rulings are:
      1. The trial court’s refusal to characterize one Alexander Contino as a hostile witness, and
      2. The trial court’s refusal to hear expert testimony on "gay lifestyles.”


author: BROSKY, Judge: CAVANAUGH, Judge, POPOVICH, Judge,

text:
    476 A.2d 957
    Alice S. GRONER v. Bruce E. GRONER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1983.
    Filed May 11, 1984.

      Donald S. Himmelreich, Easton, for appellant.
    Richard J. Shiroff, Easton, for appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   BROSKY, Judge:

This is a consolidated appeal from orders setting the amount of child support, alimony pendente lite and counsel fees and costs to be paid by appellant. Five issues are raised for our review: first, that the order regarding alimony pendente lite, counsel fees and costs is appealable; second, that the alimony pendente lite award should not have been made retroactive; third and fourth, that the court below erred in imputing an excessive amount of appellant’s corporate assets as personal earning capacity and in not considering appellee’s assets vis-a-vis the alimony pendente lite (including counsel fees and costs) and child support orders respectively; and fifth, that the court below should have held a de novo hearing as requested on the child support issue.

We find that the award of alimony pendente lite is appealable at this time. The retroactive effect given the alimony pendente lite award is waived. We find no abuse of discretion in the amount of the award of the alimony pendente lite; but do not reach the propriety of the support award as we remand for a hearing on that claim.

The result, then, is that the award is affirmed in part — as to the alimony pendente lite order and as to the award of counsel fees and costs — and remanded in part — as tó child support order for a de novo hearing.

I.

The first issue, regarding the appealability of the grant of an award of alimony pendente lite, may be quickly disposed of. It has long been the rule in this Commonwealth that such an order is interlocutorily appealable. Rutherford v. Rutherford, 152 Pa.Super. 517, 32 A.2d 921 (1943). This has recently been held to be the practice under the Divorce Code. Lowenschuss v. Lowenschuss, 327 Pa.Super. 120, 475 A.2d 127.

II.

The second issue, dealing with the retroactivity of the alimony pendente lite award, has been waived through its absence below. Overs v. Overs, 294 Pa.Super. 191, 439 A.2d 815 (1982).

III.

The third and fourth issues deal with alleged court errors in imputing an excessive amount of appellant’s corporate assets as personal earning capacity and in not considering appellee’s assets vis-a-vis the alimony pendente lite and child support orders, respectively. In Shuman v. Shuman, 195 Pa.Super. 155 at 157-8, 170 A.2d 602 at 602-3 (1961) this Court stated the standard for appellate review in these cases.

How much shall be allowed as alimony and for counsel fees and expenses is a matter of judicial discretion and the validity of the order depends upon the proper exercise of that discretion... •
This court will not reverse an order of the court below “except for plain abuse of discretion” ... Brong v. Brong, 129 Pa.Super. 224, 195 A. 439.

A review of the opinion of the Court of Common Pleas and of the record reveals no such abuse of discretion and, accordingly, we reject appellant’s claims as to the amount of the alimony pendente lite award. However, since we are remanding for a hearing on the child support matter, we do not reach the merits of appellant’s arguments vis-a-vis the support award.

IV.

Appellant also contends that the court below erred in failing to hold a requested de novo hearing on the child support matter. We agree.

It is not disputed that appellant requested a de novo hearing before the trial court after the determination made by the court’s domestic relations office; nor that such a hearing did not take place. Two matters remain: does appellant have a right to a de novo hearing and, if so, were any circumstances present which would prevent appellant asserting that right?

The answer to the first enquiry is in the affirmative. The applicable rule reads:

(i) If the court does not enter an order under subdivision (d) or (f) within five days of the conference, or if an order is entered and a demand for a hearing before the court is filed, there shall be a hearing de novo before the court. The domestic relations section shall schedule the hearing and give notice to the parties.

Pa.R.Civ.P. 1910.11(i). The circumstances which the rule requires for its activation were met here. The language of the rule is clear — appellant has a right to a de novo hearing.

Considering the second enquiry, we find that no events occurred which defeated that right. The opinion of the court below offers two theories in support of the absence of a hearing. First, the court states that appellant requested a general continuance and then failed to act to bring the case before the court. This assertion is not supported by the record. As facts appearing in the opinion of the court below do not become of record by virtue of their inclusion in the opinion, we cannot affirm on those grounds. Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292 (1983). Second, the court stated that a hearing was unnecessary as it had based its determination upon the record into which appellant should already have inserted all relevant material. In response, appellant argues that it was not harmless error to deprive him of a hearing in that he needed to rebut the allegedly inaccurate computations made by the domestic relations office. Even more persuasively he contends that the rule doesn’t contemplate such a reliance upon the record as a substitute for the de novo hearing. Indeed it does not. The rule is directive, not elective, and appellant has an enforceable right to his day in court.

The child support matter is remanded for a de novo hearing and we relinquish jurisdiction.

V.

While not before us on appeal at this time, we choose to address another order entered in this case. After the instant appeal was taken, the court below entered a super-sedeas of the payment of child support conditioned upon the posting of security equal to the amount that would otherwise be paid over an 18 month period.

That pertinent rule reads:

Rule 1731. Automatic Supersedeas of Orders for the Payment of Money.
An appeal from an order involving solely the payment of money shall, unless otherwise ordered pursuant to this chapter, operate as a supersedeas upon the filing with the clerk of the lower court of appropriate security in the amount of 120% of the amount found due by the lower court and remaining unpaid. Where the amount is payable over a period of time, the amount found due for the purposes of this rule shall be the aggregate amount payable within 18 months after entry of the order.

Pa.R.A.P. 1731.

In 1979, an explanatory note was added to this rule.

Where an order, such as a support order, provides for payment of money over time, the amount payable during the first 18 months is made the amount on which the automatic supersedeas bond is calculated.

This comment would appear to sanction the placing of a supersedeas on a support order. Nonetheless, we conclude that it is improper to place a supersedeas on a support order.

First, we note that the comments to the rules are not the rules themselves and are not binding upon us. Commonwealth v. Taylor, 254 Pa.Super. 211 at 214, 385 A.2d 984 at 985 (1978); Commonwealth v. LaMonna, 473 Pa. 248 at 259, 373 A.2d 1355 at 1360 (1977) (Eagen, C.J., concurring).

Recognizing that our application of Rule 1731 may be guided by the comment but that we are not fettered by it, we next turn to the rules governing the interpretation of the rules.

In ascertaining the intention of the Supreme Court in the promulgation of a rule, the courts may be guided by the following presumptions among others:
(a) That the Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable.

Pa.R.Civ.P. 128. The previous rule also tells us to look to the consequences of a particular interpretation. Pa.R.Civ.P. 127(c)(6). Our belief that it is unwise to grant a supersedeas on bond to a support order is thus within the scope of our interpretive function; for the consequences of applying the rule to that particular situation would be clearly unreasonable.

The case law on this point is meager, but we quote with approval a case under the preceding statute, 12 P.S. § 1138.

If a supersedeas is allowed he will be excused from paying her anything until the determination of his appeal by the Superior Court. Wife plaintiff would thereby be deprived of the ability to contest the appeal and to carry on her action. An exceedingly bad precedent would be established, defeating the very purpose for which courts are empowered to grant the wife in divorce proceedings appropriate counsel fees and alimony pendente lite. The very term “alimony pendente lite” means support during litigation, and not the mere possibility of collecting something after the litigation, or any especial phase of it, has ended.
The purpose is obviously to prevent a husband’s defeating his wife’s action by the simple process of making it financially impossible for her to carry it on.
Furthermore, the order for alimony and counsel fees differs essentially from the ordinary order or judgment for the payment of money, and we cannot believe the legislature, by the Act of May 19, 1897, intended to strip the wife in a divorce proceeding of the protection the law has for so long afforded her.

Simpson v. Simpson (No. 2), 3 D & C2d 665 at 666-7 (1954). While Simpson involved alimony pendente lite and counsel fees, its rationale is totally transferable to the situation before us, a child support order. A mother who is destitute for lack of child support funds will be just as unable to enforce her rights in the courts as one who is destitute for lack of alimony pendente lite.

Even if the appellee were not still involved in pending litigation the suspension of the child support payments would still be reprehensible. Those responsible for the care of children must make expenditures other than attorney’s fees on the child’s behalf. The Supreme Court of Arkansas on an entirely parallel matter noted the distinction between the ordinary application of the rule and its operation in a situation like the one before us.

The legislature has not attempted to say exactly when an appellant is “entitled” to a stay on appeal.
Ordinarily a writ of supersedeas is obtainable as a matter of course with respect to a judgment for damages in a contract or tort action. In that situation the appellee is adequately protected by a supersedeas bond guaranteeing that his judgment, if it is affirmed, will be paid in full, with interest and court costs. But other considerations must be taken into account with respect to a decree for alimony or child support. Despite the dissolution of the marriage the husband may still be responsible for the support of his former wife and his children. Those dependents are not to be left penniless during the pendency of an appeal____
In a recent case, Crowder v. Butt, our per curiam order of September 7, 1959, read in part: “The trial court had discretion and power to fix custody pending our decision. There is no absolute right of supersedeas in child custody cases.” We adhere to that view ...

Goodin v. Goodin, 240 Ark. 541, 400 S.W.2d 665 at 666-7 (1966).

We ourselves adhere to the view expressed in Goodin. Indeed, it shocks the conscience to contemplate the injustice worked upon the erstwhile recipients of the superseded support order. Is it to be seriously advanced that they can be made whole through the eventual lump sum payment should appellant not prevail on appeal? We think not. These children can hardly postpone their daily needs for food, clothing and shelter for a year or more (pending the outcome of the appeal). The law in its ultimate vitality — its desire to do the right thing — must recognize the crucial distinction to be made between a civil judgment in a tort or contract case and a family support order.

As noted above, we have no jurisdiction over the superse-deas order as the appeal, if any, from the supersedeas is not now before us. For reasons which we would hope are obvious at this juncture, we have proceeded nonetheless to comment upon the supersedeas. This action is taken in the hope that the court below here, and other courts, will be moved to rescind already granted supersedeas orders and to not grant those which may be petitioned in the future.

The order of the court below is affirmed as to the award of counsel fees and costs; the appeal is quashed as to the appeal of the grant of alimony pendente lite; and, finally, remanded in part for a de novo hearing on the child support matter. Jurisdiction relinquished.

CAVANAUGH and POPOVICH, JJ., file concurring statements.

CAVANAUGH, Judge,

concurring:

I concur in the result, but would not reach the issues raised sua sponte in Section V of the majority opinion.

POPOVICH, Judge,

concurring:

I concur in the result, but I vehemently dissent from the majority’s sua sponte and unjustified inquiry into the su-persedeas order, which issue was not raised, argued or briefed below and concerning which we do not have the benefit of a lower court opinion. Indeed, the greater part of the majority opinion is composed of dicta which highlights at random arid expands upon an issue which is “... not before us on appeal at this time.” (Majority at 195-196). Silvestri v. Slatowski, 423 Pa. 498, 224 A.2d 212 (1966).

      . Appellant responds that he did not request a general continuance, but acceded to the entry of a temporary order pending the hearing.

      . In order to not leave the children destitute in the interim, the child support payments will continue as before, pending a new decision by the court below after the de novo hearing.

      . See 3 Goodrich-Amram 2d 337 and Stein v. Stein, 109 Montg.Co.L.R. 250 (1981).

      . We note that notwithstanding every effort of this Court to expedite cases of this type, the child support order was entered on December 15, 1982; that an appeal was taken in a timely fashion; that the supersedeas order was entered on January 24, 1982 and an opinion filed below on February 16, 1983; that the bond was posted suspending payment of child support on April 15, 1983; that this case was argued before this Court on December 8, 1983 and an opinion filed less than 120 days later. The point is that the supersedeas ■was in effect for more than 11 months and, if the bond had been posted as soon as possible, that the supersedeas could have been in effect for nearly a year!


author: CERCONE, Judge:

text:
    476 A.2d 961
    Donna J. MELLOTT v. Chalmer M. MELLOTT, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1983.
    Filed May 11, 1984.

      Gary D. Wilt, McConnellsburg, for appellant.
    George Edgar J. Wenger, Jr., Chambersburg, for appel-lee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the order which refused to hold the mother, appellee Donna J. Mellott, in contempt of court for failure to comply with court orders conferring visitation rights on the father, appellant Chalmer M. Mel-lott. Appellant also argues that the trial court erred in not granting custody of the parties’ two daughters, Angela Dawn, age fourteen, and Dana, age thirteen, to him.

The parties married in 1968 and separated in 1981. On November 27, 1981, appellant presented his petition for custody of the girls. On February 12, 1982, the court ordered that the appellant have custody/visitation every third weekend from six p.m. Friday to six p.m. Sunday. When this arrangement did not work out, such that appellant saw his daughters only infrequently and for very short periods of time, appellant petitioned on April 20 and June 11, 1982 for a rule to show cause why appellee should not be held in contempt of court for failing to facilitate and obstructing his visits with the girls. On June 17, 1982, the trial court ordered that all four Mellotts attend counselling sessions, at the conclusion of which the counselor made certain recommendations. On July 12, 1982, the trial court, relying on a report by the counselor, entered the following order:

July 12, 1982, it appearing to the Court after a report from Dr. James W. Nutter that the parents are still at odds to a significant degree; that Angela Mellott, the older daughter, is still refusing to visit with her father and that a period of short-time visits between the children and their father is required.
IT IS ORDERED that on July 16, 1982, the mother shall have the children ready to go with their father for a visit of one hour and a half commencing at 7:00 p.m. and that such periods of visitation shall continue through September 17, 1982. Thereafter, it is ordered that the children shall visit with their father from 7:00 p.m. Friday evening until 10:00 a.m. Saturday morning, such visitation to continue through November 13, 1982.
IT IS FURTHER ORDERED that beginning November 26, 1982, and every other wéekend thereafter, the children shall visit with their father from 6:00 p.m. on Friday to 7:00 p.m. on Sunday, with the father to provide all transportation for all visits.
It shall be the obligation of the mother to have the children ready for such visits and to encourage them to participate in the plan hereby ordered. While in the presence of the children neither of the parents shall make any remarks or do anything which can in any way be construed as derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one whom the children should respect and love.
It is further ordered that the family shall continue in consultation with Dr. Nutter according to the program which he prescribes.

Then, on July 28, 1982, appellant filed yet another petition for a rule to show cause why the mother should not be held in contempt for failure to abide by the order of the court. By order of September 24, 1982, the court set a hearing for October 5, 1982, on appellant’s three petitions and on his original petition for custody of the girls of November 27, 1981.

The hearing was conducted as scheduled. Appellant, appellee and the children were all represented by attorneys. Appellant testified on his behalf; also testifying for him were his sister, Esta Pittman, and a friend and current landlord, Garnet Snyder. Counsel stipulated that another sister would testify in substantially the same way as the one who did.

Donna Mellott testified at this hearing; also Fern Mellott, who identified herself as appellant’s sister-in-law. Angela and Dana, the children, also testified.

Testimony was elicited as to the difficulties surrounding appellant’s visitations with his daughters. Prior to one weekend in April, appellee called appellant to tell him that the girls had other plans and would not be coming to visit on the scheduled weekend. He tried to locate them all weekend, but to no avail. Two weekends after that the girls refused to go with their father. On another scheduled visit in July, appellee permitted Angela to go to Canada and Dana refused to see her father. Appellant testified that his wife refused to encourage the girls to spend time with him. She herself admitted that the girls have been through a lot with the break-up of their parents’ marriage and that she did not want to force them to see their father. She testified that the girls threatened to run away from home if she pressured them too much.

Testimony also established the parties’ respective descriptions of their living situations, their fitness to be custodial parents, and the preferences of Angela and Dana.

In its opinion, filed February 3, 1983, the court discussed only the contempt petitions. In refusing to hold Mrs. Mellott in contempt, the court, amended its July 12, 1982, order. Apparently assuming that the responsibility for Mrs. Mellott’s non-cooperation with Mr. Mellott resulted from the vagueness of the court’s original order, the court amended its order as follows:

It shall be the obligation of the mother to have the children ready for such visits and to exert reasonable authority over them and to require them to obey the lawful Order of this Court. She must not only see that they are ready to visit with their father, but must actively participate in seeing that they go with him at the times of his visits with them, imposing punishment of her own if the girls refuse to go. While in the presence of the children, neither of the parties shall make any remarks or do anything which can in any way be construed as derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one whom the children should respect and love.
In all other respects the Order of July 12,1982, remains in full force and effect.

Taking first appellant’s allegation that the trial court erred in not finding appellee in contempt of court, we are cognizant of placing great reliance on the sound discretion of the trial judge. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Commonwealth ex rel. Ermel v. Ermel, 322 Pa.Superior Ct. 400, 469 A.2d 682 (1983).

By its amending its original order, the court, in effect, was acknowledging that appellee was not complying in the way the court intended as regards to appellant’s visitation rights. However, rather than finding that she was in contempt, the court clarified and expanded its order. We can find no abuse of discretion in the court’s refusal to find her in contempt.

As for appellant’s issue regarding who should have custody of the girls, we find the trial court has never adequately addressed that question through all of the proceedings below. In its order which set the date for the hearing, the court clearly set forth appellant’s custody petition as one of the subjects to be addressed at the hearing. Counsel for both sides presented testimony which the court could consider in determining who should be awarded custody. However, the judge who presided at the hearing, and who issued its opinion thereupon, discussed only the contempt issue with no mention of custody.

Then, after appellant filed his statement of matters complained of on appeal under Pa.R.A.P. 1925(b), the hearing judge became disabled and unable to perform any judicial functions. Another judge reviewed the record and found that appellant waived his arguments as to custody in that

[h]ad the defendant/father desired appellate review of Judge Eppinger’s shared custody decision of July 12, 1982, it was incumbent upon him to seek his relief in [the Superior] Court above by following the appropriate appeal procedures within thirty (30) days of July 12, 1982, rather than seeking an enforcement of his shared custody rights on July 27, 1982, in this [trial] court.

We disagree. The order of July 12, 1982, was not the product of a hearing nor resulting from specific findings of the lower court. It was, in effect, the court’s adoption of the report of a court counselor. Moreover, that same court explicitly stated in its order of September 24, 1982, setting the hearing date of October 5, 1982, that appellant’s original custody petition was to be considered at the hearing. We therefore cannot agree with the second trial court’s conclusion that

“[a]t the hearing, Judge Eppinger decided to admit evidence on the matter of custody because had Mrs. Mellott been found in contempt of the shared custody order, another possible sanction would have included a change of custody.”

Custody, in its own right, was an issue on October 5, 1982.

So we are faced with a breakdown in this case in the first stage of the appellate process in a child custody case, the procedural stage. In Re: Donna W. and Edward W., en banc 325 Pa.Superior Ct. 39, 472 A.2d 635 (1984).

At the first, procedural, stage of the appellate process, the appellate court examines the record to determine whether the trial court has satisfied the several procedural requirements incident to the entry of a custody award. To enable the appellate court to exercise its independent judgment, the trial court must make a complete record. This means that the record must contain testimony adequate to illuminate the circumstances of the parties. There should be testimony by interested and disinterested witnesses alike.
The appellate court also considers at the procedural stage whether the trial court has filed a complete and comprehensive opinion, including findings of fact and reasons for the award. If the record is otherwise complete, it may not be necessary to remand for a comprehensive opinion, but often remand is necessary to enable us to exercise our independent judgment.
Id., 325 Pa.Superior Ct. at pp. 51-52, 472 A.2d 635. (citations omitted).

While a hearing did occur in which a complete record was arguably developed, we cannot proceed to determine the custody issue in this case on facts elicited almost seventeen months ago. Moreover, it is necessary for the trial court to provide us with ¿ comprehensive opinion on the issue of custody based on current facts as found from a new hearing on this issue, if the parties still desire to contest custody.

Therefore, for the reasons stated above, the order of the court refusing to hold appellee in contempt of court is affirmed. On the issue of custody, this case is remanded for a new hearing and the filing of a comprehensive opinion, including findings of fact and reasons for the award.

      . Given our disposition of this issue, it is unnecessary for us to address appellant’s second issue regarding whether custody maybe transferred when a parent has been found in contempt. In any event, it is clear that it may in such a situation. Pamela J.K. v. Roger D.J. 277 Pa.Superior 579, 419 A.2d 1301 (1980).

      . When a custody dispute is between parents, regard must first be had to "the fitness of such parent and the best interest and permanent welfare of” the children. 48 P.S. § 92; In Re: Custody of Hernandez, 249 Pa.Superior 274, 376 A.2d 648 (1977).


text:
    476 A.2d 965
    COMMONWEALTH of Pennsylvania, Appellant, v. Karl J. BROWN.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1983.
    Filed May 25, 1984.

      Andrew R. Rogoff, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    John R. O’Donnell, Philadelphia, for appellee.

      Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   SPAETH, President Judge:

This is an appeal by the Commonwealth from an order suppressing appellee’s statement to the police. We reverse and remand for further proceedings.

The order is appealable because it is apparent from a review of the record that suppression of appellee’s statement substantially handicaps the prosecution. Commonwealth v. Lapia, Commonwealth v. Dugger, 311 Pa.Super. 264, 457 A.2d 877 (1983). Although there were several witnesses to the incident in question, the record reveals that most of these witnesses are unable to identify appellee as the person who fired the gun. Nov. 5, 1981, Preliminary Hearing N.T. 8, 12; May 2, 1982, Rule 1100 Hearing N.T. 3. The one witness who in a statement to the police did positively identify appellee as the person who fired the gun has become uncooperative, thereby greatly reducing the value of his testimony. See Nov. 5, 1981, Preliminary Hearing N.T. 17-39. In addition, the complainant now lives in Puerto Rico and is therefore not available to testify. May 2, 1982, Rule 1100 Hearing N.T. 4.

In reviewing an order suppressing evidence, we are not bound by the trial court’s conclusions of law, but we are bound by the court’s findings of fact, if those findings are supported by the record. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). Here, the trial court concluded that by questioning appellee, the police deprived appellee of his right to counsel. This conclusion was based on a finding that the police violated an agreement with appellee’s attorney that appellee would not be questioned. However, the finding that there was such an agreement is without support in the record.

Appellee and the Commonwealth stipulated as to what the testimony of Harris Baum, appellee’s attorney, and Mitchell Kaplan, a law clerk in Mr. Baum’s office, would be. It was stipulated that Mr. Baum would testify that he “contacted Detective McCloskey by telephone; advised him that our firm was representing [appellee], and that he had discussed the matter with [appellee] and that [appellee] had been instructed, and that he had agreed that he would not give any statement to the police when he surrendered himself.” April 7, 1982, Suppression Hearing N.T. 28. It was stipulated that Mr. Kaplan would testify that “he did accompany [appellee] and his parents to [the police station]; spoke initially to one detective, whose name he does not recall, and instructed that detective that [appellee] was not to be interrogated. He then subsequently spoke to Detective McCloskey, again providing him with the same informa-tion____ Namely, that [appellee] was not to give a statement at that point. After again advising [appellee] not to make any statement, Mr. Kaplan left.” Id. at 29. Appellee testified that Mr. Baum advised him not to make a statement to the police. Id. at 32. He further testified that Mr. Kaplan also advised him not to make a statement, and that Mr. Kaplan informed Detective McCloskey and another detective that he had been so advised. Id. at 34. Detective McCloskey testified that when Mr. Kaplan advised him that appellee was not to make a statement, he replied that Mr. Kaplan should direct his advice to appellee, which Mr. Kaplan then did. Id. at 6. Although this evidence, which was uncontradicted, shows that appellee effectively invoked his right to remain silent, it does not show any agreement by the police not to question appellee.

Even if there were support in the record for the trial court’s finding that the police agreed not to question appellee, the trial court’s conclusion that questioning in the absence of counsel violated appellee’s right to counsel was in error. In reaching this conclusion, the trial court relied on Justice ROBERTS’s plurality opinion in Commonwealth v. Lark, 482 Pa. 292, 393 A.2d 1112 (1978), in which Justice ROBERTS expressed the view that questioning an accused in violation of an agreement with counsel constitutes a denial of the right to counsel. However, this view has not been adopted by a majority of the Supreme Court. Nor has a majority of the Supreme Court adopted the view expressed in Justice NIX’s plurality opinion in Lark that once counsel has undertaken to represent an accused, the accused cannot waive his right to counsel without counsel being present. The law, therefore, continues to be that an accused who has invoked his rights may change his mind and choose to waive his rights, so long as it is he who initiates further communication, and so long as his waiver is voluntary and intelligent. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980), cert. denied, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 387 (1981); Commonwealth v. Nahodil, 462 Pa. 301, 341 A.2d 91 (1975); Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973); Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972).

Since the evidence that appellee effectively invoked his right to remain silent was uncontradicted, the questions the trial court needed to decide were whether it was appellee or the police who initiated further communication, and if it was appellee, whether he made a voluntary and intelligent waiver of his right to remain silent. On these questions, Detective McCloskey’s testimony was contradicted by appellee’s. It was therefore necessary for the trial court to determine the detective’s and appellee’s credibility. However, we are unable on the record before us to determine what the trial court’s determination of credibility was. Compare April 7, 1982, Suppression Hearing N.T. 55 (Court: “I believe what Detective McCloskey had stated so I’m leaning against [appellee] on the credibility issue ____”) mth Trial Court Op. at 1 (“The conduct of Detective McCloskey, although not as blat[a]nt as interrogation, was deliberately and purposefully set out to elicit information from the defendant.”). We must therefore remand for further proceedings, at which the trial court will determine who initiated further communication, and if it was appellee, whether he made a voluntary and intelligent waiver of his right to remain silent.

The trial court’s order is reversed and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.


author: WICKERSHAM, Judge:

text:
    476 A.2d 967
    Jerry J. ELIAS and Alice Faye Elias, his wife, Jerry J. Elias, Administrator of the Estate of Anthony J. Elias, Deceased, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1983.
    Filed June 1, 1984.

      P. Daniel Altland, Harrisburg, for appellants.
    Richard H. Wix, Harrisburg, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WICKERSHAM, Judge:

Appellants commenced this action in assumpsit for recovery of survivors’ loss benefits and work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act as a result of an automobile accident that occurred on November 30, 1978 in Lower Allen Township, Cumberland County. The accident resulted in the death of appellants’ son, Anthony J. Elias, who was a passenger in a motor vehicle that collided with a train.

In count I of their complaint, appellants alleged that they were entitled to recover survivors’ loss benefits under the No-Fault Act as a result of the death of their son. Appellee State Farm filed a motion for partial summary judgment as to count I of the complaint. By order dated October 27, 1980, the Honorable Warren G. Morgan granted appellee’s motion and dismissed that count. The court found as a matter of law that the appellants were not financially and economically dependent upon decedent at the time of death, and therefore, not entitled to survivors’ loss benefits under the No-fault Act. No appeal was taken from that order.

In count II of the complaint, appellants alleged that they were entitled to claim work loss benefits on behalf of their son’s estate. By order of March 31, 1982, the Honorable Clarence C. Morrison dismissed count II of the complaint on State Farm’s motion for summary judgment. This timely appeal followed.

The sole issue raised in this appeal is as follows:

Whether work loss benefits are payable under the Pennsylvania No-Fault Motor Vehicle Insurance Act to the estate of a deceased victim who was not survived by a spouse or other relative dependent upon him for financial support.

Brief for Appellant at 3.

In Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), our court'held that a deceased victim’s estate is entitled to work loss benefits. The Pennsylvania Supreme Court, speaking through Mr. Justice Larsen, affirmed our holding in Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983).

Upon a close and careful examination of the No-fault Act, we find no language which precludes the recovery of work loss benefits to the estate of a deceased victim.
Appellant argues that the language, ‘any victim or any survivor of a deceased victim is entitled to recover basic loss benefits,’ demonstrates the legislative intent that only survivors of a deceased victim and not the estate may receive wage loss benefits. Apparently, this is because the estate of a deceased victim is not specifically mentioned.
The appellant’s argument, however, overlooks the very basic and fundamental fact that a person who dies as a result of injuries sustained in a motor vehicle accident is, within the meaning of the No-fault Act, a victim.
That an injured victim is entitled to basic loss benefits under the Act is beyond question. The fact that a ‘victim’ dies as a result of his injuries and becomes, a ‘deceased victim,’ makes him no less a ‘victim’ entitled to benefits under the provisions of the Act. A personal representative in the person of the executor or administrator of his estate stands in the shoes of the deceased victim as far as entitlement to benefits is concerned. The event of a victim’s death activates the rights of statutory survivors to benefits under the Act. However, the activation of survivor’s rights does not diminish or erase the victim’s rights even though he now be a deceased victim. If it was intended that a victim’s right to benefits be extinguished at his death, the legislature could have and would have said so directly.

Id., 504 Pa. at 222-224, 470 A.2d at 960-61 (emphasis in original).

Thus, Freeze has made it clear that the estate of a deceased victim may recover work loss benefits under the No-Fault Act. The order is reversed and the case remanded for disposition not inconsistent with this opinion. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, §§ 101 et seq., 40 P.S. §§ 1009.101 et seq.

       ‘Victim’ means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; ‘deceased victim’ means a victim suffering death resulting from injury, [emphasis supplied] Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 103, 40 P.S. §§ 1009.103.


author: POPOVICH, Judge:

text:
    476 A.2d 969
    COMMONWEALTH of Pennsylvania v. Mark K. BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 5, 1984.
    Filed June 1, 1984.

      Vincent T. Snyder, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from the judgments of sentence entered by the Court of Common Pleas of Philadelphia County for Criminal Conspiracy (5 years probation) and Robbery (8 to 20 years imprisonment). The sentences on other convictions, which will be discussed infra, were suspended. We affirm.

At a bench trial before Judge (now Pennsylvania Supreme Court Justice) James T. McDermott, appellant, Mark Brown, was found guilty of various charges arising out of the shotgun robbery of a tavern owner in Philadelphia.

Appellant’s trial counsel filed post-verdict motions and a brief which questioned the court’s refusal to grant a mistrial when the prosecutor cross-examined appellant’s mother in connection with appellant’s arrest for an offense that occurred subsequent to the charges for which he was being tried. The prosecutor’s intention was to impeach the mother’s testimony as to the good reputation her son had in the community for being a peaceful and law-abiding citizen.

The trial judge denied appellant’s post-verdict motions, and, after the preparation of a pre-sentence report, imposed sentence.

After an appeal to this Court on May 17, 1980, we issued a per curiam order on February 4, 1981 granting a limited remand to conduct an evidentiary hearing on appellant’s ineffectiveness claims.

An evidentiary hearing was held on May 23, 1982, after which appellant’s motion for a new trial, based on his claim of ineffectiveness of counsel, was denied by Opinion of Judge Mirarchi filed on June 7,1983. Thereafter, an appeal was taken to this court by (private) counsel unassociated with prior counsel who represented the appellant.

Counsel for the appellant raises three issues for our review. The first concerns a claimed entitlement to a new trial because the prosecutor cross-examined appellant’s mother about her knowledge of his arrest for offenses that had not yet led to convictions.

At the time of appellant’s September 12, 1979 trial, it was permissible to impeach the credibility of a character witness in the manner that occurred instantly. See Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971); Commonwealth v. Jenkins, 413 Pa. 606, 198 A.2d 497 (1964); Commonwealth v. Becker, 326 Pa. 105, 191 A. 351 (1937). Counsel for the appellant concedes as much in his brief, but attempts to profit from a reversal of this practice by our Supreme Court in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). The Commonwealth, on the other hand, urges us not to apply Scott retroactively. We need not decide this issue, for during the pendency of the instant appeal our Supreme Court granted retroactivity to Scott in Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) (NIX, McDERMOTT and HUTCHINSON, JJ., dissenting).

Notwithstanding the holding in Cabeza, the issue at hand is not so easily disposed of by merely applying the proscription of Scott to the prosecution’s cross-examination of appellant’s character witness on the question of his arrests. The reason is that the fact-finder in the case at bar was a judge and not a jury. In such a situation, the Courts of this jurisdiction have treated the matter in a fashion consistent with the following scenario:

In any event, appellant’s allegation of prejudice [ — i.e., the trial court’s purported commission of error in admitting into evidence his prior conviction — ] is totally unsupported by the record. Appellant was tried and convicted by a judge sitting alone as factfinder, who expressly stated that he disregard [sic] appellant’s prior criminal record. The evidence now objected to thus was not a factor in determining appellant’s guilt.

Commonwealth v. Davis, 491 Pa. 363, 372 & n. 6, 421 A.2d 179, 183 & n. 6 (1980).

Instantly, the trier of fact made an express statement at the post-verdict motions hearing negating any effect the evidence of appellant’s arrests may have had on the verdict; viz.:

THE COURT: As I understand the law, the basis of the knowledge of a character witness may be inquired into, and further, the Court was sitting as a Court without a jury. The evidence itself is what the Court addressed itself to. That was more than sufficient, under the circumstances, without any reference to any other question. (Emphasis added)

(N.T. 2/26/80 at 3)

Thus, in light of the trial judge’s express statement that he looked exclusively to the evidence “without any reference to any other question” dealing with appellant’s arrest record in rendering his verdicts, appellant’s claim cannot prevail. See Commonwealth v. Guest, 500 Pa. 393, 398, 456 A.2d 1345, 1348 (1983).

The appellant next argues that because, during the jury trial waiver colloquy, he answered “Yes, sir” when asked by the judge “Has anybody promised you anything in order for you to select trial by a judge without a jury?”, his counsel’s failure to object to this (inappropriate) response and inquire into the matter renders him ineffective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

At the evidentiary hearing held at this Court’s direction on remand, trial counsel testified that he remembered the question being asked by Judge McDermott, but not the answer “Yes, sir” being given by the appellant. Counsel offered that “had yes been stated, [he] would have been the first to proceed with [his] line of questioning to let the Court know what, if anything, [he] had promised.” (N.T. 5/12/82 at 11)

On cross-examination, trial counsel denied having ever promised or guaranteed anything to Mr. Brown in an effort to induce him to waive his right to a trial by jury. (N.T. 5/12/82 at 15)

When the appellant took the stand, he stated he had intended to present his case to a jury until his counsel stated, “Look, we don’t need no jury. I promise if you don’t pick, you will not be found guilty.” (N.T. 5/12/82 at 48) According to the appellant, the purported statement made by his counsel prompted him to go non-jury.

On re-direct examination the following exchange occurred between appellant and his counsel:

MR. FIORETTI:
Q. Mr. Brown, why didn’t you tell the Judge that your lawyer had promised you would be—
A. Truthfully speaking?
Q. Truthfully speaking.
A. I thought I was going to get probation. (N.T. 5/12/82 at 52)

Shortly after appellant’s response was elicited, the hearing court judge asked:

THE COURT: Did I understand, Mr. Brown, that you thought you were going to get probation for this case?
THE DEFENDANT: Yes, sir. I did.
THE COURT: And if you had gotten probation for this case there would have been no reason for you to take this appeal, is that correct?
THE DEFENDANT: Yes, sir. (N.T. 5/12/82 at 53-54)

At the completion of the proceedings, the court authored an Opinion denying appellant’s ineffectiveness claim on the ground that, inter alia, trial counsel’s testimony was “believable and credible and to be given full weight. The Court d[id] not accord the same credibility or believability to the defendant, MARK BROWN.” (Hearing Court’s Opinion at 10) There is ample support in the record for the determination made. Thus, it will not be disturbed. See Commonwealth v. Porta, 297 Pa.Super. 298, 443 A.2d 845 (1981), petition for allocatur denied September 1, 1982.

Moreover, this Court finds this case not to be one of reliance upon a “promise” by trial counsel to secure a not guilty verdict, but, rather, one of disappointed expectations. The basis for this being defendant’s remark at the May 12, 1982 hearing that his disenchantment stemmed from the fact that he did not receive “probation” for his convictions. On this subject, the Court in Commonwealth v. Waddy, 463 Pa. 426, 429 n. *, 345 A.2d 179, 180 n. * (1975), in ruling on the propriety of a guilty plea, remarked:

... the colloquy conducted before the plea was accepted fully advised the appellant that the degree of guilt was a matter for the court to determine; that a life sentence was possible and that [appellant] could not expect no lessening for entering the guilty plea. [The Court went on to state that] [disappointed expectations are not grounds for the invalidation of guilty pleas. Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973).

The same rationale that was espoused in Waddy to deny a request to withdraw a guilty plea is equally applicable in the case of a claimed defective waiver of a jury trial, i.e., where the colloquy is otherwise proper, as was the case here, see Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983); Commonwealth v. Payne, 327 Pa.Super. 139, 475 A.2d 137 (1984), an accused’s resentment over the punishment meted out by a sentencing court will not be a basis to void the waiver. Thus, appellant’s ineffectiveness claim is found wanting, and, accordingly, is denied.

Lastly, appellant challenges the legality of the “suspended” sentences appearing on the Dockét Entries of the Court of Common Pleas of Philadelphia County for Bills of Information Nos. 765 (Recklessly Endangering Another Person) and 766 (Carrying a Firearm on the Streets of Philadelphia and Carrying a Firearm Without a License). He does so on the basis that the prosecution, at trial, only moved to try him for the offenses listed at Bills of Information Nos. 764 (Conspiracy), 767 (Possession of an Instrument of Crime and Possession of a Prohibited Offensive Weapon) and 768 (Robbery), and, at the completion of the proceedings, the trial judge finding him “guilty of all charges” without specification. {See N.T. 9/12/79 at 3 & 100) Thus, he moves for this Court to vacate the sentences imposed on Bills of Information Nos. 765 and 766 “since no trial was ever held, and, therefore, no judgment of sentence could be imposed.” (Appellant’s Brief at 10)

Before we can address the merits of appellant’s protestation, we must respond to the Commonwealth’s contention that “defendant’s claim is in fact an attack on his conviction, [and, thus,] ... is waived [because it was] not objected to at the time the guilty verdicts were entered or in post-verdict motions.” (Commonwealth’s Brief at 12)

We believe, based upon our examination of the claim against the procedural backdrop of the case at bar, that the position taken by the Commonwealth is a correct one. In other words, we see appellant’s attack as one directed at his being convicted of crimes for which he was not charged with at trial, and, as such, he is “making a disguised attack on the validity of the convictions underlying the sentences.” Commonwealth v. Walker, 468 Pa. 323, 330, 362 A.2d 227, 230 (1976).

To explicate, the facts relevant to a disposition of the question posed concern the robbery, at gun point, of one Gary Johnson.

At approximately 1:30-2:00 p.m. on the 2nd of April, 1979, Mr. Johnson was walking to his vehicle, which was parked in front of his establishment. He was en route to the bank to make a deposit of the day’s receipts when he heard a voice say, “Hold it.” (N.T. 9/12/79 at 10) As Johnson turned, one of two young men “was leveling a sawed-off shotgun at [his] stomach, saying, ‘Pussy mother fucker, give me the case.’ ” (N.T. 9/12/79 at 18) The “case” contained $1,000.

The person giving the commands, later identified as the appellant, held the shotgun in his right hand as he removed the case from Johnson’s possession with his left hand. The appellant then directed his accomplice to take Johnson’s car keys and pat him down. The accomplice did so and removed a handgun from Johnson’s person. Johnson was, thereafter, ordered to run down the street by appellant. As he turned to do so, the duo ran.

The police were duly notified and were provided with a description of the assailants’ clothing and physical features. Shortly thereafter the appellant was arrested and five (5) Bills of Information were issued against him on May 16, 1979; viz.:

1) No. 0764, May Term, 1979 charged Criminal Conspiracy;
2) No. 0765, May Term, 1979 charged Recklessly Endangering Another Person and Terroristic Threats;
3) No. 0766, May Term, 1979 charged Carrying a Firearm on Public Streets or Public Property and Carrying a Firearm Without a License;
4) No. 0767, May Term, 1979 charged Possessing Instruments of Crime-Generally, Possessing Instruments of Crime — Concealed and Prohibited Offensive Weapons; and
5) No. 0768, May Term, 1979 charged Robbery.

It is true, as appellant brings to our attention, that at the commencement of the adjudication before the Honorable James T. McDermott, the assistant district attorney stated:

Your Honor, the Commonwealth moves for trial on the case of Commonwealth versus Mark Brown, Bills of Information No. 764, 767, 768, May Term, 1979, charging the defendant with conspiracy, possession of instrument of crime, possession of prohibited offensive weapon, robbery. (N.T. 9/12/79 at 3)

Following the presentation of the prosecution’s and the defense’s case, the trial judge held: “I found the defendant guilty on all charges.” (N.T. 9/12/79 at 100)

From the preceding two facts, appellant wishes us to believe that the charges listed at Bills of Information Nos. 765 and 766 were never adjudicated, and, therefore, the entry of the “suspended” sentences as to those two Bills was illegal and should be vacated.

If we were to look only at the facts brought to our attention by the appellant, and nothing more, there might be some arguable merit to the contention. However, our independent review of the trial transcript reveals that the assistant district attorney specifically informed the accused that he was on trial for five (5) Bills of Information. Such a conversation transpired immediately after the introductory comments referred to supra, and took the form of a jury trial waiver colloquy conducted by the assistant district attorney; to-wit:

BY MR. CHADWICK:
******
Q. Do you understand that you are here today for trial on five bills of information charging you with robbery, conspiracy and possession of instruments of crime?
[APPELLANT:]
A. Yes, sir. (N.T. 9/12/79 at 4-5)

Accordingly, in light of the aforementioned, any misconception the appellant may have been under concerning the offenses for which he was being tried was rectified by the assistant district attorney reconfirming what already appeared on the five (5) Bills of Information, which the appellant acknowledged as having been made aware of at trial.

Moreover, and more to the point in light of the facts reconstructed herein, it is obvious to this Court that the appellant is assailing the convictions underlying his sentence, rather than the legality of the sentences imposed at Bills of Information Nos. 765 and 766. Ergo, appellant’s failure to question the propriety of his convictions in post-verdict motions renders them waived. See Commonwealth v. Rispo, 222 Pa.Super. 309, 294 A.2d 792 (1972). There being no allegations of “extraordinary circumstances” excusing the appellant’s inaction, Commonwealth v. Rispo, supra, he will not be permitted to resurrect the subject now as a subterfuge to a legality of sentence claim.

Judgments of sentence affirmed.

       A judge, as factfinder, is presumed to disregard inadmissible evidence and consider only competent evidence. Commonwealth v. Glover, 266 Pa.Super. 531, 405 A.2d 945, 947 (1979) (Special Transfer Docket); McCormick, Evidence § 60 (2d ed. 1972). Cf. Commonwealth v. Batty, 482 Pa. 173, 178, 393 A.2d 435, 438 (1978) cert. denied 440 U.S. 974, 99 S.Ct. 1543, 59 L.Ed.2d 793 (1979) (court did not abuse its discretion by admitting inflammatory photographs "because, although inadmissible in a jury setting, a judge, as the trier of fact, possesses the training, skill and experience to enable him to view such photographs [in the proper manner]”). Commonwealth v. Green, 464 Pa. 557, 561, 347 A.2d 682, 683 (1975) (no prejudice when a confession, initially ruled admissible, is later found to be involuntary during a non-jury trial; the Court specifically rejected appellant’s claim that "the mere exposure to prejudicial evidence is enough to nullify a judge’s verdict in a case.”); Commonwealth v. Glover, supra, [266] Pa.Super. at [534], 405 A.2d at 947, no prejudice where judge, as factfinder, hears inflammatory tape recording.)
      (Opinion of the trial court at 23-24) Accordingly, any error in its admission was harmless beyond a reasonable doubt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

      . The question has not been raised and for the purposes of this Opinion we do not decide if the judgments of the trial court suspending sentence on the convictions for the offenses set forth at Bills of Information Nos. 765 and 766 are appealable. See Commonwealth v. Roux, 465 Pa. 482, 485 n. 1, 350 A.2d 867, 869 n. 1 (1976).