author: CIRILLO, Judge:

text:
    469 A. 2d 244
    NATIONAL RECOVERY SYSTEMS, Appellant, v. Francis X. MONAGHAN.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1983.
    Filed Dec. 16, 1983.

      Melvin Rubin, Ardmore, for appellant.
    Stewart A. Eisenberg, Philadelphia, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County striking the judgment entered in favor of the appellant, National Recovery Systems. Appellant brought an assumpsit action against the appellee, Francis X. Monaghan, to collect a $7,500 loan which the latter failed and refused to repay. The case was heard' on its merits by an arbitration panel. After hearing, this panel found in favor of the appellant in the amount of $7,500 plus interest. On June 24, 1981, the Report and Award of the Arbitrators expressing the findings of the panel was docketed.

Pursuant to the Pennsylvania Rules of Civil Procedure, the appellee was entitled to an appeal of the arbitration award, and to a trial de novo before the Court of Common Pleas. Pa.R.C.P. 1308, 1311(a). In order to perfect such an appeal, a defendant must comply with the appropriate requirements and file the necessary documents not later than thirty days after the entry of the award on the docket. Pa.R.C.P. 1308(a). If no appeal is taken within thirty days after the docketing of the award, the award becomes final, and the Prothonotary shall enter judgment thereon. Pa.R. C.P. 1307(c).

It is undisputed that the appellee failed to comply fully with the technical requirements for perfecting an appeal of the arbitration award within the required thirty days. Pursuant to praecipe filed by plaintiff, the Prothonotary entered judgment on the award.

Subsequently, on August 28, 1981, appellee filed a Petition to Open or Strike Judgment with the Court of Common Pleas. This petition challenged the propriety of the Prothonotary’s entry of judgment. In his petition, appellee alleged that he made several attempts to file an appeal of the arbitration award within the thirty day period, but because of certain technical irregularities, the Prothonotary refused to accept the tendered appeal documents. The appellee requests that the Court overlook the minor imperfections, strike or open the judgment, and allow the appeal of the award to proceed. Appellee’s averments concerning efforts to file were denied by appellant in its answer to the petition. Thus, the assertion that appeal papers were ever tendered to the Prothonotary is now a fact in dispute.

The matter was assigned to Judge Guarino for disposition. After reviewing the matter, and in consideration of Rule 209 of the Pennsylvania Rules of Civil Procedure, Judge Guarino inquired whether appellee intended to take depositions to prove his allegations. On December 2, 1981, appellee’s counsel advised the court that he would not take depositions and asked the court to consider the matter on Petition and Answer. On March 16, 1982 without requiring further proceedings pursuant to Rule 209, Judge Guarino ruled in favor of appellee, and ordered the judgment stricken. In his Opinion below, Judge Guarino ruled that the appeal documents were in fact tendered, and that they should be considered to have been timely filed notwithstanding the minor imperfections. Judge Guarino considered the Prothonotary’s refusal to accept the papers to be an on the record defect. Because Judge Guarino opted to strike judgment, he did not address the question of whether judgment should be opened. This appeal followed.

The critical issue raised on appeal is whether Judge Guarino’s striking of judgment was proper. We hold that it was not.

It is well settled that a motion to strike judgment will not be granted unless a fatal defect appears on the record. Parliament Industries v. William H. Vaughan & Co., 501 Pa. 1, 459 A.2d 720 (1983); Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972); Academy House Council v. Phillips, 312 Pa.Super. 364, 458 A.2d 1002 (1983). Conceptually, a motion to strike judgment is in the nature of a demurrer directed to defects in the record. If the record is self-sustaining, the judgment cannot be stricken. James v. Reese, 250 Pa.Super. 1, 378 A.2d 422 (1977); Pattinato v. Moody, 248 Pa.Super. 32, 374 A.2d 1302 (1977).

Instantly, we reject Judge Guarino’s finding that the Prothonotary’s refusal to accept appellee’s appeal papers was an on the record defect. Appellee’s claim that he attempted to file appeal papers finds no support in the record as it existed when júdgment was entered. At the time of the entry of judgment the record only reflected the docketing of a valid arbitration award. There was no indication that an appeal of the award had been taken or attempted within the thirty day period. This matter is only brought to the attention of the court in appellee’s post-judgment Petition to Strike or Open Júdgment; otherwise it would have remained inapparent. Thus, the issue of rebuffed appeal efforts, now a point in controversy, finds its premise outside the record, and its sole support through extrinsic evidence. Accordingly, and as we find that the record at the time of judgment was regular and self-sustaining, we hold that judgment was improperly stricken. Order reversed.

Our review does not end here, however. Although we find that the record is without defects on its face and therefore the motion to strike is inappropriate, the issue of appellee’s motion to open remains unsettled. Moreover, it appears that a motion to open judgment is the proper procedure with which to dispose of appellee’s claim. Assuming arguendo, appellee did in fact tender appeal documents, there is no dispute that such papers were technically deficient. The issue is not, as Judge Guarino suggests, whether completed appeal papers were timely filed. Clearly they were not. Rather, the question at hand is whether a satisfactory explanation exists to excuse the failure to file promptly, and to allow an appeal to proceed.

Whereas a motion to strike is directed to defects on the face of the record, a motion to open addresses itself to irregularities predicated on matters outside the record. Bottero v. Great Atlantic & Pacific Tea Co., 316 Pa.Super. 62, 462 A.2d 793 (1983); Kophazy v. Kophazy, 279 Pa.Super. 373, 421 A.2d 246 (1980); Matlock v. Lipare, 243 Pa.Super. 167, 364 A.2d 503 (1976). While review of a motion to'strike is limited to consideration of the regularity of the record, a motion to open calls into play the court’s equitable and discretionary powers. Hutchings v. Trent, 404 Pa.Super. 376, 450 A.2d 729 (1982); Johnson v. Moore Motors, Inc., 285 Pa.Super. 237, 427 A.2d 200 (1981).

As we noted above, appellee’s challenge to the entry of judgment is predicated on matters outside the record. His principal claim is that his failure to file a timely appeal of the arbitration award is excusable, as caused in part by the Prothonotary’s refusal to accept the necessary papers. Appellee argues that the Prothonotary should have accepted the appeal documents even though they were not in strict compliance with the rules for arbitration appeals. This contention is premised on the postulation that minor deviations from the established rules should not prevent access to appeal. Since the court must weigh the equitable considerations attendant to appellee’s explanation for default, this matter is proper subject for a motion to open. Because Judge Guarino did not address appellee’s motion to open judgment, we remand for such consideration.

In evaluating the merit of appellee’s explanation for default, the lower court must first determine the truth of the allegations supporting appellee’s claim. As the material allegations contained in the petition are denied by appellant in its Answer, the appellee bears the burden of proving his asserted facts. Triffin v. Thomas, 316 Pa.Super. 273, 462 A.2d 1346 (1983); Retzbach v. Berman, 222 Pa.Super. 523, 294 A.2d 917 (1972). Therefore, the appellee must provide the court below with evidence to support his claim that appeal papers were tendered to the Prothonotary, but refused. The procedure for establishing the proof for a claim such as this is provided by Pennsylvania Rule of Civil Procedure 209.

We do not agree with appellant’s contention that Judge Guarino must accept all denials contained in the Answer as true. It would be premature for Judge Guarino to either find facts or accept denials without further proceedings under Rule 209. The mechanism for fact-finding established by Rule 209 has not yet been set into motion.

Appellant is not incorrect in asserting that the averments set forth in its Answer must be accepted as true if the appellee proceeds without taking depositions. Fourtees Co. v. Sterling Equipment Corp., 242 Pa.Super. 199, 363 A.2d 1229 (1976). However, appellee’s failure to take depositions does not automatically trigger Rule 209 to operate as an admission of facts in the Answer. Bell v. Jefferson Republican Club, 304 Pa.Super. 157, 450 A.2d 149 (1982). Rather, “only when the petitioner himself orders the cause for argument on the pleadings or when the petitioner ignores a rule absolute to move for depositions can the factual averments of a responsive answer be taken as true against the petitioner.” Bell v. Jefferson Republican Club, 304 Pa.Superior Ct. 161, 450 A.2d at 151. Accord, Owens v. McCurdy, 304 Pa.Super. 510, 450 A.2d 1028 (1982); Hutchings v. Trent, 304 Pa.Super. 376, 450 A.2d 729 (1982).

Instantly, while appellee has not taken depositions or set the matter for argument, appellant has not served a rule on appellee to show cause why he should not so proceed. Until such rule is served and made absolute, the denials in appellant’s Answer cannot be assumed true.

Furthermore, because appellee has not taken depositions, Judge Guarino will only have before him contradictory pleadings. The Petition and Answer standing alone do not provide sufficient basis upon which to decide appellee’s motion to open. See, Triffin v. Thomas, 316 Pa.Super. 273, 462 A.2d 1346 (1983); Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979). Presently, there is insufficient evidence from which a determination of the disputed facts can be made.

Accordingly, we reverse the Order of the court below granting appellee’s motion to strike, and remand for consideration of appellee’s motion to open following further proceedings pursuant to Rule 209. Jurisdiction is relinquished.

      . Appellee claims that his Certificate of Readiness was rejected twice by the Prothonotary. Once, defendant failed to include a stamped, self-addressed envelope. The second time, his papers did not properly indicate that he was requesting a trial de novo.

      . We do not accept appellant’s contention that Judge Guarino is precluded by law from allowing appellee to proceed with his appeal. The cases cited by appellant concern petitions for appeal nunc pro tunc from valid judgments. Instantly, appellee attacks the propriety of the entry of judgment; appellee seeks to open judgment and then to be allowed to proceed with his appeal. The distinction is significant. See, 12 Standard Pa. Practice 2d § 71:39; 20 P.L.E. § 216.

      . On remand, the petition to open judgment should be reviewed to determine whether three conditions have been met. To open a judgment in an assumpsit action, the petition must: (1) have been promptly filed; (2) provide satisfactory explanation for default; (3) set forth meritorious defense to underlying cause of action in specific and clear terms. Sines v. Packer, 316 Pa.Super. 500, 463 A.2d 475 (1983); Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982).

      . Pa.R.Civ.P. 209 provides:
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule), the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    469 A.2d 248
    COMMONWEALTH of Pennsylvania v. Patricia COVERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1983.
    Filed Dec. 16, 1983.

      Michael J. Malloy, Media, for appellant.
    A. Sheldon Kovach, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from appellant’s conviction by a jury of operating a lottery and her subsequent sentence of four (4) years probation and $1,000.00 fine.

Appellant asserts that evidence obtained as a result of a search of her residence pursuant to a warrant should have been suppressed. She specifically avers that the affidavit failed to establish probable cause, as it was based upon stale information and the informant’s reliability was not sufficiently established.

Four criteria are to be considered by an issuing authority when attempting to determine whether a substantial basis exists for crediting an informant’s tip-. They are (1) whether the informant has given prior reliable information; (2) whether the informant’s story has been corroborated by any other sources; (3) whether the informant’s statements are a declaration against penal interest; and, (4) whether the defendant’s reputation supports the informant’s tip. See, e.g., Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 454 A.2d 84 (1982). There is no requirement, however, that each and every criterion be met in order to support a finding of reliability. See, e.g., Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982).

In the matter before us, a gambling informant gave the name, address and telephone number of appellant. He informed the affiant that appellant was writing numbers via the telephone from her home for one Herman Fontaine, and gave particulars regarding the time, day and place of her weekly “settle up” with Fontaine. Furthermore, the informant described appellant’s car, which he witnessed her use to carry gambling records, and gave a detailed description of the interior of Fontaine’s home. An independent police inquiry confirmed the ownership of the car, carrying the license plate number supplied by the informant, by appellant. A surveillance of appellant’s home revealed no unusual traffic in and out of the home, indicating to the affiant that any gambling must be done by telephone. The surveilling officers also observed the aforementioned automobile parked at appellant’s address.

In addition to all of the above, the affiant supplied the names, dates and particulars of three specific instances in which the informant’s reliable information led to arrest and seizure of evidence in gambling cases. In light of the foregoing, the informant’s reliability is clear in that at least two of the four criteria cited above were satisfied, establishing a substantial basis for crediting his information. Cf., Commonwealth v. Barba, 314 Pa.Super. 210, 215-16, 460 A.2d 1103, 1106 (1983).

As to appellant’s contention that the affidavit was based upon stale information, it too is meritless. A determination of what constitutes staleness of information is to be made on a case by case basis; but, it has been held that properly recited facts indicating activity of a continuous, protracted nature renders the passage of time less significant. Commonwealth v. Ryan, 300 Pa.Super. 156, 169, 446 A.2d 277, 284 (1982), citing, Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981).

According to the affidavit herein, the informant supplied the affiant with the detailed information delineated above on March 19, 1980. The affiant recontacted the informant on April 14, 1980, to determine if the information was still accurate. The informant, thereupon stated that the same routine was in force: appellant was still writing heavily for Fontaine out of her home and “settling up” with him each week, particularly Wednesday, March 26, 1980; Wednesday, April 2, 1980; and, Wednesday, April 9, 1980.

The criminal activity as described by the informant herein followed a consistent pattern over a period of time. It was not unreasonable for the affiant, after having received detailed information, to merely corroborate the continuation of the previously described activity. Furthermore, the informant’s specification of three “settle-ups”, consistent with the earlier tip, during the intervening three and one-half (3V2) weeks revived the information previously given, while confirming the protracted, continuous nature of the gambling activity. Cf., United States v. Harris, 403 U.S. 573, 579 n. 2, 91 S.Ct. 2075, 2079 n. 2, 29 L.Ed.2d 723, 731 n. 2 (1971); and, compare, Commonwealth v. Tolbert, 492 Pa. 576, 579, 424 A.2d 1342, 1344 (1981). We, therefore, find appellant’s averment that the information supplied by the informant was stale to be without merit.

Appellant also attacks the constitutionality of the lottery statute. She first alleges that her equal protection rights were violated by virtue of the fact that the statute creates an invalid classification by exempting the illegal lottery player from criminal liability.

The party attacking the constitutional validity of a statute shoulders a heavy burden of proof, as legislative enactments are presumed constitutionally valid. School Districts of Deer Lakes and Allegheny Valley v. Kane, 463 Pa. 554, 345 A.2d 658 (1975); Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975). To meet this burden, appellant must show that no rational basis existed to establish a class exempted from the operation of the statute. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

An application of these standards leads us to conclude that the disparity of treatment as to criminal liability based upon the separate roles of the player, and the operator or promoter of an illegal lottery bears a reasonable relationship to the objective of elimination of this crime. Analogous situations arise as a result of disparate sentencing provisions of both the Controlled Substances, Drug, Device, and Cosmetic Act and the statute providing punishment for prostitution and related offenses. Like these statutes, the dichotomous treatment of the organizer/operator and the lottery player is rationally related to the legislative purpose of eliminating the evils of illegal gambling and maintaining the general welfare of the public. Cf, Commonwealth v. Finnegan, 280 Pa.Super. 584, 592, 421 A.2d 1086, 1090-91 (1980).

Appellant also asserts that the selective enforcement of the statute is a violation of her rights to equal protection under the laws and due process. In support of that allegation, appellant argues that the trial court erred in failing to take judicial notice of the fact that many charities operate illegal lotteries without the threat of prosecution. We shall first address the underlying judicial notice allegation.

It is axiomatic that judicial notice is intended to avoid the formal introduction of evidence in those situations where the fact to be proven is so well known in the jurisdiction that the introduction of evidence in support thereof is unnecessary. Sheppard v. Old Heritage Mutual Insurance Company, 492 Pa. 581, 425 A.2d 304 (1980); Wells v. Pittsburgh Board of Public Education, 31 Pa. Cmwlth. 1, 374 A.2d 1009 (1977). In other words, judicial notice should not serve to deny the opposing party the chance to disprove the fact sought to be judicially noticed.

Appellant’s premise that it is common knowledge that many organizations conduct illegal lotteries without the threat of prosecution was insufficiently substantiated to warrant judicial notice. As the trial court aptly stated, her premise went “well beyond a fact", requiring that tribunal to not only “find a number of facts, but, also, to reach conclusions of law.” Slip Opinion, p. 6, McGovern, J. Furthermore, the Commonwealth vigorously contested appellant’s argument, which helped serve to take the matter outside of the ambit of common knowledge. Cf., Sheppard v. Old Heritage Mutual Insurance Company, supra 492 Pa. at 593, 425 A.2d at 310. The trial court, therefore, properly refused appellant’s request to take judicial notice.

Finally, we respond to appellant’s allegation of selective prosecution under the lottery statute. In order to prove her claim of denial of equal protection rights and due process, appellant must not only establish discriminatory or selective prosecution, but must also show intentional or purposeful discrimination. Commonwealth v. Phillips, 248 Pa.Super. 400, 375 A.2d 158 (1977).

Appellant, however, failed to produce any evidence or present factual argument that the Commonwealth intentionally or purposefully discriminated in lottery prosecutions. The absence of solid, specific evidence regarding this issue results in appellant’s failure to establish the necessary elements of selective prosecution. Such failure renders meritless her arguments that her rights to equal protection under the laws and due process were violated. Cf., Commonwealth v. Finnegan, supra 280 Pa.Super. at 594, 421 A.2d at 1091, citing, Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944).

Judgment of sentence affirmed.

      . The totality of the circumstances approach recently validated by the Supreme Court of the United States buttresses our conclusion on this point. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

        . 18 Pa.C.S.A. § 5512(c).

      . 35 P.S. 780-113(a)(16), (30).

      . 18 Pa.C.S.A. § 5902.

      . Notably, organizations conducting such games for charitable purposes have been subjected to prosecution in the past. Cf., e.g., Commonwealth v. Wida, 12 D. & C.3d 1 (1979).


author: HOFFMAN, Judge:

text:
    469 A.2d 252
    COMMONWEALTH of Pennsylvania v. Ociele HAWKINS. Appeal of Kim NELSON.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1983.
    Filed Dec. 16, 1983.

      Barry H. Oxenburg, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges the lower court’s contempt order, arguing that he was justified in refusing to testify after being granted immunity because the Assistant District Attorney had threatened to prosecute him for perjury if his testimony failed to conform to his prior statement to the police. We disagree and, accordingly, affirm the contempt order and judgment of sentence.

Appellant was called as a witness for the prosecution in the Commonwealth’s case against Ocíele Hawkins, who was charged with the December 18, 1978 murder of James Hughes. On January 8,1979, appellant gave a statement to the police concerning the incident.' Prior to Hawkins’ trial, after being advised that appellant would invoke the privilege against self-incrimination if questioned under oath, the Commonwealth petitioned for and was granted an immunity order pursuant to 42 Pa.C.S.A. § 5947. On January 22, 1982, appellant was called to testify but refused to answer questions put to him by the prosecutor even though he had been advised of the grant of immunity and directed to answer by the court. Consequently, the trial judge found appellant in contempt and sentenced him to five months and twenty-nine days imprisonment, to run consecutively to the sentence appellant was then serving. This appeal followed.

Appellant contends that he refused to testify because the Assistant District Attorney threatened to prosecute him for perjury if his testimony failed to conform to his prior statement. We find appellant’s contention meritless. Appellant’s account of his conversation with the Assistant District Attorney on January 20, as reported by appellant’s counsel, is as follows:

[M]y client [appellant] advised me that he had a conversation with the Assistant District Attorney in this case, and while I was not party to that conversation, it is my understanding that Mr. Long [the Assistant District Attorney] indicated to my client that he wants him to tell the truth on one hand. On the other hand, he told him that if he in any way deviates on the witness stand his testimony from that which he told the police in his statement which was taken on January the 8th of 1979, that the District Attorney’s office would prosecute him for perjury and recommend that if he were convicted, he would receive the maximum sentence of three and a half to seven years.

(N.T. January 22, 1982 at 4-5).

Our Supreme Court has stated the following:

In general, immunity statutes protect persons who are compelled to give testimony, from the use of the compelled testimony and evidence derived therefrom in subsequent criminal prosecutions____ Neither immunity statutes nor the Fifth Amendment, however, “endow the person who testifies with a license to commit perjury.” ... Accordingly, the United States Supreme Court has upheld convictions for perjury committed during the giving of a compelled statement where the respondent’s immunized statement was used at a subsequent prosecution for making false statements....

Commonwealth v. Sklar, 497 Pa. 404, 413, 441 A.2d 1201, 1206 (1982) (citations omitted). The promise of immunity is premised on the assumption that the information will be truthful and if the information turns out to be false, there can be no immunity because of the basis for the grant of immunity would have been frustrated. Id,., 497 Pa. at 414, 441 A.2d at 1206. Therefore, appellant could have been prosecuted for perjury if he had testified falsely, regardless of whether his testimony differed from or conformed exactly to his prior police statement.

Appellant’s refusal to testify can be justified only if such testimony would put him in jeopardy. It is clear that such is not the case. Under the Pennsylvania immunity statute, immunized testimony or information derived from such testimony cannot be used against the witness in any criminal case; the only exceptions are for prosecutions for perjury or false swearing. 42 Pa.C.S.A. § 5947(d)(1). Here, if appellant testified truthfully on the stand and his testimony differed markedly from his prior statement to the police, then he could not even be prosecuted for making false statements to authorities. See 18 Pa.C.S.A. § 4904(a)(1) (Unsworn Falsification to Authorities).

In United States v. Frumento, 552 F.2d 534 (3d Cir.1977), the defendant contended that the federal immunity statute, 18 U.S.C. § 6002, and the fifth amendment privilege presented him with the following dilemma: if the testimony was untruthful (i.e., exculpatory as to him) he would be subject to a perjury prosecution; but if the testimony was truthful (i.e., inculpatory) then it could be used against him to impeach his testimony at any subsequent prosecution. Such reasoning was rejected by the third circuit court, which stated that “for his ‘dilemma’ to move this Court to rule that § 6002 immunity does not provide the full measure of Fifth Amendment protection, he must demonstrate that his truthful immunized statements could be used against him. This he cannot do.” Id. at 542 (emphasis in original). The court further stated that the defendant’s dilemma was “illusory” because his testimony could only be used against him in the event of a perjury prosecution. Id. at 543-44. In the instant case, appellant alleges a similar dilemma, which is equally illusory because his testimony could only have been used against him if he committed perjury. In In re Grand Jury, April Term, 1977, Wayne County, 251 Pa.Superior Ct. 43, 379 A.2d 323 (1977), we held that it was no defense to a contempt finding that the witness believed in good faith that “if his memory is not completely accurate, he must refuse to testify, deny all recollection, or face perjury charges[.]” Id., 251 Pa.Superior Ct. at 50, 379 A.2d at 326. The court reasoned that “If necessary, he later may use his faulty memory as a shield to perjury charges; he may not use it now as a sword to avoid the Special Prosecutor’s questions.” Id., 251 Pa. Superior Ct. at 51, 379 A.2d at 326. Similarly, in the present case, appellant may later use the truth as a “shield” to perjury charges but he may not use it now as a “sword” to avoid testifying.

Appellant is further protected from false prosecutions for perjury by the legal ethical standards applicable to prosecutors. While it is true that a prosecutor has broad discretion to decide whether and when to prosecute, see Piscanio Appeal, 235 Pa.Superior Ct. 490, 494, 344 A.2d 658, 660 (1975), quoting Commonwealth v. DiPasquale, 431 Pa. 536, 540-41, 246 A.2d 430, 432 (1968), and enjoys absolute immunity from liability for actions taken within the scope of his official duties, see Ross v. Meagan, 638 F.2d 646 (3d Cir.1981), it is nevertheless required that he or she “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause[.]” Rule 3.8 of the American Bar Association (ABA) Model Rules of Professional Conduct, 52 U.S.L.W. 1, 20 (August 16, 1983).

Appellant, having been granted immunity, should have testified truthfully, regardless of his fear of prosecution for perjury. As a witness, he ran the same risk as any other witness that what he said under oath would be scrutinized and, if false, penalized. In considering an appeal from a contempt order, great reliance must be placed upon the discretion of the trial judge. In re Grand Jury, April Term, 1977, Wayne County, supra, 251 Pa.Super. at 50, 379 A.2d at 326. Because we find no abuse of discretion, we must affirm the contempt order and judgment of sentence.

Affirmed.

      . The Pennsylvania immunity statute, 42 Pa.C.S.A. § 5947(b), provides in part that "The Attorney General or a district attorney may request an immunity order from any judge of a designated court, and that judge shall issue such an order, when in the judgment of the Attorney General or district attorney: (1) the testimony or other information from a witness may be necessary to the public interest; and (2) a witness has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.”

      . Appellant contends that he refused to testify because of the prosecutor’s threat despite indications in the record that his refusal may have been based upon fear for his family’s safety. In response to the court’s questioning in chambers, defense counsel stated the following:
      He [appellant] is afraid, Judge.
      He communicated to me that he is afraid not so much for his own safety — -although he is — but for the safety of his wife and children who are still—

        That he doesn’t want the defendant to know that why he is not testifying is because he is afraid that that will just do indirectly what he was afraid they would do directly.
      (N.T. January 22, 1982 at 16-17).
      The Assistant District Attorney refused to admit or deny for the record whether the conversation between himself and appellant occurred as appellant alleged. (N.T. January 22, 1982 at 8).

      . The United States Supreme Court has held that, under the federal immunity statute, 18 U.S.C. § 6002, such immunity is coextensive with the scope of the fifth amendment privilege against compulsory self-incrimination, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), reh. denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972), but that neither § 6002 nor the fifth amendment precludes the use of defendánt’s immunized testimony at a subsequent prosecution for perjury or making false statements, see United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980).

      . The Pennsylvania perjury statute, 18 Pa.C.S.A. § 4902(a), provides in part that "A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true."

      . 18 Pa.C.S.A. § 4904(a) provides in part that “A person commits a misdemeanor of the second degree if, with intent to mislead a public servant in performing his official function, he: (1) makes any written false statement which he does not believe to be true[.]”

      . In an analogous situation, the court in Commonwealth v. Good, 461 Pa. 546, 337 A.2d 288 (1975), held that failure to advise the defendants that they had a right to consult with an attorney before and after grand jury testimony did not preclude their convictions for perjury because the defendants could have refused, on grounds of self-incrimination, to answer the questions, and could likewise have defended against any subsequent contempt citation for such refusal to answer. The defendants had argued that they were presented with only three options: (1) refuse to testify and thereby be subject to contempt citations; (2) confe°ss to substantive violations and thereby incriminate themselves; or (3) deny any wrongdoing and thus commit perjury. Id., 461 Pa. at 551, 337 A.2d at 290. The court, in response, stated that this "trilemma" (contempt, harmful disclosure, or prejury) existed “for many witnesses every day” and that “[w]hen ... a witness chooses to resolve that conflict by lying under oath, the perjury cannot be permitted to go unpunished.” Id., 461 Pa. at 552, 337 A.2d at 291. In the instant case, appellant faced only a &mma because he was granted immunity from prosecution for any harmful disclosures on the stand; similarly, this dilemma did not excuse appellant from his duty to testify truthfully.

        Commonwealth v. Lenart, 430 Pa. 144, 242 A.2d 259 (1968), cited by appellant (Brief for Appellant at 13), is distinguishable in that the witness, who refused to testify in accordance with a prior statement, was not granted immunity and therefore could exercise the privilege against self-incrimination. In determining when the claim of privilege should be denied, the court stated that “it must be perfectly clear ... from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency[.]" Id., 430 Pa. at 150, 242 A.2d at 263 (emphasis in original).

      . Standard 3-3.9(a) of the 1979 ABA Standards Relating to the Administration of Criminal Justice provides that “It is unprofessional conduct for a prosecutor to institute, or cause to be instituted, or to permit the continued pendency of criminal charges when it is known that the charges are not supported by probable cause.” See also Standard 3-1.1(c) (“The duty of the prosecutor is to seek justice, not merely to convict.”); and Standard 3-3.1(b) ("It is unprofessional conduct for a prosecutor to use illegal means to obtain evidence^]”).


author: BROSKY, Judge: HESTER, Judge,

text:
    469 A.2d 256
    John P. BARTLEY, Administrator of the Estate of Charles J. Bartley, Deceased v. CONCRETE MASONRY CORPORATION and F.J. Meyerl, Inc., Corporations v. MASSARO COMPANY, a Corporation, and Carolin Masonry, a Corporation. Appeal of CONCRETE MASONRY CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 10, 1983.
    Filed Dec. 23, 1983.
    Petition for Allowance of Appeal Denied March 29, 1984.

      Matthew R. Wimer and Chester S. Fossee, Pittsburgh, for appellant.
    James F. Manley, Pittsburgh, for appellees.

      Before CERCONE, President Judge, and WICKERS-HAM, HESTER, BROSKY, WIEAND, BECK and JOHN-SOÑ, JJ.
   BROSKY, Judge:

John P. Bartley commenced this action to recover damages for injuries suffered by his decedent, Charles J. Bartley. Charles J. Bartley, an employee of appellee Carolin Masonry was injured while working as a laborer on a job site in Plum Borough, Allegheny County. Appellee Massaro Company was the general contractor.

The original defendants in this action were appellant Concrete Masonry Corporation and F.J. Meyerl, Inc., which companies were performing work at the site. These companies, charged by Bartley with having negligently caused Charles Bartley’s death, joined Massaro Company and Carolin Masonry as additional defendants.

Motions for summary judgment were filed by Massaro and Carolin Masonry and granted by the trial court. It is from the order granting the motions that this appeal is taken.

The trial court found that Massaro was decedent’s statutory employer under the Workmen’s Compensation Act, and concluded that, pursuant to Section 303 of the Act, neither Massaro nor Carolin Masonry could be joined as additional defendants in this suit.

Appellant urges us to find that Massaro was not the decedent’s statutory employer and that, in any event, the statutory employer and the employer can be joined as additional defendants.

We have concluded that Massaro was indeed the decedent’s statutory employer, and is therefore immune from suit by him. We hold also that as such it is immune from joinder as an additional defendant. Carolin Masonry is immune from joinder as an additional defendant because of its employer status. We, therefore, affirm the order.

We discuss first appellant’s contention that Massaro ought not to be accorded statutory employer status. Its argument is that certain amendments to 302(b) of the Act, effectively amended Section 203 which defines statutory employer immunity in the following manner:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

This statute has long been interpreted as requiring that five criteria be met if statutory employer status is to attach. In McDonald v. Levinson Steel Company, 302 Pa. 287, 295, 153 A. 424 (1930), these criteria were established and explained as follows:

(1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

Appellant does not contest that Massaro meets these guidelines. Instead, it urges us to find that in view of amendments to Section 302(b) of the Act, these criteria alone no longer entitle a general contractor in the position of Massaro to statutory employer status.

Section 302(b), which pertains to the payment of workmen’s compensation, was amended in 1974. Prior to that date, it provided that it was to be conclusively presumed that a contractor, who (like Massaro) permitted sub-contractors and their employees on the premises had agreed to pay workmen’s compensation. The statute did, however, contain “elective compensation” language that permitted nonpayment of compensation under certain circumstances.

The 1974 amendment to Section 302(b) eliminated the presumption that the contractor had agreed to pay compensation. Instead, it provides that:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an-assistant hired by an employe or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employe or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employe or contractor if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act. Any employer or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from another person if the latter is primarily liable therefor. 77 P.S. 462 (see also 77 P.S. § 461)

It is uncontroverted that appellee, Carolin Masonry, the sub-contractor and decedent’s employer, and Massaro entered into an agreement which provided that Carolin Masonry was to procure workmen’s compensation insurance for its employees and hold harmless Massaro. Appellant would have us hold, essentially on public policy grounds, that because Carolin Masonry and not Massaro, was responsible for the payment of workmen’s compensation benefits to the decedent, that Massaro ought not to be accorded statutory employer status. The same argument was advanced to us in Cranshaw Construction Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981), and we rejected it then as we do today.

In Cranshaw, supra, we held the amendment of Section 302 of the Act worked no amendment of § 203. We noted that our Supreme Court in Capozzoli v. Stone & Webster Engineering Corporation, 352 Pa. 183, 42 A.2d 524 (1945), held

... undér the former Section 302, an agreement by a subcontractor to provide workmen’s compensation for its employees does not operate to remove the statutory employer from the scope of Act II of the Workmen’s Compensation Act, even though it may operate to relieve such employer from payment of compensation by placing that responsibility upon the subcontractor.

It is well established that when confronted with questions of statutory construction, the words of a statute are to be interpreted in light of the antecedent case law. Truck Terminal Co. v. Comm. of Pennsylvania Dept. of Transportation, 486 Pa. 16, 23, 403 A.2d 986, 989 (1979).

We conclude, as we did in Cranshaw, supra, that had the Legislature intended to alter the effect of Section 203 of the Act according to whether a statutory employer had the responsibility to pay workmen’s compensation benefits, it could have so amended that article. As it is, the Legislature, long after the Capozzoli decision, made no such change. We cannot do so.

We turn next to appellant’s contention that Section 303(b) of the Act does not preclude the joinder of the employer and statutory employer as additional defendants for purposes of determining whether a “set-off” should be allowed the original defendant.

We have held several' times recently that an employer cannot be joined as a third party defendant in an action brought by the employee against a third party.

In Heekendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981), we held that an employer could not be joined as an additional defendant for purposes of appointing liability under the Comparative Negligence Act. We said of Section 303, “It has ‘obliterated’ the common law cause of action against the employer and foreclosed the adjudication of liability on the part of the employer.” Id., 293 Pa.Superior Ct. at 477, 439 A.2d at 675.

We held similarly in Kelly v. Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982), and said, “It seems clear, therefore, that substantive law precludes the joinder of an employer for the purpose of determining fault in an action commenced by an employee against a third person. Id., 307 Pa.Superior Ct. at 367, 453 A.2d at 627. See also Brozzetti v. Hempt Brother, Inc., 310 Pa.Super. 249, 456 A.2d 595 (1983); William Harter and Cleaver Brooks, A Division of Aquachem, Inc. v. Yeagley, 310 Pa.Super. 449, 456 A.2d 1021 (1983) (all causes of. action against the employer obliterated). Appellant urges us to do precisely what we have said we cannot do — that is, permit joinder of the employer to determine the fault of all possible tortfeasors.

Appellants argue that the result we reach is an unfair one because it places the burden of a judgment on the original defendant even if he is not entirely at fault. Such arguments have been made before and as we said in Heckendorn, supra, 293 Pa.Super. at 482, 439 A.2d at 678, the argument that this statute creates too absolute a victory for “the employer is an argument based on social policies and should, more properly, be addressed to the legislature.” See also William Harter, supra, 310 Pa.Superior Ct. at 454, 456 A.2d at 1024.

The grant of summary judgment as to Carolin Masonry was consistent with existing law. Similarly, we held in Cranshaw, supra, 290 Pa.Super. at 294-296, 434 A.2d at 760-761, that Section 303(b) encompasses statutory employees and renders them immune from joinder.

Therefore, the order of the lower court is affirmed.

HESTER, J., files a concurring and dissenting opinion.

HESTER, Judge,

concurring and dissenting:

I concur with the action of the majority in affirming the summary judgment as to Carolin Masonry, the employer of decedent. The liability of Carolin is controlled by the Workman’s Compensation Act.

However, I must respectfully dissent from the conclusion of the majority to the effect that appellee-Massaro was the statutory employer of decedent. It is admitted that decedent was not an employee of Massaro at the time he sustained his fatal injury. It is further admitted that Massaro did not provide Workman’s Compensation Coverage for decedent; that coverage was provided by decedent’s employer, Carolin Masonry.

Inasmuch as the 1974 amendments to the Workman’s Compensation Act provided that, in this situation, Massaro was not liable to employees of Carolin for the payment of Workman’s Compensation benefits, Massaro should not then be accorded the protection provided by the “statutory employer” fiction. Massaro was neither the employer nor the statutory employer of decedent. Said amendments provided as follows:

Section 302(a)
“A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act. Any contractor or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from the subcontractor primarily liable thereof.” (emphasis added).

Section 302(b)

“Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employee or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employee or contractor, if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act. Any employer or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from another person if the latter is primarily liable therefor.” (Emphasis added).
“For the purposes of this subsection (b) the term ‘contractor’ shall have the meaning ascribed in Section 105 of the Act.”

This language is clear and free of ambiguity, it cannot be disregarded. The legislative intent is clear. It mandates the conclusion that where the subcontractor has secured the payments of compensation, the general contractor does not become liable for the payment of compensation to the subcontractor’s employees. The majority contends that the foregoing amendments to section 302 of the Act did not amend Section 203, citing Capozzoli v. Stone & Webster Engineering Corp., 352 Pa. 183, 42 A.2d 524 (1945). In so holding, the majority fails to effectuate the intent of the legislature in enacting the 1974 amendments. As was stated in Judge Shertz’ dissenting opinion in Cranshaw Const. v. Ghrist, 290 Pa.Super. 286, 300, 434 A.2d 756, 763:

In undertaking an analysis of sections 461 and 462, as amended, in the context of the entire Act, we must be mindful of certain well established principles of statutory construction. A statute must be construed and applied so as to ascertain and to effectuate the legislative intent and, whenever possible, must be read consistently so as to give effect to all it provisions. Pa.Cons.Stat.Ann. Tit. 1, § 1921(a) (Purdon Supp.1981-82); Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). If a statute contains irreconcilable provisions, special provisions shall prevail over general provisions and those last in order of date shall prevail over earlier provisions. Pa.Cons.Stat.Ann. tit. 1, §§ 1933 & 1934 (Purdon Supp.1981-82). Words which are clear and free from all amiguity are not to be disregarded under the pretext of pursuing their spirit. Pa.Cons.Stat.Ann. tit. 1, § 1921(b) (Purdon Supp. 1981-82). Finally, with specific reference to the Act, it is axiomatic that, since it was designed to benefit employees injured in work-related accidents, it should be liberally construed so as to achieve its remedial purpose. Workmen’s Compensation Appeal Board v. Overmyer Mold Company, 473 Pa. 369, 374-75, 374 A.2d 689, 691 (1977); Workmen’s Compensation Appeal Board v. Hartlieb, 465 Pa. 249, 348 A.2d 746 (1975); Billick v. Republic Steel Corp., 214 Pa.Super. 267, 257 A.2d 589 (1969).

The rules of statutory construction require, we repeat, that every statute be construed, if possible, to give effect to all of its provisions. To find that appellee Massaro was appellant’s statutory employer would be in complete disregard of the 1974 amendments to the Act. It fails to give effect to the “unless clauses” in sections 302(a) and 302(b) as amended. As Judge Shertz further stated in his dissenting opinion in Cranshaw, supra, at pages 305-306 of 290 Pa.Superior Ct. and at page 765 of 434 A.2d:

Since 1974, however, the basis for the immunity has been eliminated since the amendments specifically provide that the general contractor is not liable, even in a reserve status, if the subcontractor has secured the requisite payment of compensation. In enacting these amendments, our Legislature has chosen to follow those jurisdictions which do not allow general contractors, who have no liability for workmen’s compensation, to escape common law liability as well. E.g., Merritt Chapman & Scott Corporation v. Fredin, 307 F.2d 370 (9th Cir.1962); Whiting v. Farnsworth & Chambers Co., 293 F.2d 45 (10th Cir.1961); Kozoidek v. Gearbulk Ltd., 471 F.Supp. 401 (D.Md.1979); Ryan v. New Bedford Cordage Co., 421 F.Supp. 794 (D.Vt.1976).
The result effected by the 1974 amendments is sound and eminently fair. As pointed out in Robinson, supra, the pre-1974 immunity granted the general contractor was the benefit accorded to him for assuming the compensation burden, even if only on a reserve basis. Where, however, as under sections 461 and 462 and the instant facts, such a burden is never assumed, neither logic nor equity support a continued grant of immunity. To hold otherwise, as aptly pointed out by the trial court, is tantamount to putting a general contractor in the position of “having its cake and eating it, too” and constitutes unwarranted judicial legislation.

As was pointed out by Judge Hoffman some seven (7) years prior to the enactment of the 1974 amendments:

... very great care ... must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. Section 52 of the Workmen’s Compensation Act, which was designed to extend benefits to workers, should not be causally converted into a shield behind which negligent employers may seek refuge.

Stipanovich v. Westinghouse Electric Corporation, 210 Pa.Super. 98, 106, 231 A.2d 894, 898 (1967). Since the enactment of the 1974 amendments, Judge Hoffman’s admonition is more germaine than ever.

In sum, decedent-appellant Bartley was an employee of Carolin Masonry Corporation. Carolin Masonry was a subcontractor of appellee Massaro Company. Carolin provided Workman’s Compensation coverage for Bartley. In view of this uncontradicted fact situation it was not possible for appellee Massaro to be liable for the payment of Workmen’s Compensation benefits to the decedent-appellant or his Estate. It would therefore follow that Massaro should not be accorded the fictitious defense of a “statutory employer.”

For the forementioned reasons, I dissent.

      . Act of June 2, 1915, P.L. 736, as amended by Act of December 5, 1974, P.L. 782, No. 263 § 6; 77 P.S. § 481.

      . 77 P.S. § 462.

      . 77 P.S. § 52.

      . Section 303 provides:
      (a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of' kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
      (b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.
      Act of Dec. 5, 1974, P.L. 782, No. 263; 77 P.S. § 481.

      . Appellant’s arguments as to the constitutionality of Section 303(b) have been addressed by our Supreme Court in Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980).

      . Robinson v. Atlantic Elevator Co., 298 Pa. 549, 148 A. 847 (1930).


author: BROSKY, Judge:

text:
    469 A.2d 261
    COMMONWEALTH of Pennsylvania v. David James ROY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1983.
    Filed Dec. 23, 1983.

      D. Melenyzer, Charleroi, for appellant.
    Bradley M. Bassi, Charleroi, for Commonwealth, appellee.
    Before SPAETH, BROSKY and JOHNSON, JJ.
   BROSKY, Judge:

Appellee commenced this action seeking support for her son, born November 26, 1979. She alleged below that appellant, to whom she has never been married, is the father of her child. In November and December, 1980, hearings were held on the paternity issue as a result of which the lower court determined that appellant is the child’s father. The Court entered the support order from which this appeal was taken on December 15, 1980. This appeal followed. Appellant argues that he was improperly denied the right to jury trial and that the finding of paternity was not supported by sufficient evidence. For the reasons that follow, we affirm.

We note initially that appellant has waived the sufficiency-of the evidence issue. This action, which was commenced by complaint dated January 7, 1980, is governed by the support proceedings statute found at 42 Pa.C.S.A. § 6701 et seq. Section 6704 of that title relates to the commencement of support actions. At the time of the proceedings below, the official note to section 6704 provided that in construing section 6704, certain subsections of the Act of April 28, 1978 were to be given effect. The relevant subsection (f) provided in part:

(f) An action commenced under this act shall be a civil action in accordance with the Rules of Civil Procedure ....

(Presently see 42 Pa.C.S.A. § 6704(f)).

Pa.R.C.P. 1038 states with respect to trials conducted without juries (as was the present trial):

(d) Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters....

No exceptions were filed in this case. The issue as to sufficiency of the evidence has therefore been waived. See Paul v. Paul, 281 Pa.Super. 202, 210 n. 11, 421 A.2d 1219, 1223 n. 11 (1980); Commonwealth ex rel. White v. White, 303 Pa.Super. 329, 449 A.2d 712 (1982). See also Commonwealth ex rel. Nixon v. Nixon, 312 Pa.Super. 313, 458 A.2d 976 (1983). As to current procedure see Pa.R.C.P. 1910.15 and Pa.R.C.P. 227.1 to 227.4 (effective January 1, 1984).

Appellant also argues that he was improperly denied the right to jury trial. Although this claim was not raised in exceptions, we will nonetheless discuss it. In Yudacufski v. Commonwealth, 499 Pa. 605, 454 A.2d 923 (1982), our Supreme Court indicated that the question of whether exceptions must be raised to preserve pre-trial rulings is unsettled. See id., 499 Pa. at 609 n. 6, 454 A.2d at 925 n. 6. In Yudacufski, the court considered the merits of a challenge to a venue ruling that had been made pre-trial, although no post-trial motion alleging the error was made. The court said at n. 6 that it would refer to the Civil Procedure Rules Committee the question of whether exceptions must be made to pretrial rulings. Pending a decision on the question, we would prefer to err on the side of caution, giving appellant an opportunity to raise before us the jury trial issue.

As was noted earlier in this opinion, paternity actions are governed by the Rules of Civil Procedure. 42 Pa.C.S.A. § 6704 quoted in part earlier, continues

... Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be by the court without a jury unless either party demands trial by jury.

Pa.R.C.P. 1007.1(a) in effect in 1980, provides that civil trials will be non-jury unless written demand for jury trial is filed within 20 days after service of the last permissible pleading. The only pleading shown on the docket sheet indicates that it was filed on January 7, 1980.

Appellant has included in a reproduced record copies of both a demand for jury trial dated August 13, 1980 and a notice of the right to jury trial dated February 4, 1980. Neither of these documents is included in the original record and they therefore should not have been made part of the reproduced record. See Auman v. Juchniewitz, 312 Pa.Super. 98, 458 A.2d 254 (1983).

The only mention of the request for jury trial that is of record is contained in the recorded transcript of the November 24, 1980 hearing at which time appellant’s counsel stated that he had made the request in August.

At the time of these proceedings, the Domestic Relations Office of Washington County had a policy of hearing paternity actions non-jury unless a request for jury trial was made within ten days of notice of that rule. Pa.R.C.P. 1910.28 presently includes- such a ten-day limitation in its standard form of notice of right to trial on issues of paternity, but this rule was promulgated after the relevant time period in this case.

Even assuming arguendo that a request for jury trial was presented to the court on August 13, 1980, it was clearly untimely.

Order affirmed.

      . We note that unlike the situation in Nixon, the support order in the instant case was entered three months after the opinion in Paul v.

        Paul, supra was filed. Therefore, we have concluded that it would be inappropriate to remand this case for the filing of exceptions nunc pro tunc, as was done in Nixon.


author: ROWLEY, Judge:

text:
    469 A.2d 263
    COMMONWEALTH of Pennsylvania v. Michael LEATHERBURY, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 28, 1983.
    Filed Dec. 23, 1983.

      Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   ROWLEY, Judge:

This direct appeal is before us on remand from the Pennsylvania Supreme Court for consideration of (1) appellant’s challenge to the sufficiency of the evidence to support his conviction of simple assault and possession of an instrument of crime and (2) appellant’s claim that he was prejudiced because the victim did not testify at his non-jury trial. Commonwealth v. Leatherbury, 499 Pa. 450, 451, 453 A.2d 957, 958 (1982). Upon review of the record, we find appellant’s allegations of error to be without merit, and accordingly, we affirm the judgments of sentence imposing a total of five years probation.

Appellant’s fifth reason in support of his motion for “post verdict relief” alleged that “[tjhere was insufficient evidence to establish beyond a reasonable doubt that any crime was committed, especially in light of the fact that no complainant ever testified, either at trial or at the preliminary hearing.” Whether appellant moved for arrest of judgment, or a new trial, by this motion is unclear since he merely requested “post verdict relief”. As we understand appellant’s motion, he sets forth two separate claims of error that would warrant different remedies if either were found to be supported by the record.

An allegation that the evidence is insufficient to support a conviction is properly the basis for a motion in arrest of judgment. Commonwealth v. Holmes, 315 Pa.Super. 256, 270, 461 A.2d 1268, 1275 (1983) (Wieand, J., concurring and dissenting); Pa.R.Crim.P. 1123. In reviewing the sufficiency of the evidence, the test is whether, viewing the record in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Smith, 484 Pa. 71, 74, 398 A.2d 948, 949 (1979); Commonwealth v. Santiago, 476 Pa. 340, 342, 382 A.2d 1200, 1201 (1978).

A claim that the criminal defendant was unfairly prejudiced by the absence of a vital witness’ testimony is grounds for a new trial, if correct. Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959); Commonwealth v. Gasiorowski, 225 Pa.Super. 390, 310 A.2d 343 (1973); see also Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970) cert. denied, 402 U.S. 967, 91 S.Ct. 1683, 29 L.Ed.2d 132 (1971) (appellant advanced alternative motions in arrest of judgment and for new trial). The absence of the victim’s testimony at trial is irrelevant to the sufficiency analysis because our scope of review does not require that we speculate regarding evidence that may have been presented at trial. Thus, these are two separate claims of error and we will treat appellant’s motion as though it were properly-divided into two separate requests for appropriate appellate relief. Nonetheless, we do not condone the use of an improper and vague motion such as the one employed in this case.

In testing the sufficiency of the, evidence, we look to the evidence introduced at trial. Officer Melvin. Smith was the only witness at appellant’s trial and he gave the following testimony. On April 21, 1976, at approximately 8:30 p.m., Officer Smith and his partner, Officer Bruce Allen, were on foot patrol at 46th and Market Streets in Philadelphia. The area was well-lit and there was little traffic. Officer Smith observed the appellant and another man standing on the southeast corner of the intersection. A minor traffic accident occurred and the driver of one car involved in the accident, later identified as Mr. Raymond Johnson, got out of his car and walked over to the driver and passenger of the other vehicle to discuss the accident. Appellant and his companion then approached the three motorists and soon after, Officer Smith noticed that appellant was holding Mr. Johnson in a headlock while his companion searched Johnson’s pockets. When Officer Smith attempted to arrest the appellant and his companion, he saw something fly from appellant’s right hand and he heard it hit the ground. He retrieved a paring knife with a steel blade. Money and a wallet containing Mr. Johnson’s identification were found on the ground immediately following the incident.

Appellant claims that the evidence was insufficient because the police officer did not observe, nor could he hear, what ensued prior to the struggle. Consequently, appellant argues that several non-criminal explanations for his actions were not precluded by the testimony at his trial. For example, he may have been acting in self defense or merely attempting to obtain Mr. Johnson’s identification. These contentions conveniently ignore the undisputed testimony that a knife fell from appellant’s hand when he was arrested and also, that the victim’s wallet and money were found on the ground nearby. This evidence, combined with the fact that appellant held the victim in a headlock while his companion went through the victim’s pockets, was more than sufficient to support the convictions for simple assault and possession of an instrument of crime. The sole testimony of a police eyewitness may be sufficient to establish the elements of a crime. In Re Gonzales, 266 Pa.Super. 468, 405 A.2d 529 (1979). While a criminal conviction may not be based on mere conjecture, the Commonwealth’s burden of proof may be sustained by circumstantial evidence. Commonwealth v. Pronkoskie, 498 Pa. 245, 248, 445 A.2d 1203, 1205 (1982). In this case the trial judge attached great weight to the testimony of Officer Smith and he was entitled to believe all, or none, or any part of the testimony he heard. Commonwealth v. Parsons, 233 Pa.Super. 419, 423, 335 A.2d 800, 802 (1975).

Appellant further claims that he was prejudiced by the Commonwealth’s failure to call the victim to testify as a witness. This argument is without merit. The Commonwealth is not bound to call the victim of a crime as a witness as long as testimony is not withheld solely because it would be favorable to the defendant. Commonwealth v. Jones, 452 Pa. 569, 580, 308 A.2d 598, 607 (1973); Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 592, 225 A.2d 236, 238 (1967); Commonwealth v. Allen, 287 Pa.Super. 88, 95, 429 A.2d 1113, 1116 (1981); see Commonwealth v. Gasiorowski, 225 Pa.Super. 390, 310 A.2d 343 (1973). The Commonwealth is obligated, however, to “apprise the defense of the witness’s name and whereabouts at trial, unless the defense is able to procure the witness unaided.” Commonwealth v. Jones, supra, 452 Pa. at 580-81, 308 A.2d at 605; Commonwealth v. Gray, 441 Pa. 91, 100, 271 A.2d 486, 490 (1970) cert. denied, 402 U.S. 967, 91 S.Ct. 1683, 29 L.Ed.2d 132 (1971).

In the instant case, the record reveals that the name and address of the victim were known to both the prosecution and the defense. Whether the victim was available at the time of trial is unclear; however, the record discloses that the defense never requested that the Commonwealth inform them of the victim’s whereabouts, nor did the defense attempt to call the victim as a witness. In fact, the defense attempted to exclude evidence of the victim’s address. Moreover, there is no indication that the victim’s testimony would have been favorable to the appellant. Commonwealth v. Jones, supra, 452 Pa. at 581, 308 A.2d at 605-606; Commonwealth v. Gray, supra 441 Pa. at 99-100, 271 A.2d at 490; Commonwealth v. Allen, supra 287 Pa.Super. at 96, 429 A.2d at 1116-1117; Commonwealth v. Johnson, 236 Pa.Super. 98, 101, 344 A.2d 646, 647 (1975) allocatur denied (1976). Under these circumstances, we cannot perceive that the victim’s failure to testify resulted in any unfairness to appellant.

Appellant further claims that the evidence was insufficient because the driver and the passenger of the other car involved in the accident were not called as witnesses. We find that appellant waived this claim of error. As previously explained, unless a separate claim of error is alleged, a challenge to the sufficiency of the evidence does not require that we speculate regarding other evidence that may have been introduced at trial. Here, appellant did not allege in post-trial motions that he had been prejudiced by the Commonwealth’s failure to call other witnesses and he did not make this argument before the post-verdict motions court. This issue, therefore, was not preserved for appellate review. Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977) (an issue not presented in post-verdict motions is preserved for appellate review only if it was briefed to the court below and that court considered it on the merits); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) (issues not presented in written post-trial motions will not be considered by trial or appellate courts). Nevertheless, in the interest of judicial economy, we have reviewed appellant’s claim and we find that it is equally without merit. There is no evidence in this case that the defense requested information concerning the names or whereabouts of the driver and passenger of the other car involved in the accident. Officer Smith testified that the other persons involved in the accident were available at the station house after the incident. However, there was no indication that their testimony would have aided appellant’s defense. Under these circumstances, we find that the Commonwealth’s failure to call the other witnesses to testify resulted in no prejudicial error to appellant.

Judgments of sentence affirmed.

      . When this case was first before our Court on direct appeal, the judgments of sentence were vacated and an order whs entered discharging appellant pursuant to Pa.R.Crim.P. 1100. Commonwealth v. Leatherbury, 269 Pa.Super. 194, 409 A.2d 431 (1979). Thus, appellant’s other claims of error were not addressed. Upon the Commonwealth’s appeal of that decision, the Supreme Court determined that the requirements of Rule 1100 had been satisfied and the Superior Court’s order was vacated. Consequently, the case was remanded to this Court for resolution of appellant’s remaining allegations of error. Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957 (1982).

      . Pre-trial motions in this case were filed prior to our decision in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). We note, however, that appellant's motion that the evidence was insufficient to support the verdict would not satisfy the criteria set forth in Holmes. Although it states that there was no testimony from the victim of the crimes, it does not specify in what respect the evidence was insufficient. Holmes, supra, 315 Pa.Superior Ct. at 267-68, 461 A.2d at 1273-1274.


author: BECK, Judge:

text:
    469 A.2d 267
    COMMONWEALTH of Pennsylvania v. Darlene RIFFERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 18, 1983.
    Filed Dec. 23, 1983.
    Petition for Allowance of Appeal Denied May 1, 1984.

      Thomas P. Kennedy, Assistant Public Defender, Scranton, for appellant.

      Amil Michael Minora, Assistant District Attorney, Scranton, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   BECK, Judge:

Darlene Riffert appeals an order of the court of common pleas, Lackawanna County, which denied her Motion to Dismiss the charges against her. She claims that a new trial would violate her right to be protected against double jeopardy guaranteed by the Fifth Amendment to the United States Constitution. Riffert contends that the prosecution’s calling of a witness who, it was known, intended to invoke the Fifth Amendment guarantee against self-incrimination was prosecutorial misconduct sufficient to bar a retrial. For the reasons that follow, we affirm the order and remand for trial.

Riffert was charged with aggravated assault and recklessly endangering another person, and was being tried before a jury. In the course of the trial, Kevin Donahue, who had been subpoenaed to testify on behalf of the Commonwealth, notified the court and the prosecution that he intended to exercise his Fifth Amendment rights. An in camera hearing was held and the hearing court ruled that Donahue could properly claim the privilege against self-incrimination for a certain restricted area of questioning:

The Court: The only thing that’s not fair game is that ■ area around the gun. N.T. at 45.

For all other areas, questioning of the witness was allowed.

When Donahue took the stand he proceeded to invoke the Fifth Amendment for questions outside the restricted area, N.T. 127-129, and the court declared a mistrial. Riffert thereupon moved to dismiss charges. She argues that calling Donahue as a witness constituted prosecutorial misconduct designed to provoke a mistrial in order to secure a second, perhaps more favorable opportunity to convict her. She accuses the prosecution of bad faith and harassment and argues that the facts are controlled by Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981), where prosecutorial questioning amounted to overreaching, bad faith misconduct sufficient to preclude holding a new trial.

In Virtu, however, unlike the instant case, the prosecution deliberately sought no ruling on the witness’ privilege outside the hearing of the jury. Instead, the prosecution was guilty of deliberate misrepresentation of the facts surrounding the witness’ exercise of the privilege during a side-bar conference. Here, in contrast, an in camera hearing was held and the court gave permission to the prosecution to question the witness in all but a limited area. The record shows that the prosecution did not violate the terms set by the hearing court.

The lower court dismissed Riffert’s motion to dismiss under the standards of Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) and United States v. Dinitiz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In these cases, the standard governing when prosecutorial misconduct precludes a new trial are stated as “overreaching” or bad faith.

Riffert’s aborted trial began on January 10, 1983 and ended on January 11. In May 1982 the United States Supreme Court set new standards for double jeopardy in relation to a mistrial in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

In Oregon v. Kennedy, the Supreme Court acknowledged that the standard of Dinitz had generated confusion, and held that for the future, “the circumstances under which ... a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial” (at 679, 102 S.Ct. at 2091, 72 L.Ed.2d at 472).

Oregon v. Kennedy has been prospectively adopted by Pennsylvania but never applied. Com. v. Arelt, 308 Pa.Super. 236, 454 A.2d 108 (1982), Petition for Allowance of Appeal Denied (1983); Commonwealth v. Beaver, 317 Pa. Super. 88, 463 A.2d 1097 (1983); Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983); Commonwealth v. Freedman, 317 Pa.Super. 207, 463 A.2d 1158 (1983).

The standard of Oregon v. Kennedy is now applied to the facts of Riffert’s mistrial. We hold that this standard is applicable whether a defendant invokes the protection of the United States or the Pennsylvania constitution. Our review of the questions put to Donahue before the mistrial was declared shows that there is no evidence of any intentional provocation of a mistrial. The order of the trial court denying Riffert’s Motion to Dismiss is affirmed, and the case is remanded for trial. Jurisdiction is relinquished.

      . The order of the lower court is appealable before the new trial is held. Com. v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

      . The questions concerned (1) his whereabouts in June, 1982; (2) whether he ever registered at a hotel under the name of Terrence Conley; and (3) a conversation with a state trooper in June 1982.


author: JOHNSON, Judge:

text:
    469 A.2d 270
    Edward T. ENGLISH, Appellant, v. Martha E. ENGLISH.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1983.
    Filed Dec. 23, 1983.

      Frank Robert Cori, Orwigsburg, for appellant.
    Lanny George Felty, Pine Grove, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

Appellant Edward T. English appeals from the trial court orders (1) awarding primary custody of his son Matthew to appellee, the natural mother and (2) holding him in contempt of an earlier custody order which awarded primary custody to appellant and granted visitation rights to appellee. Because we find the record inadequate, we reverse and remand the custody order. We also affirm the contempt order.

The record indicates that the parties were married in April of 1979 and their only child, Matthew, was born October 13, 1979. The parties resided together until March of 1981 when appellee left the marital home. Subsequently, appellant, who continued to care for Matthew, petitioned for confirmation of custody. The evidence produced at the initial custody hearing revealed that appellant, a horse • trainer, resided in a mobile home on a farm with the child. Because of his extensive work schedule, the child was taken to a babysitter for care during the day. Appellant’s home and income were deemed adequate. Appellee, initially upon separation, resided with her sister and a third party in the third party’s home in Philadelphia. Appellee was, at that time, involved in establishing a business venture, requiring her to be away from her residence for periods of time, thereby delegating Matthew’s care to her sister.

The trial court determined, inter alia, that custody should be awarded to appellant because of his greater maturity and stability. Although the court found both parties to be fit, it was concerned with appellee’s voluntary abandonment of the child upon separation, her lack of maturity and the more suitable child care arrangements made by appellant. Therefore, custody was awarded on December 30, 1981 to appellant with liberal visitation rights granted to appellee. No appeal was taken.

On September 2, 1982 appellee was refused visitation by appellant’s babysitter who had appellant’s consent to such refusal. There had been some hostility between appellee and both appellant and the babysitter prior to this incident. Appellant and the babysitter thereafter refused to allow appellee to see Matthew. Appellee filed a petition for contempt alleging appellant’s violation of the December 30, 1981 order granting appellee visitation. The petition also prayed for modification of the previous custody order, to wit: custody to be awarded to appellee. Following a hearing, the trial court by order dated December 22, 1982 awarded primary custody of Matthew to appellee and granted appellant liberal visitation rights. By order dated December 23, 1982 appellant was held in contempt for disobeying the 1981 order regarding appellee’s visitation.

Our standards of review in custody matters have been summarized in Lewis v. Lewis, 267 Pa.Super. 235, 240-41, 406 A.2d 781, 783-4 (1979):

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded, (citations omitted)

Appellant raises three issues on appeal: (1) whether the trial court abused its discretion in changing custody of the child on a petition for modification of a custody order, (2) whether the record is deficient and fails to support the trial court’s findings as to custody and (3) whether the record supports the findings of contempt.

We note initially that the burden of proving substantial change of circumstances warranting a change in custody is upon the party seeking modification of the custody order. Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). However, once that substantial change has been established, both natural parents share equally the burden of demonstrating with which parent the child’s best interests will be served. Id.

This court has recognized that one requirement of the complete record in a custody case is that disinterested testimony be heard concerning the fitness of each parent’s home. Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981). In the instant case, home study reports were ordered by the trial court at the September 1981 hearing and subsequently performed. The written reports were placed into evidence without the testimony of the persons who prepared these reports.

It is settled that in a contested custody case, reports may not be admitted into evidence or considered by the court; the authors of the reports must themselves be produced, sworn and examined as witnesses and be subject to cross-examination. Dunsmore v. Dunsmore, 309 Pa.Super. 503, 455 A.2d 723 (1983). We note that neither party objected to the admission of the reports nor to the failure to produce the authors of the said reports. However, the trial court has a duty to ensure that the record is complete. Id.

It has been held that where competent, alternative evidence of the parties’ home environment is included in the record, the improper admission of home study reports, where said reports were expressly not weighed in the trial court’s deliberations, will not require reversal. Sandra L.H. v. Joseph M.H., 298 Pa.Super. 409, 444 A.2d 1241 (1982). However, because of the requirement that disinterested testimony concerning the respective homes of the parties be presented, the error in the instant case was not harmless. Although the trial court did not explicitly state in its opinion that it had relied on the reports, there was no other disinterested testimony regarding the fitness of appellant’s home and little regarding appellee’s home. See Hall v. Luick, 314 Pa.Super. 460, 461 A.2d 248 (1983).

Also, the trial court was further required to consider the advantages and risks of a change in custody. This court has noted the importance to a child’s development of a stable relationship with an established parental figure and a known physical environment. Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980). Where the child’s parents are determined to be equally fit, or nearly so, as in the present case, the fact that a stable, long-continued and happy relationship has developed between the child and one parent may be of critical importance to the formulation of an appropriate custody decree. Id. The trial court failed to fully discuss the possible effect on the child of the proposed transfer of custody. See Hugo v. Hugo, supra (continued residence of child with one parent may be controlling).

Therefore, we must reverse the order of January 21, 1983 as it grants primary custody to appellee and remand for further hearings.

Appellant also argues that the record fails to support the trial court’s finding of appellant in contempt of the order of December 30, 1981 granting visitation privileges to appellee. We disagree.

As stated in Pamela J.K. v. Roger D.J., 277 Pa.Super. at 593-4, 419 A.2d at 1309:

When a custodial parent so obstructs the visits between the child and the non-custodial parent that the best interests of the child are no longer being served, a change of custody is warranted. Moreover, an obstruction of the right to visit the child is especially serious where, as in the present case, a court visitation order has been entered. A custodial parent who wilfully ignores a visitation order and obstructs the child’s visits with the noncustodial parent is little different from the parent who ignores a court order awarding custody and by force or trick snatches the child from the other parent. In both instances, extra-legal means are used to defeat the other parent’s established legal rights. Such conduct will not be tolerated by this court, (citations omitted)

Our review of the record makes clear that the trial court properly held appellant in contempt. Appellant could have avoided the contempt action by proceeding by legal means to have the visitation order modified. We find no merit to appellant’s allegations that the trial court failed to take into account the mitigating circumstances surrounding appellant’s decision to deny visitation, e.g., appellant’s belief that the visitations were causing Matthew psychological harm. Such a belief, even if reasonably and honestly held, does not justify the deliberate violation of an order of court in the instant circumstances.

Finally, appellant argues that the trial court based its change in custody order on appellant’s violation of the visitation order.

A custody decree is not meant to punish a parent or anyone else, its only purpose is to help the children. In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982). We need not rule on appellant’s argument, however, because of our determination concerning the custody issue.

The order of January 21, 1983 is (1) affirmed as it applies to the December 23, 1982 order holding appellant in contempt and (2) reversed and remanded for further hearings as it applies to the award of primary custody to appellee. Jurisdiction is not retained.

      . Although not determined to have harmed the child, the evidence also indicated appellee’s involvement with illegal drugs prior to the separation.

      . Subsequently, on January 17, 1983, the location where the parties were to meet to transfer custody of Matthew was changed by order of court. The January 21, 1983 order referred to in the caption was the date judgment was entered in this matter.

      . We recognize that the issue of the proper scope of review applied in custody cases is presently before our en banc Court in the case of IN RE Donna Williams, 674 Pittsburgh, 1981, argued May 10, 1983; however, the exercise of a different scope of review in this case would not affect the result.

      . The reports have not been included in the record as forwarded to this court. There is only a copy of them in appellee’s brief.


author: PER CURIAM:

text:
    469 A.2d 601
    COMMONWEALTH of Pennsylvania, v. Benjamin GOLDHAMMER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1983.
    Filed Nov. 10, 1983.
    Reargument Denied Jan. 24, 1984.
    Petition for Allowance of Appeal Granted May 24, 1984.

      Stanford Shmukler, Philadelphia, for appellant.
    Mariana C. Sorensen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

Appellant Benjamin Goldhammer was convicted of 56 counts each of theft by unlawful taking and forgery following a non-jury trial before the Honorable Michael E. Wallace. Post-trial motions were denied and appellant was sentenced to two consecutive sentences of imprisonment. The court granted appellant’s petition for modification of sentence and resentenced him to a two to five year term of imprisonment on one count of theft and five years probation on one count of forgery. Sentence on the remaining counts was suspended.

On this direct appeal, appellant raises the following issues:

(1) The court erred in refusing to suppress evidence obtained from appellant’s attorney, from his bank and pursuant to an arrest warrant, the affidavit for which contained inaccurate information.
(2) The evidence was insufficient to sustain the forgery convictions.
(3) Many of the theft charges were barred by the statute of limitations.

We affirm in part and reverse in part.

Appellant had been employed as controller for Lessner and Company, Inc., a mechanical contracting corporation, since 1974. In February 1979, appellant suffered a heart attack while on vacation in Las Vegas. Henry J. Lessner, the president of the corporation, began to review the current bank statements and cancelled checks in appellant’s absence. After investigation, he discovered a total of 57 checks bearing the apparently forged signature of Richard J. Kates, one of the authorized signatories. It was ultimately discovered that those checks had either been cashed by appellant or deposited into his checking account. The evidence presented at trial included certain of appellant’s bank records which had been given to Lessner’s counsel by appellant’s counsel, records which had been obtained from appellant’s bank pursuant to a lawful subpoena issued after appellant’s arrest, testimony from Mr. Lessner and Mr. Kates, and the testimony of a questioned document examiner who compared the handwriting on the checks in question with exemplars obtained from appellant, Mr. Kates and Mr. Lessner.

Appellant first argues that the court should have suppressed the bank records obtained by Lessner’s attorney from appellant’s attorney. These records were volunteered to Lessner’s attorney for the purpose of convincing Lessner that appellant had spent most of the money and to induce Lessner to accept a settlement in the form of a second .mortgage on appellant’s house. No settlement was ever worked out and Lessner subsequently turned the bank records over to law enforcement officials after he had filed the criminal complaint. It has long been established that the Fourth Amendment’s prohibition against illegal search and seizure applies only to the actions of governmental authorities, not to the actions of private persons. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The government is precluded from using evidence obtained by a private person only if that person acted as an instrument or agent of the state. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The records in question were obtained by Lessner and his attorney long prior to any governmental knowledge or action in this matter. Therefore, the court was correct in refusing to suppress this evidence.

Appellant further argues that the bank records obtained from Fidelity Bank should have been suppressed under Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979). In DeJohn, the defendant’s bank records were obtained pursuant to a concededly invalid subpoena at a time prior to the institution of criminal charges against her. The Supreme Court held that a bank depositor has a sufficient privacy interest in bank records so as to have standing to challenge the illegal seizure of same (i.e., pursuant to an invalid subpoena). In the instant case, the records were obtained pursuant to a valid warrant; appellant advances no reason why the seizure is otherwise illegal. DeJohn does not compel suppression under these circumstances. Indeed, the Supreme Court in DeJohn noted that “A bank could always be compelled to turn over customer’s records when served with a valid search warrant or some other type of valid legal process, such as a lawful subpoena.” Commonwealth v. DeJohn, 486 Pa. 32, 48, 403 A.2d 1283, 1291 (1979). It was not, therefore, error to refuse to suppress the records obtained from Fidelity Bank.

Finally, appellant sought to suppress evidence obtained as a result of the arrest warrant because the affidavit contained a misstatement. In order to invalidate an arrest warrant, a misstatement of fact in the affidavit must be both material and deliberate. Commonwealth v. Bradshaw, 290 Pa.Super. 162, 434 A.2d 181 (1981). It is undisputed that the misstatement in this case was unintentional. Moreover, the trial court found, and we agree, that deletion of the misstatement from the affidavit would still leave sufficient facts to establish probable cause. Therefore, the misstatement is not material, In Interest of Eckert, 260 Pa.Super. 161, 393 A.2d 1201 (1978), and suppression was properly denied.

Appellant next contends that the evidence was insufficient to support the forgery convictions because the convictions were based on expert testimony which was not “positive”. We disagree. In reviewing such a claim, we view the evidence in the light most favorable to the Commonwealth, accepting as true all the evidence and all reasonable inferences therefrom. Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979). Our review of the record convinces us that the expert testimony combined with all the other evidence presented by the Commonwealth was sufficient to sustain the convictions.

Finally, appellant argues that certain of the theft convictions are barred by the statute of limitations. The applicable statute of limitations for theft is two years. 42 Pa.C.S.A. § 5552. The offenses involved herein occurred at various times between November 1974 and January 1979. The statute, however, contains the following exception:

(c) Exceptions. — If the period prescribed in subsection (a) or subsection (b) has expired, a prosecution may nevertheless be commenced for:
(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

Citing Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981), appellant contends that neither fraud nor breach of fiduciary obligation is a material element of the crime of theft by unlawful taking. In Eackles, a panel of this court determined that the Commonwealth is not required to prove fraud in order to convict a person of theft by unlawful taking; i.e., that fraud is not a material element of that crime. The Commonwealth would have us look at the particular facts of each case, determine whether fraud or breach of fiduciary duty was proven, and apply the exception to those cases where proof of fraud or breach of fiduciary duty is present. That is, however, precisely what the court in Eackles refused to do. We must, therefore, discharge appellant on those theft counts which occurred more than two years prior to the date the complaint was filed. See also, Commonwealth v. Hawkins, 294 Pa.Super. 57, 439 A.2d 748 (1982).

The judgment of sentence is reversed and appellant is discharged as to Bills # 1857 through 1862, 1866 through 1875, 1879 through 1888, and 1907 through 1914; the judgment of sentence is affirmed as to all the other convictions.

      . Appellant was charged with theft and forgery on all 57 checks but the charges as to one check were dismissed at the preliminary hearing.

      . Because of our disposition of this issue, we need not deal with appellant’s other arguments relating to the interpretation of this statute.