author: PER CURIAM:

text:
    454 A.2d 112
    Barbara S. SCHREIBER v. S. Allen SCHREIBER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed Dec. 17, 1982.

      William John Templin, Pittsburgh, for appellant.
    Theodore T. Blair, Pittsburgh, for appellee.

      Before ROWLEY, MONTEMURO and VAN der YOORT, JJ.
   PER CURIAM:

The parties to this controversy are husband and wife, married in July 1957; three children resulted from the marriage. The husband left the marital household around Thanksgiving, 1975 and returned admittedly for economic reasons around Thanksgiving, 1977. The husband had filed suit in Allegheny County for divorce on August 16, 1977, at No. 876 October Term, 1977; he alleged indignities. On August 2, 1978, the wife filed a petition for alimony and counsel fees; and on August 21, 1978, she filed a complaint for support at No. D. 2896 of 1978.

Testimony was heard by Judge Kaplan on both claims on November 29 and 30, 1978. On January 16, 1979, he entered an order granting the wife support at $100 per month, plus reimbursement for one semester’s tuition at the University of Pittsburgh and counsel fees of $650. The Petition for Alimony Pendente Lite was dismissed. The husband contested the wife’s claim for support (or alimony pendente lite) on the grounds that the wife admitted having had an adulterous relation with another man. Judge Kaplan, none the less determined that the wife was entitled to support under all the circumstances of the case. The factual history may be summarized as follows.

1. The husband moved from the marital home in late November, 1975.

2. During 1976 and at least until the spring of 1977 he engaged in an extra-marital relationship.

3. In May, 1977 the wife learned of this relationship.

4. In June and July 1977, husband and wife, although still living apart, engaged in several acts of sexual intercourse.

5. On August 16, 1977 the husband filed suit for divorce, alleging indignities.

6. In late November, 1977 the husband returned to the home, against the wife’s wishes, each occupying separate quarters, and without resuming conjugal relations.

7. During February or March of 1978, the wife engaged in an extra-marital affair without the knowledge or consent of the husband.

8. The husband learned of this affair in July, 1978.

9. Husband and wife continued to live in the same residence, but on separated basis, until the husband left in May, 1979.

The husband filed an appeal to the Superior Court at No. 134 April Term, 1979, from the order of January 16, 1979. When the husband attempted to reproduce the record of the proceedings below, he was unable to procure a transcript of the testimony taken on November 29 and 30, 1979, because the court reporter had retired. He was able to procure a satisfactory transcript of the testimony taken on November 29 through another reporter, but the notes of testimony for November 30th were not found. Claiming that that testimony was important as to the issue of entitlement to support (denied by the wife and her counsel, and contrary to the recollection of the trial judge), and unable to agree with the wife as to the subjects developed at the November 30th hearing, the husband procured an order for “a hearing in Absence of Transcript.” On December 17, 1980 a hearing was scheduled before Judge Kaplan. On that date no testimony was taken on the issue of entitlement to support, that matter being postponed to another day. Judge Kaplan largely on his own suggestion, but also moved for by the wife’s attorney, entered an order amending the support order entered on January 16, 1979 (and a modification of that order entered on August 20, 1979)... “nunc pro tunc to represent an Order of payment as Alimony Pendente Lite rather than support, it being the intention hereunder to eliminate the defense of entitlements to said payments ....” From this order the husband also filed an appeal to our court, docketed at No. 173 Pittsburgh Term, 1981.

On February 26, 1981, a stipulation of facts was entered in the record, and the testimony of husband and wife taken on matters relating to the wife’s “entitlement” to payments of support or alimony pendente lite. The substance of the facts developed has been summarized above.

The appellant raises two contentions before this court:

That the nunc pro tunc conversion of “support” (January 16, 1979) to an amended order for “alimony pendente lite” was an improper exercise of discretion; and

That the wife was not entitled to support due to her extra-marital affair.

We will discuss the two contentions in reverse order.

I. ENTITLEMENT.

Despite his own infidelity over a period of more than a year, which appellant contends was condoned by his wife’s acts of intercourse with him thereafter with knowledge of the infidelity, appellant contends that his wife lost her right to support from him because subsequently she entered into an adulterous relationship. The wife admitted that she had had a relationship, not fully described in the record, with a man named Fred, which apparently occurred in the spring of 1978, and was discovered by her husband in July, 1978. In his original opinion, dated January 16, 1979, Judge Kaplan concluded that the wife’s violation of the marriage vows, (what he characterized as recrimination) did not deprive the court of the power, within the court’s discretion, to order payment of support.

Judge Price in his opinion in Hellman v. Hellman, 246 Pa.Superior Ct. 536, 543, 371 A.2d 964 (1977), clearly stated the law concerning the problem at hand,

We agree with the [appellant] that an act of adultery on the part of the husband does not give a wife, unrestrained by morality or personal dignity, a right to act forever in a licentious manner and still command support from her husband. Support laws, however, were not promulgated for the purpose of rewarding a wife’s good behavior. An order of support seeks to secure a reasonable allowance for the maintenance of the wife so that she may not become a charge of the state. Commonwealth ex rel. Bassion v. Bassion, 199 Pa.Super. 541, 185 A.2d 822 (1974). Thus, although it is true that the only cause which will justify a husband’s refusal to support his wife is conduct on her part, such as adultery, which would be a valid ground for divorce, Commonwealth ex rel. Herman v. Herman, 95 Pa.Super. 510 (1929), we must not focus our attention solely upon the wife’s conduct in reviewing her right to support. We must look at all the circumstances present in each case. If we were to mechanically apply the appellee’s inflexible rule, if we did not view each case in its entirety, then certainly we would eventually occasion an inequitable termination of support.

On appeal, an order of support will not be disturbed unless there is a clear abuse of the trial court’s discretion in awarding support. Commonwealth Ex. Rel. Carmack, 268 Pa.Superior Ct. 198, 407 A.2d 1314 (1979); Hellman, supra.

Both Carmack, supra and Hellman, supra, involved situations where both spouses had been unfaithful; in both it was held to be within the trial court’s discretion to award support. In the current appeal appellant emphasizes that his wife accepted him back after his infidelity and therefore she cannot now use his prior conduct to justify support in spite of her own questionable conduct. Appellant would have this court limit our focus only to his wife’s conduct; this is exactly what Heilman, supra held we should not do. But cf. Commonwealth Ex Rel. D’Andrea v. D’Andrea, 262 Pa.Superior Ct. 302, 396 A.2d 765 (1978) (proof that the spouse from whom support is sought has committed adultery does not automatically warrant award of support).

Looking to the situation as a whole, we cannot find that the lower court abused its discretion. The marital home was owned by the husband’s mother. The wife was with limited marketable job skills and was unsuccessful in finding employment. The court deemed support necessary so that the wife could continue her academic training until she was able to secure employment.

II. THE CONVERSION NUNC PRO TUNC OF THE SUPPORT ORDER TO ALIMONY PENDENTE LITE.

As appears fairly clearly from the docket entries and the summary of procedural events, this case has dragged itself out over a long period of time. Except for the inability to secure a transcript of the hearing of November 30, 1978, the appeal from the order of support entered on January 16, 1979, presumably would have been processed in due course on the basis of the record of proceedings as of January 16, 1979.

The various steps taken in the lower court from the time the first appeal was taken, up to December 17, 1980, when Judge Kaplan entered his order, amending the previous order for support into an order for alimony pendente lite, were directed legitimately and reasonably at the objective of preparing a record for a review by the appellate court of the January 16, 1979 order for support. In those circumstances, even though we sympathize with the lower court’s motivation: judicial economy; the prevention of further delay; the equities favoring the wife; we believe the amending order nunc pro tunc was improperly entered.

Under Rule 1701 Pennsylvania Rules of Appellate Procedure the trial court is divested of its jurisdiction during the pendency of an appeal. Commonwealth v. Gottshalk, 276 Pa.Superior Ct. 102, 106 n. 5, 419 A.2d 115, 117 n. 5 (1980). The December 17, 1980 order was entered after appellant’s notice of appéal at No. 134 April Term 1979 and unless such order came within the exceptions stated in Rule 1701(b), such order was improper. Rule 1701(b)(1) permits the court to correct formal errors or cause the record to be transcribed. Appellant moved to reconstruct the record pertaining to November 30, 1978; such was permissible. However, the court went on to clarify its order for support of January 16, 1979 to require the payment of alimony pendente lite. Such modification, in light of the court’s specific dismissal of the alimony pendente lite claim on January 16, 1979, was not permissible. See Ferencak v. Moore, 300 Pa.Superior Ct. 28, 445 A.2d 1282 (1982) (Opinion by Van der Voort, J.).

Therefore, the order entered January 16, 1979 is affirmed; the order entered December 17, 1980 is ordered stricken.

      . This item was subsequently charged to Mrs. Schreiber.

      . When this relationship ended is a matter of dispute between the parties.

      . At No. 1442 July 1980, the husband filed a second complaint in divorce alleging adultery. The two actions were consolidated by an order consented to by the parties.

      . Judge Kaplan’s premise that adultery would not prevent an order for alimony pendente lite is not documented, and is not briefed in the appellate court.

      . The proceedings below proceeded under the old Divorce Act, 23 P.S. § 1 et seq., Act of May 2, 1929, P.L. 1237 § 1 as amended; repealed April 2, 1980, P.L. 63, No. 26 § 801, effective in 90 days.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    454 A.2d 115
    KAMINSKI BROTHERS, INC. v. Dominick LUSSI and Catherine Lussi, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1981.
    Filed Dec. 23, 1982.
    Petition for Allowance of Appeal Denied April 15, 1983.

      Patrick E. Dougherty, Wilkes-Barre, for appellants.
    Richard J. Marusak, Hazelton, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   CAVANAUGH, Judge:

This appeal involves an action in ejectment brought by appellee Kaminski Brothers, Inc., in which it sought to evict appellants Dominick and Catherine Lussi from a tract of land in Luzerne County, Pennsylvania. The Lussis asserted ownership of the subject property by adverse possession. It was agreed that the Lussis were the owners of a house situated on the subject property irrespective of the status of title to the land on which it is located. The case was tried before a jury, and a verdict was rendered in favor of the Lussis. Kaminski Brothers’ subsequent motion for a new trial was granted by the lower court. It is from the order granting a new trial that this appeal was taken. Because we find that the lower court abused its discretion in granting a new trial, the order is reversed.

Appellants claim that there was sufficient evidence presented to the jury to support their claim of adverse possession and that the grant of a new trial was therefore improper. We agree. We recently summarized the burden of proof in adverse possession cases as follows:

“It is well settled that he who asserts title by adverse possession must prove it affirmatively.” Robin v. Brown, 308 Pa. 123, 129, 162 A. 161, 162 (1932). “[O]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years____ Each of these elements must exist, otherwise the possession will not confer title.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted). See also Tioga Coal Co. v. Supermarkets General Corp., 289 Pa.Super. 344, 433 A.2d 483 (1981); Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978); Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976). “An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts____ He must keep his flag flying and present a hostile front to all adverse pretensions.” Smith v. Peterman, supra, 263 Pa.Super. at 161, 397 A.2d at 796 (quotations and citations omitted).

Flickinger v. Huston, 291 Pa.Super. 4, 7-8, 435 A.2d 190, 192 (1981).

Appellant Dominick Lussi currently lives with his sister, co-appellant Catherine Lussi, in one side of a double block house on the property which is the subject of this suit. Their parents, Frances and Rufino Lussi, first took possession of the property in 1918, and lived there until their deaths in 1926 and 1962, respectively. Dominick was born in 1920 and has lived in the house for his entire life. Catherine has lived on the property since her parents first took possession in 1918. Lussi testified as to his family’s use of the property. He recalled helping to clear the property when he was a child so that they could plant trees and a garden. He further stated that they fenced in the property so that they could raise animals and built sheds to house the animals. He has continued to make repairs to the house and surrounding property as needed and still plants a garden every year.

Appellee Kaminski Brothers claims record title to the land in question by virtue of a 1961 quit claim deed from the Essex Coal Company. It claims that, rather than being adverse, the possession of the land on the part of the Lussis and their parents was permissive under and pursuant to a self-renewing lease from year to year which was executed in 1918 between Hillside Coal and Iron Company, one of appellee’s predecessors in title, as lessor, and Rufino Lussi and Giovanni Grassi, as lessees.

Kaminski Brothers was unable to produce any lease regarding the property in question signed by Rufino Lussi. They did, however, introduce as evidence certain business records of the Hillside Coal and Iron Company. These records indicate that there was a lease between the coal company and Lussi and Grassi, for $7.00 per year rental for use of the land surface. The company’s records indicate that as of April 1, 1934, the balance due on the lease was paid up. Kaminski Brothers produced no evidence to indicate that the Lussis had paid any rent to them or to any predecessor in title subsequent to April 1, 1934.

Dominick Lussi testified that as far as he knew, his father had never paid rent to anyone for use of the land. He did testify, however, that in 1940 or shortly thereafter, his boss, the owner of appellee’s predecessor in title, gave him a document to take home to his father. The document had the word “lease” written on the outside. Lussi gave the document to his father, but his father refused to sign it. Appellant therefore returned the unsigned document to his boss.

The law in this Commonwealth is that:

Where the possession, at its inception, is permissive ____, [The statutory period for an adverse possession claim] will not begin to run against the real owner until there has been some subsequent act of disseizin or open disavowal of the true owner’s title____

Moser v. Granquist, 362 Pa. 302, 304-05, 66 A.2d 267, 268 (1949), quoted in Roman v. Roman, 485 Pa. 196, 200-01, 401 A.2d 361, 363 (1979); See also, Glass v. Tremellen, 294 Pa. 436, 144 A. 413 (1928).

In reaching a verdict in the instant case, the jury was required to determine whether the Lussis’ possession of the land in question was initially permissive, and, if so, whether there was a subsequent “act of disseizin or open disavowal” of the owner’s title, followed by at least 21 years of “actual, continuous, exclusive, visible, notorious, distinct and hostile possession” so as to establish title in the Lussis. Flickinger v. Huston, supra. The jury determined that the evidence did support the Lussis’ claim of title by adverse possession. The lower court, in granting the appellee’s motion for a new trial, stated that the Lussis failed to produce credible evidence sufficient to overcome Kaminski Brothers’ evidence of a permissive use. The court stated that, in its judgment, the Lussis’ evidence “falls so far short of proving ... an open and explicit disavowal [of the lease] that the verdict must be regarded as shocking to our conscience.” Lower court opinion at 4.

In reviewing an order granting a new trial, we are guided by the following principles:

A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury could have found for either party. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970); Carroll v. Pittsburgh, 368 Pa. 436, 445-46, 84 A.2d 505, 509 (1951); Denby v. North Side Carpet Cleaning Co., 257 Pa.Superior Ct. 73, 79, 390 A.2d 252, 255 (1978). A new trial should be awarded on the ground that the verdict was against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Co., supra; Denby v. North Side Carpet Cleaning Co., supra. See also Brown v. McLean Trucking Co., 434 Pa. 427, 429-30, 256 A.2d 606, 607 (1969); Jones v. Williams, 358 Pa. 559, 564, 58 A.2d 57, 60 (1948).
“The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but that discretion is not absolute; this Court will review the action of the court below and will reverse if it determines that it acted capriciously or palpably abused its discretion.” Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124 (1969). See also Burrell v. Philadelphia Electric Co., supra 438 Pa. at 288-89, 265 A.2d at 517.

Cianci v. Burwell, 299 Pa.Super. 387, 445 A.2d 809, 810 (1982). (emphasis added).

As we noted above, appellee was unable to produce a copy of the lease which allegedly existed between its predecessor in title and the appellants’ father. Even assuming, arguendo, that the business records of appellee’s predecessor in title were sufficient to establish that the Lussis’ possession was permissive at its inception, we feel that the Lussis’ failure to pay any rent for use of the land subsequent to 1934 and Rufino Lussi’s refusal to sign a lease presented to him in or around 1940 was sufficient evidence to support a finding by the jury that the Lussis’ possession after that time was adverse.

While the evidence presented may well have been sufficient to support a verdict for the appellee, we certainly do not feel that the jury verdict in favor of appellants was “so contrary to the evidence as to shock one’s sense of justice.” Burrell v. Philadelphia Electric Company, supra. We conclude, therefore, that the lower court abused its discretion in granting the appellee’s motion for a new trial.

Order of the lower court reversed.

      . Grassi lived in the other half of the double block house on the property in question. We note that a member of the Grassi family has successfully defended his title by adverse possession to the land surrounding the Grassi side of the double block dwelling. See Kaminski Brothers, Inc. v. Grassi, 237 Pa.Super. 478, 352 A.2d 80 (1975).

      . The lower court also stated in its opinion that "the jury was confused as to its duty” and that it rendered the verdict it did out of sympathy for the Lussis. The court’s basis for this observation is the following question submitted by the jury foreman during the course of the jury’s deliberations:

        Is it possible to award the parcel of land to the Lussis with the stipulation that ownership revert to the Kaminskis when the Lussis are deceased?
      The fact that the jury at one point inquired as to the possibility of reaching some sort of compromise verdict does not support a conclusion that the final verdict was based on sympathy for one party rather than on the jury’s assessment of the evidence. Jury deliberations "are secret and their inviolability must be closely guarded.” Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 249, 171 A. 900 (1934). We do not believe that a jury’s verdict should be discredited on the basis of an interpretation of an inquiry made during deliberations. Most questions posed by jurors will be subject to a variety of interpretations, as is the question posed by the jury in this case. It is possible, for instance, that the jury made this inquiry in the hope that a unanimous, rather than a split, verdict could be returned (the jury returned a 10 to 2 split verdict in this case). It is also possible that the inquiry was made at the request of only one juror, perhaps one of the two who eventually voted in favor of Kaminski Brothers.
      In any event, the court’s attempt to discredit the verdict on the basis of such an innocuous question is tantamount to an improper impeachment of a jury verdict. It has long been the rule that jurors cannot impeach their own verdict. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978); Friedman v. Ralph Brothers, Inc., supra; Commonwealth v. Williams, 279 Pa.Super. 28, 420 A.2d 727 (1980); Pittsburgh National Bank v. Mutual Life Insurance Company, 273 Pa.Super. 592, 417 A.2d 1206 (1980). We think it equally improper for a court to, in effect, impeach a jury verdict.


author: WIEAND, Judge:

text:
    454 A.2d 119
    Donna L. STUBBS, Appellant, v. Michael F. FRAZER and Buffalo Van and Storage Co.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1982.
    Filed Dec. 23, 1982.
    Petition for Allowance of Appeal Denied March 22, 1983.

      J. Michael Eakin, Carlisle, for appellant.
    William F. Martson, Carlisle, for appellees.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

Donna L. Stubbs was injured when she drove her vehicle into the rear of a motionless truck on a Route 15 exit ramp in Cumberland County. A jury found that she had been 75% negligent and Michael P. Frazer, the operator of the truck, 25% negligent in causing the accident. On appeal from a judgment entered in favor of Frazer and his employer, Buffalo Van and Storage Co., Stubbs contends that it was error for the trial court to refuse a jury instruction that the Pennsylvania Comparative Negligence Law was inapplicable if Frazer were found guilty of wanton misconduct. The trial court refused the instruction because there was no evidence of wantonness on the part of the truck driver. We agree that there was no evidence of wanton misconduct and, therefore, affirm the judgment.

On September 23, 1978, between the hours of 1:00 and 2:00 o’clock, a.m., Frazer, accompanied by Kevin Connolly, was driving a truck owned by Buffalo Van and Storage Co. in a southwardly direction on U.S. Route 15 toward Mechanicsburg. As he approached the Slate Hill Road interchange, the truck’s headlights flickered. Frazer passed this interchange, but, when the lights flickered on and off two or three times more, he moved onto the next available exit ramp at Rossmoyne Road-Wesley Drive. This exit ramp was approximately one-half mile south of the Slate Hill Road exit. As Frazer approached the exit ramp he activated the emergency flashers and slowed the truck’s speed. The ramp was .3 mile in length and included a 13 feet wide paved portion and an unpaved berm of similar width. A spur leaves the ramp to the left at a distance of approximately .2 mile from Route 15. As Frazer moved along the ramp at a speed which he estimated to be 10 m.p.h., the truck lights continued to flicker. When he reached a point that was estimated to be 30 feet from the spur, the truck’s electrical system failed, the motor stopped, and the truck came to rest in a darkened condition. Within eight to ten seconds thereafter and before the occupants could exit the truck, it was struck in the rear by appellant’s car.

In order to prove the foregoing facts, appellant called the driver of the truck as of cross-examination. Her counsel inquired regarding the absence of flares but was told that the accident occurred before the driver could retrieve available flares and get out of the truck. The exit ramp was unlighted and Frazer said that he drove the paved portion of the ramp because he was unaware that there was a berm that would have enabled him to drive the truck along the unpaved portion thereof.

Appellant requested the trial court to instruct the jury as follows:

“5. You should consider whether the defendants’ conduct constituted wanton misconduct in reckless disregard of the plaintiff’s safety.
6. If you find the defendants’ conduct constituted wanton misconduct in reckless disregard of the plaintiff’s safety, then, even if the plaintiff was to any degree negligent herself, this negligence does not bar her from a full recovery of her damages.”

Wanton conduct “is something different from negligence however gross,—different not merely in degree but in kind, and evincing a different state of mind on the part of the tortfeasor. Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.” Turek v. Pennsylvania Railroad Company, 369 Pa. 341, 344, 85 A.2d 845, 847 (1952), cert. denied, 343 U.S. 928, 72 S.Ct. 762, 96 L.Ed. 1339 (1952), quoting Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943). Accord: Zawacki v. Pennsylvania Railroad Company, 374 Pa. 89, 91, 97 A.2d 63, 65 (1953). “Wanton misconduct means that ‘the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ ” Smith v. Brown, 283 Pa.Super. 116, 120, 423 A.2d 743, 745 (1980) quoting Evans v. Philadelphia Transportation Company, 418 Pa. 567, 574, 212 A.2d 440, 443 (1965). Accord: Moss v. Reading Company, 418 Pa. 598, 601, 212 A.2d 226, 228 (1965); Canery v. Southeastern Pennsylvania Transportation Authority, 267 Pa.Super. 382, 388 n. 1, 406 A.2d 1093, 1095 n. 1 (1979).

Pennsylvania courts have adopted the standard for reckless or wanton misconduct set forth in Section 500 of the Restatement (Second) of Torts. See: Parker v. Jones, 423 Pa. 15, 20, 223 A.2d 229, 232 (1966); Evans v. Philadelphia Transportation Company, supra, 418 Pa. at 574, 212 A.2d at 444; Turek v. Pennsylvania Railroad Company, supra 369 Pa. at 343, 85 A.2d at 846; Junk v. East End Fire Department, 262 Pa.Super. 473, 481-482, 396 A.2d 1269, 1273 (1978). Section 500 of the Restatement (Second) of Torts provides:

“The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.”

Comment g of Section 500 of the Restatement (Second) of Torts provides further:

“g. Negligence and recklessness contrasted. Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man...”

As a general rule, it is for the jury to determine whether a defendant has been guilty of wanton misconduct under the circumstances. Evans v. Philadelphia Transportation Company, supra 418 Pa. at 577, 212 A.2d at 445; Kasanovich v. George, supra 348 Pa. at 204, 34 A.2d at 526. However, where, as here, the appellant introduced no evidence to show that the appellee-driver acted in reckless disregard of an existing peril, the issue of wanton misconduct should not be submitted to the jury. Parker v. Jones, supra; Moss v. Reading Company, supra 418 Pa. at 601-603, 212 A.2d at 228-229; Corona v. Pittsburgh Railways Company, 418 Pa. 136, 142, 209 A.2d 425, 428 (1965); Zawacki v. Pennsylvania Railroad Company, supra 374 Pa. at 92, 97 A.2d at 65.

Appellant argues that a jury could have found Frazer guilty of wanton misconduct because he failed to remove his truck from Route 15 at the State Hill Road interchange and also because he failed to stop immediately to investigate the cause of the flickering lights. She also contends that wantonness could have been found because of an alleged statement attributed to Frazer, but refuted by the truck’s maintenance record, that the owner had experienced a prior malfunction of the truck’s electrical system.

There is no merit in these arguments. Frazer had not driven the truck for more than a year. On the night in question he had driven the truck from Buffalo, New York without incident before the lights began to flicker along Route 15. When the lights flickered for the first time, there was then no reason to believe that the truck’s entire electrical system and engine would fail before he could achieve his destination. Moreover, if he failed to act promptly to remove the truck from the highway, he was guilty of negligence, not wanton misconduct. In short, there was no evidence from which a jury could properly have found that Frazer intentionally or wantonly allowed his vehicle to stop on the exit ramp in reckless disregard of the known presence of appellant’s or any other approaching vehicle. The jury could find, as it did, that there was an element of negligence in appellant’s conduct under the circumstances shown by appellant’s evidence, but there was no evidence from which it could have found a reckless disregard of a known danger. Therefore, the trial court properly refused to instruct the jury regarding wanton misconduct.

Because there was an absence of evidence from which a finding of wanton misconduct could have been made, we do not determine whether the Comparative Negligence Law requires an apportionment of fault where one of the parties has been guilty of wanton misconduct. The courts of Wisconsin, where a comparative negligence law has been enacted which is similar to that in Pennsylvania, have held that an apportionment of fault must be made where a defendant’s wanton misconduct has caused injury to a negligent plaintiff. Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962). See also: Plyler v. Wheaton Van Lines, 640 F.2d 1091 (9th Cir.1981) (applying California law); Billingsley v. Westrac Company, 365 F.2d 619 (8th Cir.1966) (applying Arkansas law); Amoco Pipeline Company v. Montgomery, 487 F.Supp. 1268 (W.D.Okla.1980); Sorenson v. Allred, 112 Cal.App.3d 717, 169 Cal.Rptr. 441 (1980). Other jurisdictions have reached a contrary result. See: Ryan v. Foster & Marshall, Inc., 556 F.2d 460 (9th Cir.1977) (applying Oregon law); Danculovich v. Brown, 593 P.2d 187 (Wyo.1979); Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979); Draney v. Bachman, 138 N.J.Super. 503, 351 A.2d 409 (1976). See also: Johnson v. Tilden, 278 Or. 11, 562 P.2d 1188 (1977); Wing v. Morse, 300 A.2d 491 (Me.1973); Schwartz, Comparative Negligence § 5.3 (1974). We express no opinion.

The judgment is affirmed.

      . 42 Pa.C.S. § 7102.


author: MONTEMURO, Judge:

text:
    454 A.2d 122
    COMMONWEALTH of Pennsylvania v. Richard Allan WRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1981.
    Filed Dec. 23, 1982.
    Petition for Allowance of Appeal Denied June 3, 1983.

      Stanton D. Levenson, Pittsburgh, for appellant.
    . Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County on February 17, 1981. The appellant, Richard Allan Wright, was found guilty by a jury of Theft by Deception and Forgery. Post-verdict motions were heard and denied and the appellant was sentenced to five (5) years probation. The only issue raised on appeal is that the trial court erred in allowing the admission of improper rebuttal evidence prejudicial to the appellant. We find no merit in the appellant’s contention and consequently affirm the judgment of sentence.

The facts giving rise to this case occurred on May 18-19, 1979. On the night of May 18 or the early morning of May 19, a savings account passbook belonging to one Martin Lawrence was stolen from the trunk of his automobile. Mr. Lawrence reported the theft at approximately 8:45 A.M. on May 19. At approximately 9:45 A.M. of that day, the stolen passbook and a forged withdrawal slip in the amount of Five Thousand ($5,000.00) Dollars were presented at the drive-in window of the Shadyside Branch of Equibank to teller, Patricia Hamilton, by the driver of a late model dark car. In the car were the driver, a male passenger in the front and a female passenger in the back. The driver of the car was within four (4) feet of Miss Hamilton and the entire transaction took approximately ten (10) minutes. At trial, Miss Hamilton identified the appellant as the person who presented the passbook. She testified that she specifically recalled the transaction because of the large amount of money involved and because of the large denominations requested by the party.

The appellant testified that he and his wife left their home in Forest Hills at 9:30 A.M. on May 19 and drove to the office of Ridge Homes in Corapolis, at 10:00 A.M., or shortly thereafter. The Wrights had an 11:00 A.M. appointment with a sales representative of Ridge Homes to examine blueprints of a house they were purchasing. They remained at the office until around 12:00 P.M., when they returned home. This testimony was corroborated by the appellant’s wife and by Donald Burkley, an employee of Ridge Homes, who was present at the office when the Wrights arrived. On cross-examination, the appellant testified that he owned a black Buick and also that, “Nobody ever have [sic] driven my car.”

The controversial testimony herein is that of Robert M. Smith, assistant manager of the South Hills Village branch of Equibank. Mr. Smith testified in the prosecution’s casein-chief that at approximately 3:45 P.M. on May 19, the stolen passbook and another forged withdrawal slip were presented to a teller at the South Hills Village Equibank. By this time, bank officers had been alerted that the particular bankbook was stolen. Mr. Smith refused payment and kept the bankbook. He then let the person who presented the passbook out of the bank. The prosecution also wished to present Mr. Smith’s testimony that after he permitted the third party to leave the bank, he followed the party to the parking lot and observed him entering the passenger side of a late model black Buick sedan. Smith copied down the license number of the vehicle and it was subsequently discovered to be registered to the appellant. The trial court ruled in an in camera pre-trial hearing that Mr. Smith could not testify regarding the license plate and the description of the vehicle. The rationale was that the evidence was not relevant and it would be highly prejudicial since there was no identification of any person in the vehicle.

However, later in the trial, the lower court reversed its earlier ruling and allowed the previously excluded testimony in order to rebut the appellant’s statement that no one had ever driven his car.

The appellant contends that the trial court’s original ruling was correct and that the court erred in admitting the testimony in rebuttal because: (1) it was irrelevant and highly prejudicial; (2) the appellant did not testify regarding any of the events of the afternoon of May 19 on direct examination; (3) the district attorney may not cross examine a defendant on a collateral matter not testified to on direct examination in order to establish a ground for the admission of otherwise inadmissible evidence; and (4) the evidence did not rebut the appellant’s testimony since the appellant made inconsistent statements regarding the use of his vehicle on the day in question.

The Commonwealth counters with the argument that the appellant opened the door to attacks on his credibility by taking the stand. Since the appellant testified that no one else had ever driven his vehicle, and that the passbook had never been in his vehicle, the trial court allowed the rebuttal testimony solely to impeach the defendant’s assertions.

In order to succeed in this appeal, the appellant must show that the trial court abused its discretion in admitting the evidence. Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981). We do not believe that the appellant has met this standard.

Extrinsic evidence is improperly admitted in rebuttal if it is relevant only to a collateral matter. Thus our focus is whether the issue upon which this testimony was admitted was material or collateral. In determining what is and what is not a collateral matter, it was stated in Commonwealth v. Kline, 163 Pa.Super. 408, 62 A.2d 73, 74, 75 (1148) (quoting Commonwealth v. Petrillo, 341 Pa. 209, 223, 19 A.2d 288, 295 (1941):

No witness can be contradicted on.everything he testifies to in order to “test his credibility.” The pivotal issues in a trial cannot be “sidetracked” for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. A witness can be contradicted only on matters germane to the issue trying.. There is no rule more firmly established than this: “No contradiction shall be allowed on collateral matters.” (citations omitted)
“The test of materiality of a fact brought out on cross-examination is whether the party cross-examining would be entitled to prove it as part of his own case.” Henry, Trial Evidence, 3d Ed. § 470. (emphasis in original) See also Herr v. Erb, 163 Pa.Super. 430, 435, 62 A.2d 75, 77 (1948); McGoldrick v. Pennsylvania Railroad Company, 430 Pa. 597, 241 A.2d 90, 92-93 (1968) (contradicting evidence is collateral if it may not be admitted into evidence for any purpose independent of the contradiction).

In the present case, the testimony of Mr. Smith was introduced to rebut the assertions of the appellant brought out on cross-examination that nobody had ever driven his car, that he had never been in possession of the stolen passbook, and that the stolen passbook had never been in his automobile. The question is whether the prosecution would be able to establish the contradictory facts as part of their own, case; i.e., whether they were admissible for any purpose independent of the contradiction.

We conclude that the contested evidence was properly admitted by the trial court inasmuch as it tended to establish the identity of the appellant as the perpetrator of the charged offense. Alternatively, because of the similar features of the morning and afternoon incidents, it demonstrates that the appellant engaged in a pattern of criminal activity.

Evidence of other criminal acts is generally inadmissible. However, several exceptions have been consistently recognized by the courts of this jurisdiction. They include those cases where the evidence is introduced to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the other; or (5) the identity of the person charged with the commission of the crime on trial. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981). In addition, the probative value of the evidence of other crimes must exceed its prejudicial impact. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977); Commonwealth v. Hude, 156 Pa.Super. 439, 390 A.2d 183 (1978). The contested evidence herein falls within both the “identity” and “common scheme or plan” exceptions and moreover, is of sufficient probative value to overcome any prejudicial impact it might have. The evidence is therefore relevant for a purpose independent of the contradiction and was properly admitted by the trial court.

Four factors influence our decision. First, the identification of the appellant by the drive-in teller as the presenter of the passbook and her testimony that he drove a late model dark car on the morning of the theft. Second, the appellant’s assertion that nobody else had ever driven his vehicle, that he had never been in possession of the stolen passbook and that the stolen passbook had never been in his vehicle. Third, the role of the black Buick in the afternoon attempted theft. Fourth, the use of the stolen passbook in both the morning and afternoon incidents. Clearly, the interrelation of these factors tends to support an inference that appellant was the perpetrator of the morning offense. Furthermore, the similarity between the morning and the afternoon incidents is sufficiently close to find them part of a common scheme or plan.

We find that the evidence was also properly admitted on rebuttal. The evidence casts doubt on the credibility and veracity of the appellant’s testimony and brings before the jury a valid issue of credibility which is material to the resolution of the apparent conflict between the identification testimony of the drive-in-teller and the alibi testimony of the appellant.

In regard to the appellant’s contention that rebuttal testimony was improper because it contradicted matters raised on cross-examination which were not addressed in the direct examination, we find no merit in that argument. Appellant’s counsel failed to object to the prosecution’s cross-examination of the appellant and therefore they have waived this issue. Commonwealth v. Klick, 272 Pa.Super. 61, 414 A.2d 669 (1979).

Finally, the appellant contends that the contested evidence did not rebut the appellant’s testimony since the appellant made inconsistent statements regarding the use of his vehicle on the day in question. We find that the admission of the contested evidence was properly within the discretion of the trial court given the appellant’s assertions of exclusive control over the vehicle.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3922(a)(1).

      . 18 Pa.C.S.A. § 4101(a)(2).

      . In addition to the passbook and withdrawal slip there was a note requesting specific denominations of bills presented to the teller. The figures in the note were added incorrectly actually totalling Six Thousand ($6,000.00) Dollars. When the teller alerted the driver of the mistake, he turned and faced her affording the teller an additional opportunity to examine the driver’s features.

      . In the afternoon attempted theft, the person who presented the passbook and forged withdrawal slip was not the appellant, but a third party. Mr. Smith testified that the third party had been present in the courtroom during the trial, albeit not at the time Mr. Smith testified. The Commonwealth has not instituted any criminal proceeding with regard to the afternoon incident.

      . In its charge to the jury the trial court stated with regard to the contested evidence, “Members of the jury, that is not substantive evidence. It has nothing to do with these charges against Mr. Wright. The Commonwealth offered that evidence merely as to impeach the credibility or believability of the defendant, Mr. Wright. I hope I have made that clear to you. It has nothing to do with this case other than that was offered to determine or to impeach or test the credibility of the testimony of Mr. Wright himself.”

      . The testimony of the appellant upon which the lower court relied stated:
      Q. Now, sir, you do own a black Buick? Is that right?
      A. Yes.
      Q. And sir, did not own that Buick on May 19th?
      A. I can’t remember.
      Q. That’s the car you were operating that entire day; is that right?
      A. That is correct.
      Q. Did you ever let anyone else operate that vehicle?
      A. Never. Nobody ever have driven my car.
      Q. Nobody has ever driven your car?
      A. No.
      Q. That particular car was in your possession the entire day?
      A. Not the entire day.


author: WATKINS, Judge:

text:
    454 A.2d 126
    SHAMOKIN AREA SCHOOL AUTHORITY v. The FARFIELD COMPANY (JADEN ELECTRIC DIVISION) and American Arbitration Association. Appeal of The FARFIELD COMPANY (JADEN ELECTRIC DIVISION).
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1981.
    Filed Dec. 23, 1982.

      Kenneth I. Levin, Philadelphia, for appellant.
    Paul L. Seave, Shamokin, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   WATKINS, Judge:

This case concerns an appeal from the Court of Common Pleas of Northumberland County which held that the Shamokin Area School District Authority’s obligation to arbitrate disputes arising out of the construction contract ended with the completion of the work; that the defendant-appellant The Farfield Company (Jaden Electric Division) did not demand arbitration prior to the completion of the work; and that the contract between Jaden and the school district as to whether the request for arbitration was timely made was to be decided by the Court of Common Pleas and not by the Board of Arbitrators.

We agree that the final decree of the court below which confirmed the Decree Nisi in all respects must be reversed with instructions that the petition of Jaden to compel arbitration and stay the action in equity pending arbitration and that the injunction granted to the school district enjoining arbitration be vacated, in that the decisions made by the court below were errors of law.

The appellee authority of the school district commenced an action in equity seeking to enjoin an arbitration proceeding filed with the American Arbitration Association by the Jaden Electric Division of the Farfield Company. Jaden was the electrical contractor under contract with the Authority for the construction of the Shamokin Elementary School.

Concurrent with the filing of the suit, Jaden petitioned to compel arbitration and stay the equity suit pending the outcome of arbitration.

Jaden contends that the Court of Common Pleas erred as a matter of law in (1) holding that the Authority obligation was effective only during the course of construction; (2) concluding that the work was completed; and (3) rejecting Jaden’s contention that the issue of the timeliness of its demand for arbitration was a question for the arbitrators rather than the court.

The applicable provisions of the contract concerning arbitration are as follows:

“7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payments as provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof
“7.10.2 Notice of the demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect. The demand for arbitration shall be made within the time limits specified in Subparagraphs 2.2.10 and 2.2.11 where applicable, and in all other cases within a reasonablé time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.
“7.10.3 The Contractor shall carry on the Work and maintain the progress schedule during any arbitration proceedings, unless otherwise agreed by him and the Owner in writing.”

It was apparent that the electrical work was not entirely completed because the court below in its opinion stated that the work still to be done would take no more than one day. One day or not, this clearly indicates that the work was not completed. It was also clear from the evidence that the work to be done was not due to the fault of Jaden because of necessary preliminary work.

As to timeliness of Jaden’s demand for arbitration, the Supreme Court of Pennsylvania has made it clear that where, as here, the parties have agreed to arbitrate all issues arising from the contractual relationship, procedural questions such as timeliness are reserved for the arbitrators. Kardon v. Portare, 466 Pa. 306, 353 A.2d 368 (1976); Muhlenberg Township School District Authority v. Pennsylvania Fortunato Construction Co., 460 Pa. 260, 333 A.2d 184 (1975). See School District of The City of Duquesne v. Duquesne Education Association, 475 Pa. 279, 380 A.2d 353 (1977); Shaler Area Education Association v. Shaler Area School District, 61 Pa.Comm.Ct. 211, 433 A.2d 168 (1981); Pennsylvania Labor Relations Board v. Greater Johnstown Area Vocational-Technical School, 48 Pa.Comm.Ct. 604, 410 A.2d 1290 (1980).

In the instant case, the contract expressly provides: “All claims, disputes and other matters in question concerning or relating to this contract and any dispute ... as to the interpretation of the contract document shall be decided by arbitration.” It follows that in Muhlenberg and Kardon, supra, that in the absence of express exclusions, adopted by the parties, to the broad language referring all issues to arbitration should be construed as conferring on the arbitrators the power to decide procedural questions as timeliness and the substantial matters raised.

Even if the court below was not in error as to the completion of the work, the obligation to arbitrate services survived the completion of the work. Chester City School Authority v. Aberthaw Construction Company, 460 Pa. 343, 333 A.2d 758 (1975); Westmoreland Hospital Association v. Westmoreland Construction Company, 423 Pa. 225, 223 A.2d 681 (1966).

The “work delay” provision 7.10.3 as set forth above, which the court below seized upon to hold that the arbitration obligation is limited to the completion of the work only provides for the continuance of the performance of the work in the event of arbitration.

In Chester, supra, the court concluded that the standard AIA provision authorized arbitration even after the performance of the work had been concluded. The result in Westmoreland, supra, was not based solely upon the “work delay” clause but upon a clause which expressly barred arbitration once final payment had been accepted. No such provision exists in the instant contract and Jaden has not accepted final payment.

Finally the Supreme Court in Chester, supra, held that the AIA “work delay” provision 7.10.3 did not limit the time when arbitration was demanded:

“In our view, 7.10.3 was only to provide for continuation of work in those areas not related to the disagreement. It clearly was not an attempt to further amend 7.10.2 which set forth the time limitations on the right to demand arbitration.”

In Gavlik Construction Company v. H.F. Campbell Co., 526 F.2d 777 (3rd Cir.1975), decided shortly after Chester, supra, the court was confronted with the same question, i.e. whether the existence of a “work delay” clause in a construction contract limits the availability of arbitration to the period of performance. The court held:

“Gavlik contends that its claim for payment due, following its complete performance under the subcontract, is not arbitrable. This argument is based upon the last sentence of Article 22 of the subcontract which provides:
... The Subcontractor shall not cause a delay of its work due to any disagreement or dispute during any arbitration resulting therefrom, except by agreement with Contractor.
“Under Gavlik’s theory, this work delay clause limits arbitration to those disputes that arise only during the course of performance.
“Gavlik, in seeking authority for this position, relies upon our decision in Hussey Metal Division v. Lectromelt Furnace Division, 471 F.2d 556 (3rd Cir.1973), and the Pennsylvania cases cited therein. In Hussey this Court considered an arbitration clause consisting of three basic parts: (1) a broad provision providing for arbitration of all disputes, (2) a provision ensuring that construction work would not be delayed during arbitration, and (3) a provision requiring a demand for arbitration no later than the time for final payment. The question in Hussey was whether a party could invoke the arbitration clause after having completed its performance under the contract in order to resolve a dispute as to a payment owing.
“We held in Hussey that the dispute was not subject to arbitration. In so doing, we relied on the Pennsylvania Supreme Court’s construction of identical contract provisions in Westmoreland Hospital Assoc. v. Westmoreland Construction Co., 423 Pa. 255, 223 A.2d 681 (1966) and Emmaus Municipal Authority v. Eltz, 416 Pa. 123, 204 A.2d 926 (1964).
“The Gavlik arbitration clause differs from the arbitration clause found in Hussey, supra. Article 22 of the Gavlik subcontracts contains a broad arbitration provision and a work delay provision. However, Article 22 does not require that a demand for arbitration be made prior to a certain date [the time for final payment]. It is this latter provision, found in Hussey but not here, that we find to be crucial. While the inclusion of both a work delay and a time limitation clause together restrict arbitration to disputes arising during the course of construction, that result does not follow from the work delay clause alone.

See also, Schneider Inc. v. Research-Cottrell, Inc., 474 F.Supp. 1179 (W.D.Pa.1979), in which the court held:

[Plaintiff] argues that the instant claim is beyond the scope of Section 56 (the arbitration provision) because the duty to arbitrate the reunder expired when the contract was terminated, which in this case was when plaintiff completed performance. Plaintiff cites the following Pennsylvania and Third Circuit cases in support of its position: Westmoreland Hospital Association v. Westmoreland Construction Co., 423 Pa. 255, 223 A.2d 681 (1961); Emmaus Municipal Authority v. Eltz, 416 Pa. 123, 204 A.2d 926 (1964); Hussey Metal Division v. Lectromelt Furnace Division, 471 F.2d 556 (3rd Cir. 1972). And these cases do appear to lend weight to plaintiffs argument. However, the Pennsylvania Supreme Court’s later ruling in Chester City School Authority v. Aberthaw Construction Company, 460 Pa. 343, 333 A.2d 758 (1975) erodes whatever support Westmoreland Hospital and Emmaus may have dispositive of the issue concerning the scope of Section 56.
“The court held that a stay [of court proceedings] was proper even though the demand for arbitration was made after the expiration of the contract, ruling that Emmaus was distinguishable on the ground that its arbitration clause, unlike the one in Chester, contained a provision specifically requiring that a demand for arbitration be made no later than the date of final payment. The court held that the inclusion of such a clause indicated that the parties intended the duty to arbitrate to expire when the contract did.
“Similarly the Schneider court noted, the contract in Westmoreland was distinguishable on the same basis, ‘since it too required the demand for arbitration to be made prior to the date of final payment.’ ”

Even if there was ambiguity in the clause considered, which doesn’t appear to exist and if it was intended to limit the arbitration obligation to the period of construction, explicit language could have been included to that effect. The doctrine which requires ambiguity to be resolved against the drafter, the school district, fortifies the conclusion that the obligation to arbitrate was not limited to the period of construction.

The final decree is hereby reversed in all respects, with instructions to the Court of Common Pleas to grant the Petition of The Farfield Company (Jaden Electric Division) to compel arbitration and to stay the action in equity pending arbitration and to vacate the injunction obtained by Shamokin Area School Authority.


text:
    454 A.2d 129
    Teresa BERRESFORD, Appellant, v. Russell BERRESFORD, Joseph Berresford, Dolores Berresford.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1982.
    Filed Dec. 23, 1982.

      William J. Krencewicz, Shenandoah, for appellant.
    Maureen E. Krueger, Pottsville, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   PER CURIAM:

This is an appeal from an order entered over two and one half years ago dismissing appellant’s petition for custody of her child and awarding custody to appellee.

The record was not transmitted to this court until July 1, 1982, and even now the record is not complete, for the lower court has not filed an opinion in support of its order. It is therefore impossible for this court to decide the merits of the lower court’s decision:

So as to facilitate [our] broad review, we have consistently emphasized that the hearing court must provide us ... with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision, [citations omitted] ... We have often noted that the hearing judge is in a far superior position to determine matters of credibility, and to evaluate the attitude and sincerity of the witnesses. [citations omitted] Such an advantage is negated, however, when the trial court fails to enunciate its findings on credibility, or reveal the details of its decision.
While we might review the record and reach a conclusion without the benefit of a proper analysis by the lower court, such a course would serve neither the best interests of the children nor the Commonwealth. We are loath to pass judgment on something as precious and intrinsically valuable as a child’s welfare without every possible piece of information bearing on the subject. It is for this reason that we demand a full record and a probing analysis thereof.
In re Arnold, 286 Pa.Super. 171, 174-75, 428 A.2d 627, 628-29 (1981).

See also Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982).

Accordingly, we shall remand the case with instructions that a hearing be conducted as soon as possible. At that hearing the lower court shall receive such evidence as necessary to bring the record up to date. The record shall then be transcribed forthwith, and the lower court shall promptly enter an order awarding custody, accompanying its order with an opinion in the form required by law. Pending these further proceedings, the child may remain with appellee. We do not retain jurisdiction.

So ordered.


author: PRICE, Judge:

text:
    454 A.2d 130
    Susan Raye WALKER v. Joel WALKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Dec. 30, 1982.

      Arthur L. Jenkins, Jr., Norristown, for appellant.
    Michael Silberman, Blue Bell, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   PRICE, Judge:

This appeal concerns the confirmation of an arbitration award dealing with matters of child custody and child support under the terms of a separation agreement. For the following reasons, we remand the case for the filing of a more comprehensive opinion by the court below.

In June of 1978, appellant, Joel Walker, and appellee, Susan Raye Walker, now divorced, executed a separation agreement. The agreement provided, inter alia, that the parties were to have joint custody of their two minor children, each parent having equal time with each child, and that Mr. Walker was to pay Mrs. Walker the sum of $240.00 per month for the care, support, and maintenance of their children. The agreement also included a provision for the arbitration of any dispute relating to the custody and support provisions therein “as distinguished from a Petition for Habeas Corpus or confirmation of custody.” (R. 43a).

The children apparently began to spend more than one half of their time with their father, and in December of 1978, Mr. Walker paid Mrs. Walker only $120.00 for the month, based upon the average number of days that the children had been spending with her. Mrs. Walker objected to appellant’s conduct, and the dispute was submitted to the arbitrator named in their agreement.

On January 4, 1979, the arbitrator rendered his decision. He determined that “Mr. Walker should affirmatively encourage the children to spend an equal time with both parents and Mr. Walker should make support payments of $240.00 per month.” (R. 52a). Appellee filed a Petition To Confirm And Enforce The Arbitration Award, and a hearing was held in the Court of Common Pleas of Montgomery County on May 31, 1979. Prior to the hearing, appellant filed preliminary objections, challenging the jurisdiction of the court.

On July 3, 1979, the court below dismissed appellant’s preliminary objections and confirmed the award of the arbitrator in its entirety. Under the terms of the court’s July 3 order, Mr. Walker was enjoined from “interfering with [Mrs. Walker’s] right of joint custody of the minor children” and ordered to pay child support as set forth in the separation agreement. The parties were also ordered to formulate a schedule for custody monthly per their agreement. Order of July 3, 1979, No. 79-09216.

Appellant filed exceptions to this order. After the exceptions were filed, but prior to argument thereon, the court held a hearing on a “Petition for Contempt, or, in the Alternative, for Custody” filed by Mrs. Walker pursuant to the order of July 3. On November 29, 1979, after hearing the testimony of the parties and of their children, the court, pending further hearing, awarded custody of the children to Mr. Walker. Mrs. Walker was granted specific visitation rights, whereby she was to have the children essentially on alternate weekends.

On December 20, 1979, appellant’s exceptions were dismissed by the court en banc, and the order of July 3 reconfirmed. This appeal followed. The conflict between the order of July 3 (and the award of the arbitrator confirmed therein) with the court’s order of November 29, granting custody to appellant and specific limited visitation to appellee, compels our remand.

The court was, of course, not bound by the parties’ agreement with respect to custody. Contracts as to the custody of minor children are always subject to being set aside in the best interests of the child. Commonwealth ex rel Children’s Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949); Commonwealth ex rel Veihdeffer v. Veihdeffer, 235 Pa.Superior Ct. 447, 344 A.2d 613 (1975). Here, however, it is not clear what the court below intended. The order of July 3 enjoined Mr. Walker from “interfering with [Mrs. Walker’s] right of joint custody” and contemplated a visitation schedule set up by the parties on an equal time basis, and thus is in direct conflict with the order of November 29. We suspect that the decision to award custody to Mr. Walker was based upon a determination of the best interests of the children, but no discussion of the basis for this decision appears in the opinion of the court.

We cannot proceed to dispose of this appeal challenging the confirmation of the arbitrator’s award without the benefit of the reasoning of the court below in granting custody to Mr. Walker and its analysis of the relationship between this custody decision and the arbitration award. We note that when Mr. Walker was granted custody, an evidentiary hearing was scheduled for June 4, 1980 on the progress of custody. On remand, we direct the court below to apprise us of any developments which may have occurred since this appeal was taken.

This case is remanded for a comprehensive opinion as to the basis of the custody determination of November 29, 1979 and its relationship to the arbitration award. Jurisdiction is not retained.


author: ROWLEY, Judge:

text:
    454 A.2d 132
    COMMONWEALTH of Pennsylvania v. Orlando McCREA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 3, 1982.
    Filed Dec. 30, 1982.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   ROWLEY, Judge:

On April 23, 1981, appellant was convicted, after a non-jury trial, of attempted burglary and possessing instruments of crime (a pair of pliers and a pocket knife). Post-trial motions were filed and denied and appellant was sentenced to time served for possessing instrument of crime and three years probation for attempted burglary. This appeal followed.

Two issues are raised on appeal: 1) Was the evidence sufficient to support the convictions?; and 2) Did appellant’s sentence violate 18 Pa.C.S.A. § 906, which bars conviction of more than one inchoate crime?

The following evidence was presented at trial. At approximately 2:55 A.M. on May 31, 1980, Officer Ommit Levine went to the Park’s Farm Market at 5131 Woodland Ave., Philadelphia, in response to a police radio call. The officer, carrying a flashlight, entered the alley behind the market. This alley was described as being six to seven feet wide and L-shaped. The only means of access to or exit from the alley, other than from Woodland Ave., would be by climbing a six to seven foot brick wall at the rear of the alley. The officer observed appellant, who was in the process of urinating, about twenty feet into the alley. He waited until appellant had finished, then told him to place his hands on the wall. Appellant then “took his right hand to reach into his belt to grab some object”. The officer “grappled” with appellant, forced him to the ground, and took a pair of pliers from inside his belt. After handcuffing him, the officer found a pocket knife in appellant’s right front pocket. Because the blade was bent, the knife would only close part way.

Other officers arrived at the alley and the area was searched. A jackbase with a smudge of aqua colored paint on it was found approximately four feet from where appellant was standing. Around the corner of the L-shaped alley, approximately ten to twelve feet from where appellant was first observed, a one foot by one foot hole was discovered in the cinderblock wall of the market, which was painted aqua. The hole did not go through the wall.

The only other witness presented by the Commonwealth was the owner of the market, who testified that the hole had not been there when he had closed the store the previous evening.

Appellant presented no evidence.

The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975). Circumstantial evidence alone may be sufficient to sustain a conviction. Commonwealth v. Jacobs, 247 Pa.Super. 373, 372 A.2d 873 (1977). However, a conviction must be based upon more than mere suspicion or conjecture. Commonwealth v. Rambo, 488 Pa. 334, 412 A.2d 535 (1980).

All that the Commonwealth has proven in this case is that appellant was urinating in an alley at 2:55 A.M., approximately ten to twelve feet around the corner from a hole in the wall of a store. Mere' presence at the scene of a crime is insufficient to sustain a conviction. Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966).

Although appellant had a pair of pliers and a broken knife in his possession, there was no dust or paint on them. There was no evidence that they had any relationship to the attempted crime or that appellant intended to use them for any criminal purpose. Although a jackbase was found four feet from where appellant was standing, the trial court concedes in its opinion that there was reasonable doubt that the jackbase was ever in appellant’s possession.

The trial court analogizes the fact that appellant did not “peaceably surrender” to an attempt to flee the scene. However, the additional element of flight, which is as consistent with fear as with guilt, does not convert mere presence into proof of guilt. Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976).

Even viewing this record in the light most favorable to the Commonwealth, we must conclude that the evidence in this case was not sufficient to sustain either the conviction of attempted burglary or the conviction of possessing instruments of crime. Accordingly, the Judgment of Sentence will be vacated.

In view of of our disposition of the sufficiency question, it is not necessary for us to address the issue relating to appellant’s sentence.

Judgment of sentence vacated. Appellant is discharged.

      . On direct examination, the officer testified that the hole was approximately six feet from appellant. However, on cross-examination he admitted that the correct distance was actually ten or twelve feet, as he had testified at the preliminary hearing.


author: JOHNSON, Judge:

text:
    454 A.2d 134
    Garrett HIERS, Jr. Administrator of the Estate of Garrett Hiers, III v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1982.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      David J. Otis, Media, for appellant.
    Kathleen Bilotta, King of Prussia, for appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   JOHNSON, Judge:

The order appealed from awarded appellee work loss benefits plus interest and costs, under the Pennsylvania No-fault Motor Vehicle Insurance Act, and dismissed that part of appellee’s petition which had requested attorney’s fees.

The facts of the case, taken in part from the excellent opinion of Judge Rita PRESCOTT for the court of common pleas, are as follows. Appellee is the administrator of his son’s estate. The son died on October 7, 1978, at the age of 29, as a result of injuries sustained in a motor vehicle accident. The decedent’s motor vehicle was insured by the appellant insurance company [Keystone],

The action was commenced on September 28, 1979, but following a petition for extension of time pending the decision of our supreme court in Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), the petition for no-fault benefits at issue in this case was actually filed on January 15, 1981. Keystone had been first advised of the loss on November 16, 1978, and presented with a claim for no-fault benefits on September 26, 1979. Keystone denied the claim, but ultimately paid funeral expenses on April 11, 1979.

The court of common pleas granted the petition with respect to the work loss benefits, interest and costs, but denied a claim by appellee for attorney’s fees.

Appellant insurance company’s argument, in the court below and before this court, is that because appellee, as father and administrator of his son’s estate, was not dependent on his son, he is not entitled to work loss benefits. As in the court below, this argument fails.

In Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980), this court held that a widow was entitled to recover the work loss benefits which her husband would have received if he had been permanently injured in the accident. When the Heffner case came before our supreme court, it was consolidated with Pontius v. United States Fidelity and Guaranty Co., No. 80 March Term, 1978, Pa.Super.Ct., where the plaintiff was the administrator of a decedent’s estate. Neither the issue of the distinction between an individual as a survivor and the victim’s estate, nor the issue of dependency, appears to have been before the court in the Pontius and Heffner cases when the supreme court treated both claimants equally in determining that survivors of deceased victims were entitled to recover both survivor’s loss and work loss benefits under the No-fault Act.

This court was however confronted with the proper claimant issue in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982). In Freeze the claimant was the administrator of the estate of his son, an eleven year old child, who was struck and killed by an automobile while sled-riding. In Freeze this court en banc, per President Judge CERCONE, with HESTER, J., dissenting, ruled that the estate of a deceased victim was entitled to recover work-loss benefits under the No-fault Act.

The precise question of dependency was apparently not raised in Freeze. However, in Chesler v. Government Employees Insurance Co., 302 Pa.Super. 356, 448 A.2d 1080 (1982), the claimant was the administrator of the estate of her adult son on whom, as his mother, she was not dependent. The first question raised by the insurance company was whether the estate, as represented by the decedent’s mother as administrator, could recover work loss benefits. This question was disposed of affirmatively by the Freeze case. But the second question in Chester was whether the estate could collect survivor’s loss benefits where the administrator was not dependent on the decedent. After an analysis following the principles of statutory construction, President Judge CERCONE for the court en banc, HESTER, J., dissenting, decided that the word “dependent” contained in the definition of “survivor” in section 1009.103 of the No-fault Act was intended by the legislature to qualify only the word immediately preceding it—“relative.”

The No-fault Act in part defines “work loss benefits” as “loss of gross income of a victim.” 40 P.S. § 1009.103. This work loss is listed as one of the basic loss benefits in section 1009.202. The Act provides that “any victim or any survivor of a deceased victim is entitled to receive basic loss benefits____” 40 P.S. § 1009.201(a). “Survivor” is defined as shown supra, n. 4, and as interpreted by this court in Chester.

Based on the above, therefore, appellee, father of a victim of an automobile accident, suing as administrator of his son’s estate, may collect work loss benefits as provided for by the No-fault Act even though as father he was not dependent on his son for support.

The order awarding work loss benefits plus interest is affirmed.

Appellee requests that we remand for the establishment of a record with respect to his request for attorney’s fees. Attorney’s fees may be awarded under the No-fault Act where the court determines that the obligor has denied the claim without reasonable foundation. 40 P.S. § 1009.-107. Where an insurer provides reasonable arguments and is not shown to have acted in bad faith, the insurer is not liable for attorney’s fees. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). Until this court decided Freeze and Chesler the specific issues of the estate as a survivor entitled to work loss benefits, even where the administrator/parent was not dependent on ,the decedent, had not been directly answered by an appellate court. We cannot say that the insurer was unreasonable and in bad faith in its denial of the claim involved in this case. We therefore deny appellee’s request. See Baker v. Aetna Casualty & Surety Co., 308 Pa.Super. 292, 454 A.2d 1092 (1982). Cf. Motley v. State Farm Automobile Insurance Co., 303 Pa.Super. 120, 449 A.2d 607 (1982).

      . Act of July 19, 1974, P.L. 489, No. 176, Art I et seq.; 40 P.S. § 1009.101 et seq. (Purdon Supp.1982).

      . The ground for dismissal was the lack of facts regarding a reasonable amount of time expended by counsel. Hiers v. Keystone Insurance Co., No. 79-15885, slip op. at 8 (C.P. Delaware County, July 31, 1981).

      . Judge Hester concurred with the majority’s conclusion as to the proper application of the word “dependent”. His dissent, as in Freeze, was based on the fact that the appellant was in the position of administrator of the estate of the victim, not in her capacity as mother and survivor of the victim, and that the No-fault Act does not provide for the recovery of work loss benefits by the estate of a deceased victim.

      . The No-fault Act defines "survivor”, in pertinent part, as "child, parent, brother, sister or relative dependent upon the deceased for support.” 40 P.S. § 1009.103.


author: PER CURIAM: POPOVICH, Judge,

text:
    454 A.2d 136
    COMMONWEALTH of Pennsylvania v. John Irvin LEONARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1981.
    Filed Dec. 30, 1982.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Thomas L. Goodman, Lancaster, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   PER CURIAM:

This is a direct appeal from the denial of a petition seeking to modify a judgment of sentence. We dismiss the appeal as untimely.

On June 2, 1979, appellant was charged with eight counts of theft. The eight separate complaints were filed simultaneously with the district justice, and preliminary arraignment was held on all charges simultaneously. On November 19, 1979 appellant waived his right to a preliminary hearing and all eight counts were returned to the Lancaster County Court and docketed to eight separate docket numbers. On March 11, 1980 appellant appeared before the court and pled guilty to all eight counts of theft. On March 13, 1980 the court sentenced appellant, and ordered him to pay the costs of his prosecution on each of the eight indictments. Appellant filed a timely motion to modify the sentence under Rule 1410 of the Rules of Criminal Procedure, challenging the court’s multiple assessment of costs. The court thereupon entered a Rule to Show Cause to the Commonwealth. On April 1, 1980 the court entered an order extending the time in which this rule was to be returnable and purporting to extend the time in which appellant could appeal the court’s assessment of costs. The April 1 order reads in pertinent part: “Petitioner’s right to appeal from assessment of costs shall be extended for an additional 11 days.” At no time did the court vacate the judgment of sentence. Finally, on April 16, 1980, after the thirty day appeal period had run, the court purported to deny appellant’s petition. This appeal followed on April 24, 1980.

The instant appeal is clearly out of time. The mere scheduling of a hearing on a Rule 1410 motion does not affect the running of the time for appeal. Since the appeal lies from judgment of sentence the lower court cannot extend its time to consider a Rule 1410 motion unless it first vacates the sentence in question. It cannot simply extend the time for appeal. See Pa.R.Crim.P. 1410, Comments. Accordingly, since the instant appeal was out of time we are constrained to dismiss it without consideration of the merits.

Dismissed.

POPOVICH, J., files a concurring opinion.

POPOVICH, Judge,

concurring:

I concur in the result. However, I write separately to clarify what, at first blush, may appear to be an unduly harsh result. That is, the dismissal of appellant’s appeal because of the lower court’s (in)action.

Instantly, the appellant does not assert that the lower court failed to inform him of his appellate rights and the time stricture within which they had to be exercised to be preserved. Pa.R.Crim.P. 1405. As a result, it was the appellant’s obligation to comply with the applicable Rules of Criminal Procedure, in particular Pa.R.Crim.P. 1410, which provides in the Comment portion that:

“Under this rule, the mere filing of a motion for modification of sentence and the court’s scheduling of a hearing on the motion do not affect the running of the thirty day period for filing a timely notice of appeal, and the need for the defendant to file his appeal (both as to the merits of the case or as to the sentence) within that period.”

In other words, based on the preceding, the accused is wise to file an application for reconsideration below and a notice of appeal. See, e.g., Pa.R.App.P. 1701. In such instance, if the lower court does not vacate the judgment of sentence, either in connection with the granting of the motion for modification or in order to have additional time within which to consider the motion, and the motion for reconsideration is denied after the passage of the 30-day appeal period, the prior notice of appeal would be considered sufficient to preserve appellate review of a judgment of sentence. See Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982). Appellant, not having taken such steps here, will not be heard to complain and his appeal is determined sua sponte to be untimely, Commonwealth v. Dorman, 272 Pa.Super. 149, 414 A.2d 713 (1979); therefore, it is dismissed.


text:
    454 A.2d 138
    Charlotte STEINER, Appellant, v. Joseph LURIE and Quaker Storage Co.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied May 18, 1983.

      Irene H. Cotton, Philadelphia, for appellant.
    Georgeanne Terrill, Philadelphia, for appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   PER CURIAM:

Plaintiff has taken this appeal from a judgment entered in favor of defendant Quaker Storage Co., after the court below granted Quaker Storage’s motion for compulsory nonsuit. Plaintiff filed this appeal directly from the judgment, rather than filing a motion to remove the non-suit. An appeal does not lie from the entry of a judgment of nonsuit, but rather from the refusal to take it off, and this rule applies to actions in both law and equity. Panepinto v. Dummy’s Delightful Saloonery, 304 Pa.Super.Ct. 256, 258, 450 A.2d 668, 669 (1982), rearg. den’d. Accordingly, this appeal must be quashed. Id.

Appeal quashed.


text:
    454 A.2d 139
    COMMONWEALTH of Pennsylvania v. Anthony J. VENERI, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed Dec. 30, 1982.

      Anthony Veneri, appellant, in pro. per.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, BROSKY and ROWLEY, JJ.

       This case was reassigned to the above-named panel on October 21, 1982.

   PER CURIAM:

Before us is appellant’s direct appeal from his April 10, 1979, conviction by a jury of several crimes in connection with his attempted escape from the Delaware County Prison on Christmas Eve, 1978. Pro se and counselled post-verdict motions were filed and the trial court filed an opinion and entered an order denying relief on March 21, 1980. Six days later, after receiving a counselled amended motion for a new trial and arrest of judgment, the trial court entered an order withdrawing and rescinding the earlier opinion and order to allow the post-trial motions to be argued before the court en banc. The motions were briefed and argued by counsel. On May 28, 1981, an order was entered by the court en banc denying the post-trial motions. On June 23, 1981, appellant was sentenced to a total of two to four years imprisonment, fines totalling $30.00 and costs of prosecution. Appellant timely filed a pro se notice of appeal as well as a pro se brief. A brief for the Commonwealth has also been submitted.

On appeal, appellant raises seven assignments of error. However, the merits of these issues cannot be addressed at present because appellant is in need of a properly conselled advocate’s brief. At trial, through argument of the post-verdict motions and at sentencing, appellant was represented by the Delaware County Public Defender’s Office. However, the record does not reflect any participation by appellant’s counsel subsequent to the sentencing proceeding.

It is now beyond question that an indigent defendant must be afforded the advice and representation of counsel on direct appeal from his conviction of crimes such as those involved in this case. Counsel must provide that representation until he is properly relieved of his responsibility. Commonwealth v. Burgess, 263 Pa.Super. 234, 397 A.2d 833 (1979). See Pa.R.Crim.P. No. 302. In this case, counsel has neither filed a brief on behalf of his client nor has he filed a proper petition to withdraw his appearance pursuant to Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968) and its progeny. See Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Presented as they are, the issues in this case are incomprehensible; appellant is in need of a properly counselled advocate’s brief.

Counsel’s assistance, of course, is needed because an exploration of the legal ground for complaint, an investigation of the underlying facts and a more articulate statement of the claims are functions of an advocate that are inappropriate for a judge or his staff.

Commonwealth v. Lenhart, 296 Pa.Super. 131, 133, 442 A.2d 331, 332 (1982) (citation and quotation omitted).

In light of the foregoing circumstances and pursuant to the power granted to us by 42 Pa.C.S.A. § 706 to “require such further proceedings to be had as may be just under the circumstances,” we issue the following:

ORDER OF COURT
(1) The Delaware County Public Defender’s Office shall within thirty (30) days file of record in the trial court and serve on the trial judge a concise statement of the matters complained of on appeal in accordance with Pa.R. A.P. No. 1925(b), or, in the alternative,, within the same time period file in the trial court a petition to withdraw as counsel and brief in support thereof meeting the substantive requirements of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981); Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974); and Commonwealth v. Liska, 252 Pa.Super. 103, 380 A.2d 1303 (1977).
(2) If the Delaware County Public Defender is permitted to withdraw, the trial court shall forthwith appoint new counsel who shall, within thirty (30) days file the statement of matters complained of on appeal in accordance with Pa.R.A.P. No. 1925(b) as, described above.
(3) Within thirty (30) days after the filing of the Rule 1925(b) statement, the trial court shall file an order reinstating the earlier rescinded opinion by Judge Diggins or file an opinion for the court en banc. Upon the filing of such opinion, the record in this case is to be returned forthwith to this panel and listed at the same number and term. Commonwealth v. Coda, 283 Pa.Super. 408, 411, 424 A.2d 529, 531 (1981).
(4) Within thirty (30) days after the service and filing of the opinion, appellant’s counsel shall file an advocate’s brief in this court. Service shall be accomplished as provided by general rule.
(5) Within thirty (30) days after the filing and service of appellant’s counselled advocate’s brief, the Commonwealth, as appellee, shall file either a new brief or a written notice that it intends to stand upon the brief already submitted on its behalf. Service shall be accomplished as provided by general rule.

It is so ordered.

Jurisdiction is retained.

      . Appellant was convicted of kidnapping (two counts), terroristic threats (two counts), possession of instruments of crime, resisting arrest, possession of implements of escape, criminal attempt (escape), and conspiracy.

      . On the kidnapping conviction, appellant was sentenced to one to two years in prison plus a $10.00 fine and costs of prosecution; on the terroristic threats conviction appellant was sentenced to six to twelve months in prison plus a fine of $10.00 and costs of prosecution; and on the possession of instruments of crime conviction appellant was sentenced to six to twelve months imprisonment plus a fine of $10i00. The sentences for resisting arrest and for possession of weapons or implements of escape were suspended. The convictions for criminal attempt (escape) and conspiracy were held to have merged in the other convictions and no sentence was imposed. The sentences imposed were, as a group, to be served consecutively, but the total two to four year term was made concurrent with the terms appellant was then serving.

      . We are aware that there is another appeal pending before an en banc panel of this court in which appellant is challenging his conviction of other crimes. Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982). The events in the case at bar took place while appellant was in prison awaiting resolution of that appeal. Furthermore, at least one issue presented in this appeal is the same as that currently before the court en banc. We recognize the possibility that this duplication may have caused some confusion and oversight. Furthermore, this case was submitted to this court without oral argument and thus did not provide counsel with that added opportunity to detect any error at an earlier time.