text:
    454 A.2d 166
    Commonwealth v. Lark, Appellant.
    Submitted June 2, 1982.
    Warren R. Hamilton, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    454 A.2d 166
    Commonwealth v. McMullen, Sr., Appellant.
    Submitted September 21, 1982.
    Richard F. Maffett, Jr., Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 166
    Commonwealth v. Mogil, Appellant.

      Argued December 14, 1981.
    Gary M. Mogil, appellant, in propria persona; J. William Ditter, III, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Order affirmed.


text:
    454 A.2d 166
    Commonwealth v. Morris, Appellant.
    Submitted September 21, 1982.
    Robert Niels Tarman, Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 167
    Commonwealth v. Ortiz, Appellant.
    Submitted September 14, 1982.
    Robert E. Donatelli, for appellant; William H. Platt, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   Order affirmed.


text:
    454 A.2d 167
    Commonwealth v. Ryan, Appellant.
    Petition for Allowance of Appeal Denied March 14,. 1983.
    Submitted April 26, 1982.
    Donald R. Calaiaro, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   Order affirmed.


text:
    454 A.2d 167
    Commonwealth v. Smith, Appellant.
    Argued April 7, 1982.
    Harry V. Klein, for appellant; James J. Rosini, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 167
    Commonwealth v. Vaughn, Appellant.
    Petitions for Allowance of Appeal Denied Sept. 8, 1983 & Mar. 20, 1984.
    Submitted February 16, 1982.
    Brian R. Williams, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   The order denying relief under the Post Conviction Hearing Act is affirmed.


text:
    454 A.2d 168
    Commonwealth v. Williams, Appellant.
    Petition for Allowance of Appeal Denied May 12, 1983.

      Submitted May 5, 1982.
    Robert T. Gownley, Jr., Assistant Public Defender, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 168
    Commonwealth v. Wyatt, Appellant.
    Submitted December 5, 1980.
    Barry M. Miller, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CAVANAUGH and MONTEMU-RO, JJ.
   Order affirmed.


text:
    454 A.2d 168
    Eternal Truth Church, Appellant v. Charter Oak Insurance Co.
    Argued June 16, 1982.
    John Richard Orie, Jr., for appellant; Daniel B. Winters, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order of lower court affirmed.


text:
    457 A.2d 579
    Ferber v. American Lamp, et al., Appellants. Ferber, Appellant v. Cohen, et al.
    Reargument Denied March 1, 1983.
    Petition for Allowance of Appeal Granted April 14, 1983.
    Argued September 29, 1982.
    E. Baum, for appellants (at No. 2781) and for appellees (at No. 2934); Joseph A. Prim, Jr., for appellant (at No. 2934) and for appellee (at No. 2781).
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   The judgment of the lower court is affirmed.

The order of the lower court is affirmed.


text:
    454 A.2d 169
    Guarrera, et al. v. Bogosian, Appellants.
    Petition for Allowance of Appeal Denied March 22, 1983.

      Argued September 15, 1981.
    Leo A. Hackett, for appellant; Harvey A. Sernovitz, for appellee.
    Before CAVANAUGH, DiSALLE and WATKINS, JJ.
   Order affirmed.

DiSALLE, J., did not participate in the consideration or decision of this case.


text:
    454 A.2d 169
    Hawryluk, Appellant v. Cargas, etc.
    Argued June 22, 1981.
    Charles A. Buechel, for appellant; Craig A. Stone, for appellee.
    Before PRICE, JOHNSON and SHERTZ, JJ.
   The order granting a new trial is affirmed.


text:
    454 A.2d 169
    Hegarty, Appellant v. Septa.
    Argued September 29, 1982.
    B. Alan Dash, for appellant; John Rogers Carroll, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   Judgment affirmed.


text:
    454 A.2d 169
    Howell v. McClure and Cunningham-Kivitz. Appeal of Richard and Jane McClure.
    Argued September 8, 1980.
    Deborah Harris, for appellant; William D. Harris, for Howell, appellee; Charles J. Bogdonoff, for Cunningham-Kivitz, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Judgment affirmed.

HOFFMAN, J., filed a memorandum dissenting opinion.


text:
    454 A.2d 170
    In The Interest of Wiley. Appeal of York County Children and Youth Services. Appeal of Jan M. Wiley and Joan Wiley.
    Petition for Allowance of Appeal Denied March 14, 1983.
    Submitted September 15, 1982.
    S. Stanley Rebert, for appellants (at Nos. 22 & 44), and for participating party (at No. 55); Maria P. Cognetti, for appellant (at No. 55) and for participating parties (at Nos. 24 & 44); Ronald Perry, for Jon David Wiley, appellee (at Nos. 44 & 55).
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Orders affirmed.


text:
    454 A.2d 170
    North Side Bank v. Desolvo Co., Appellants.
    Argued October 12, 1982.
    Michael W. Zurat, submitted a brief on behalf of appellants; Samuel P. Kamin, for appellees.
    Before CERCONE, P.J., WIEAND and BECK, JJ.
   Order affirmed.


text:
    454 A.2d 170
    Stachorsky v. Walen, Appellant.
    Argued May 12, 1981.
    Keith L. Kilgore, for appellant; Stanley W. Katz, for appellees.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    455 A.2d 728
    Swinney v. Temple Mutual, Appellant.
    Reargument Denied Feb. 25, 1983.
    Petition for Allowance of Appeal Denied June 15, 1983.
    Argued September 14, 1982.
    Marvin H. Donsky, for appellant; Joseph F. Nowicki, for appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   Order affirmed.


text:
    December 22, 1982.
    456 A.2d 665
    Commonwealth v. Kuykendall, Appellant.
    Reargument Denied March 7, 1983.
    Petition for Allowance of Appeal Granted Aug. 10, 1983.
    Argued September 15, 1982.
    David A. Goldman, for appellant; William A. Helm, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 173
    Commonwealth v. McCowin, Sr., Appellant.
    Argued September 23, 1981.
    Daniel W. Shoemaker, for appellant; Sheryl Ann Dorney, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The order of the learned York County Common Pleas Court Judge Emanuel A. Cassimatis is affirmed.


text:
    December 23, 1982.
    454 A.2d 171
    Commonwealth v. Alford, Appellant.
    Petition for Allowance of Appeal Denied March 22, 1983.
    Submitted March 31, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, . District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 171
    Commonwealth v. Bey, Appellant.
    Argued November 18, 1981.
    Ronald M. McCaskill, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Theodore B. Smith, Jr. is affirmed.


text:
    454 A.2d 171
    Commonwealth v. Clutter, Appellant.
    Submitted June 21, 1982.
    Kevin Lee Sanders, for appellant; Ray Frank Gricar, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 171
    Commonwealth v. Coleman, Appellant.

      Submitted September 15, 1982.
    Richard A. McDaniel, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 172
    Commonwealth v. Collins, Appellant.
    Submitted May 20, 1982.
    Daniel R. Lovette, III, Assistant Public Defender, for appellant; D. Long, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 172
    Commonwealth v. Haegle, Appellant.
    Submitted April 21, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgments of sentence are affirmed.


text:
    454 A.2d 172
    Commonwealth v. Hayes, Appellant.
    Petition for Allowance of Appeal Denied March 2, 1983.
    Submitted April 14, 1982.
    John H. Corbett, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 173
    Commonwealth v. Henninger, Appellant.
    Argued October 12, 1982.
    Carmela R.M. Presogna, Assistant Public Defender, for appellant; Michael R. Cauley, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 173
    Commonwealth v. Johnston, Appellant.
    Submitted April 14, 1982.
    David G. Metinko, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The judgment of sentence dated May 19, 1980 is affirmed.


text:
    456 A.2d 665
    Commonwealth v. Ott, Appellant.
    Reargument Denied March 7, 1983.
    Argued November 16, 1981.
    John McCrea, III, for appellant; Edgar B. Bayley, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Cumberland County Judge John A. Cherry is affirmed.


text:
    454 A.2d 173
    Commonwealth v. Payne, Appellant.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.
    Submitted December 9, 1981.
    Donald Joel, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 174
    Commonwealth v. Plexico, Appellant.
    Petition for Allowance of Appeal Denied March 22, 1983.

      Argued December 8, 1981.
    Joseph T. Kelley, for appellant; Mark S. Gurevitz, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 174
    Commonwealth v. Sanders, Appellant.
    Submitted June 13, 1980.
    Elaine DeMasse, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WICKERSHAM and LIPEZ, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    454 A.2d 174
    Commonwealth v. Stanley, Appellant.
    Submitted September 14, 1982.
    Arthur G. Nassau, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    455 A.2d 1238
    D’Amico, et al. v. Harbor Greene, et al., Appellants.
    Reargument Denied March 4, 1983.
    Petition for Allowance of Appeal Denied June 7, 1983.
    Argued June 17, 1982.
    James A. Pitonyak, for appellants; James R. Jenks, for appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   The decree absolute issued by the lower court by hereby affirmed.


text:
    455 A.2d 1239
    Domino, Inc., Appellant v. City of Pittsburgh.
    Reargument Denied March 4, 1983.
    Petition for Allowance of Appeal Denied June 2, 1983.
    Argued April 29, 1981.
    John T. Bender, for appellant; Dante R. Pellegrini, Deputy City Solicitor, for appellee.
    Before CERCONE, P.J., BROSKY and HOFFMAN, JJ.
   The order of the lower court is affirmed.


text:
    454 A.2d 175
    Greer v. Penn Central & Baltimore & Ohio Railroad. Appeal of: Richard Greer.
    Argued October 5, 1981.
    Alexander Zdrok, for appellant; John A. Shrader, for appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Eugene Gelfand is affirmed.


text:
    454 A.2d 175
    Kendralla v. Gapen, Appellants.
    Petition for Allowance of Appeal Denied May 4, 1983.
    Argued May 19, 1982.
    John Hook, Jr., for appellants; John A. Stets, for appellees.
    Before HESTER, McEWEN and JOHNSON, JJ.
   Order affirmed.


text:
    455 A.2d 1239
    Reverend King, et al., Appellants v. Hope, et al.
    Reargument Denied March 2, 1983.
    Petition for Allowance of Appeal Denied May 20, 1983.
    Argued December 9, 1981.
    Roland J. Atkins, for appellants; Corin Greaves, for appellees.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Order affirmed.


text:
    454 A.2d 175
    Martz v. Mechanicsville Fish & Game Assoc., Appellant.
    Argued September 29, 1982.
    Chester C. Corse, Jr., for appellant; Joseph A. Zane, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   The order of the lower court is affirmed.


text:
    454 A.2d 175
    Moore, et ux., Appellants v. Westcott and Sullivan, etc.

      Argued December 8, 1981.
    Edward Blumstein, for appellants; Mark S. Harris, Assistant County Solicitor, for appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Order affirmed.


text:
    454 A.2d 176
    Ohls, Appellant v. American International Life Insurance Co.
    Argued November 13, 1980.
    David M. Moran, for appellant; Joseph S.D. Christof, for appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   Order affirmed.


text:
    454 A.2d 176
    Philadelphia Federation of Teachers, et al. v. Richman, et al. Appeal of The Philadelphia Federation of Teachers’ Health and Welfare Fund. Appeal of: Sunny Richman and John A. Ryan.
    Argued Decernber 5, 1980.
    William A. Fitzpatrick, for appellant (at No. 2025) and for participating party (at No. 2026); James J. Binns, for Phila. Fed., et al., appellees; Roberto Rivera-Soto, for appellants (at No. 2026) and for appellees (at No. 2025).
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    454 A.2d 176
    Sentinel Federal Savings v. Cvihanovich, et ux., Appellants.
    Argued April 13, 1982.
    John W. Pollins, III, for appellants; William F. Caruthers, submitted a brief on behalf of appellants; Dennis J. Gounley, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    454 A.2d 177
    Universal Guardian Corp. v. Smith, et ux., Appellants.
    Argued December 8, 1981.
    Timothy D. Sheffey, for appellants; Michael J. Glasheen, for appellee.

      Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    December 30, 1982.
    454 A.2d 177
    Commonwealth v. Abernathy, Appellant.
    Submitted April 12, 1982.
    Daniel P. McDyer, for appellant; Donald E. Williams, District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The judgment of sentence is affirmed.


text:
    454 A.2d 177
    Commonwealth v. Farrell, Appellant.
    Petition for Allowance of Appeal Denied May 4, 1983.
    Argued May 19, 1982.
    Norma Chase, for appellant; William G. Martin, District Attorney, for Commonwealth, appellee.

      Before HESTER, McEWEN and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 177
    Commonwealth v. Foster, Appellant.
    Submitted December 7, 1981.
    Anne L. Wall, Assistant Public Defender, for appellant; Kenneth Brown, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and McEWEN, JJ.
   Judgment of sentence affirmed.

CAVANAUGH, J., filed a memorandum concurring opinion.


text:
    454 A.2d 178
    Commonwealth v. Holmes, Appellant.
    Petition for Allowance of Appeal Denied June 17, 1983.
    Submitted February 24, 1982.
    Leslie J. Carson, for appellant; Deborah Fox, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and ROWLEY, JJ.
   Order affirmed.

SPAETH, J., concurred in the result.


text:
    454 A.2d 178
    Commonwealth v. Laughman, Appellant.
    Submitted June 24, 1981.
    H. Stanley Rebert, Public Defender, for appellant; Harry M. Ness, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 178
    Commonwealth v. Martinson, Appellant.
    Petition for Allowance of Appeal Denied Feb. 25, 1983.
    Submitted December 14, 1981.
    John G. McDougall, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 179
    Commonwealth v. Monteleone, Appellant.
    Submitted February 17, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   The judgment of sentence is affirmed.


text:
    454 A.2d 179
    Commonwealth, Appellant v. O’Hara.
    Submitted February 17, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., JOHNSON and MONTGOMERY, JJ.
   The judgment of sentence is affirmed.


text:
    454 A.2d 179
    Commonwealth v. Perkins, Appellant.
    Submitted October 13, 1982.
    Mr. Donald Perkins, appellant, in propria persona; Herman J. Bigi, District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   Order affirmed.


text:
    454 A.2d 179
    Commonwealth v. Shack, Appellant.
    Petition for Allowance of Appeal Denied May 19, 1983.
    Argued January 5, 1981.
    Nicholas Guarente, Assistant Public Defender, for appellant; David E. Fritchey, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 180
    Commonwealth v. Sitkin, Appellant.
    Petition for Allowance of Appeal Denied May 4, 1983.
    Argued October 27, 1982.
    Thomas I. Puleo, for appellant; Gail Thackeray, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 180
    Commonwealth v. Trygar, Appellant.
    Petition for Allowance of Appeal Denied May 4, 1983.

      Submitted February 18, 1982.
    John Joseph Mercuri, Assistant Public Defender, for appellant; Ernest D. Preate, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   The judgment of sentence is affirmed.


text:
    454 A.2d 180
    Commonwealth v. Walker, Appellant.
    Petition for Allowance of Appeal Denied March 28, 1983.
    Submitted October 26, 1982.
    Sheri Desaretz, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgments of sentence affirmed.


text:
    454 A.2d 181
    Commonwealth v. Waring, Appellant.
    Petition for Allowance of Appeal Denied March 22, 1983.

      Submitted October 27, 1982.
    Allan M. Tabas, for appellant; Gaele M. Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 181
    Ellerbe v. Johnson Products Co., Inc., et al. Appeal of Johnson Products Co., Inc.
    Argued June 2, 1982.
    Jonathan Wheeler, for appellant; Stephen E. Levin, for Ellerbe, appellees; David A. Soltz, for Leof, appellees.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   The order dated July 1, 1981 is affirmed.


text:
    454 A.2d 181
    Evans, etc., Appellants v. Somoga.
    Argued April 21, 1981.
    Frank Townsend, for appellants; Anthony J. Lumbis, for appellees.

      Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order affirmed.


text:
    457 A.2d 130
    Folcarelli v. Transportation Services, et al. Appeal of Carolyn L. Folcarelli.
    Reargument Denied March 11, 1983.
    Petition for Allowance of Appeal Denied June 22, 1983.
    Submitted December 15, 1981.
    Jerome Nulty, for appellant; Gilbert P. High, Jr., for appellees.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The judgment of the learned Montgomery County Common Pleas Court Judge Vincent A. Cirillo is affirmed.


text:
    454 A.2d 181
    In the Matter of Patricia R.
    Argued May 20, 1982.
    Camela Presgona, Assistant Public Defender, for appellant; Dana S. Jones, for participating party.

      Before HESTER, McEWEN and JOHNSON, JJ.
   The order of the learned Erie County Judge Fred P. Anthony is affirmed.


text:
    454 A.2d 182
    Javc, Inc. v. Cerami, et al., Appellants.
    Petition for Allowance of Appeal Denied April 19, 1983.
    Argued December 2, 1980.
    Neil Jokelson, for appellants; Garland D. Cherry, for appellee.
    Before PRICE, WATKINS and LIPEZ, JJ.
   Orders affirmed.


text:
    454 A.2d 182
    Magen, Appellant v. Lankenau Hospital, et al.
    Petition for Allowance of Appeal Granted May 16, 1983.
    Argued September 10, 1980.
    S. Robert Levant, for appellant; Ralph L. Hose, for Lankenau, appellee; James J. McCabe, for Jones, appellee; James L. Griffith, for Neal, appellee.

      Before SPAETH, HESTER and CAVANAUGH, JJ.
   Judgment affirmed.


text:
    454 A.2d 182
    Manton v. Manton, Appellant.
    Argued June 24, 1981.
    Allen H. Smith,, for appellant; Michael J. Brillhart, for appellee.
    Before PRICE, JOHNSON and SHERTZ, JJ.

       SHERTZ, J., did not participate in the consideration or decision of this case.

   The order dated April 15, 1980 is affirmed.


text:
    454 A.2d 182
    Minersville Safe Deposit Bank v. Tomalonis, et al. Appeal of Shirley Madden.
    Argued June 9, 1980.
    Stephen P. Edward, for appellant; James D. Watt, for Minersville, appellee; Joseph C. Tomalonis, Jr. and Veronica Tomalonis, appellees, in propria persona.

      Before BROSKY, CIRILLO and HOFFMAN, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.

   Affirmed.


text:
    454 A.2d 183
    3958 Rail Cafe, Inc., et al., Appellants v. Rose Vending Co.
    Petition for Allowance of Appeal Denied June 8, 1983.
    Argued December 16, 1981.
    Abe Lapowsky, for appellants; Richard M. Sand, for appellees.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   We affirm the order of April 20, 1981, of the Common Pleas Court of Philadelphia County, based upon the adjudication and opinion of the distinguished Judge Matthew W. Bullock, Jr.


text:
    454 A.2d 183
    Richter, Appellant v. Richter.
    Petition for Allowance of Appeal Denied May 4, 1983.

      Argued December 9, 1981.
    David Freeman, for appellant; Joel D. Beaver, for appellee.
    Before McEWEN, BECK and MONTEMURO, JJ.
   The order of the learned Montgomery County Common Pleas Court Judge Lawrence A. Brown is affirmed.


text:
    454 A.2d 183
    Sally Shops, Appellant v. DeBartolo, et al.
    Argued February 17, 1982.
    Carl G. Roberts, for appellant; Ira Paul Tiger, for appellees.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   The order is affirmed.


text:
    454 A.2d 184
    Stephano, et al., Appellants v. Roadway Express, Inc.
    Argued October 26, 1982.
    James J. Oliver, for appellants; Robert W. Honeyman, for appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Order affirmed.


author: CIRILLO, Judge:

text:
    454 A.2d 1051
    COUNTY OF ALLEGHENY, Appellant v. MERRIT CONSTRUCTION COMPANY, INC. a Corporation and Georgetown Development Company, Inc., a Corporation v. MOON TOWNSHIP MUNICIPAL AUTHORITY.
    Superior Court of Pennsylvania.
    Submitted May 20, 1982.
    Filed Dec. 23, 1982.

      Howard M. Louik, County Solicitor, Pittsburgh, for appellant.
    Louis Anstandig, Pittsburgh, for appellees.
    Before ROWLEY, CIRILLO  and VAN der YOORT, JJ.

       This writer was assigned this case on October 25, 1982.

   CIRILLO, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County, dated July 21, 1981, granting Judgment on the pleadings in favor of the defendants-appellees on the grounds that plaintiff-appellant’s action was barred by the statute of limitations. We affirm.

The appellant, County of Allegheny (hereinafter “County”) is and was at all times relevant to this lawsuit, the owner of a right of way known as “Spring Run Road Extension” (hereinafter “the road”) located in Moon Township, Allegheny County, Pennsylvania. The appellees, Merrit Construction Company, Inc. (hereinafter “Merrit”) and Georgetown Development Company, Inc. (hereinafter “Georgetown”) are the owners of 40.18 acres of real property, a portion of which lies adjacent to the road. In the course of the construction of a residential development, the appellees, Merrit and Georgetown excavated portions of the hillside along this road. In March 1977, a landslide occurred which caused loss of subjacent and lateral support. Subsequently, vehicular traffic was barred from use of the road because of the landslide. On January 27, 1978 an additional movement of the original landslide occurred causing further erosion of subjacent and lateral support. On June 29, 1978, the County awarded a contract for the repair and improvement of this area, which included restoring the lost support and construction of a crib wall on the appellee’s property to prevent further landslides. Work began on the project on November 13, 1978. On May 6, 1980, the County filed this action to recover the reasonable and necessary cost of repair to the road. The appellees, Merrit and Georgetown and an additional defendant, Moon Township Sanitary Authority, filed Answers raising in New Matter the defense of statute of limitations as set forth at 42 Pa.C.S.A. § 5524(4). The County was permitted to amend its Response to New Matter to allege a continuing trespass to real property.

Judgment on the pleadings is appropriate only where no material facts are in dispute. Penna. Assn, of State Mental Hospital Physicians, Inc. v. State Emp. Retirement Board, 484 Pa. 313, 399 A.2d 93 (1979); Nevling v. Natoli, 290 Pa.Super. 174, 434 A.2d 187 (1981). To succeed on a motion for judgment on the pleadings, the moving party’s right to prevail must be so clear that a trial would be clearly a fruitless exercise. Keil v. Good, 467 Pa. 317, 356 A.2d 768 (1976); Nevling, supra; Pa.R.C.P. No. 1034, 42 Pa.C.S.A.

In its Amended Reply to Defendants’ New Matter the appellant merely asserted the landslide constituted a “continuing trespass” and that the statute of limitations did not begin to run until cessation of the trespass on November 13, 1978, the date that the County began work on the project.

The concept of a “continuing trespass” is defined under the Restatement of Torts, § 161, comment (b) which provides:

b. Continuing trespass. The actor’s failure to remove from land in the possession of another a structure, chattel or other thing which he has tortiously erected or placed on the land constitutes a continuing trespass for the entire time during which the thing is wrongfully on the land and, except where Comment d applies, confers on the possessor of the land an option to maintain a succession of actions based on the theory of continuing trespass or to treat the continuance of the thing on the land as an aggravation of the original trespass.

A permanent trespass is defined by the Restatement of Torts, Section 162, comment (e) as follows:

Effect of a permanent change in the condition of the land. A continuing trespass must be distinguished from a trespass which permanently changes the physical condition of the land. Thus, if one, without a privilege to do so, enters land of which another is in possession and destroys or removes a structure standing upon the land, or digs a well or makes some other excavation or removes earth or some other substance from the land, the fact that the harm thus occasioned on the land is a continuing harm does not subject the actor to liability for a continuing trespass. Since his conduct has once for all produced a permanent injury to the land, the possessor’s right is to full redress in a single action for the trespass, and a subsequent transferee of the land, as such, acquires no cause of action for the alteration of the condition of the land.

This issue was specifically addressed by our Supreme Court in Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 197 A.2d 44 (1964), which stated,

[A] continuing trespass must be distinguished from a trespass that effects a permanent change in the condition of the land. The latter, while resulting in a continuing harm, does not subject the trespasser to liability for a continuing trespass. If a nuisance at the time of creation is a permanent one, the consequences of which in the normal course of things will continue indefinitely, there can be but a single action therefore to recover past and future damages and the statute of limitations runs against such cause of action from the time it first occurred, or at least from the date it should reasonably have been discovered, (citations omitted)

Id., 413 Pa. at 328, 197 A.2d at 47.

In reply to appellees’ New Matter raising the statute of limitations, appellant did not assert any new factual basis for defeating the appellees’ affirmative defense, nor did appellant allege any continuing activity on the part of the appellees.

The damage in the instant matter, was sustained in two separate incidents, one in March 1977, and another on January 27, 1978. The loss of subjacent and lateral support was the result of these two landslides. While the harm which occurred continued until the repair was initiated on November 13, 1978, the trespass itself was a single action which resulted in this harm. This is definitely a permanent trespass as defined by the Restatement of Torts § 162 comment (b) and exactly the situation the court addressed in Sustrik. In that case, a sewer pipe had been installed on plaintiffs property more than forty years prior to the time that suit was commenced. The Supreme Court rejected the plaintiff’s contention that this was a continuing trespass.

In the instant case, appellant cites a number of California cases in support of the contention that this landslide was not a permanent trespass. While we would point out that California law is not controlling, we also note that those cases cited by appellant are clearly distinguishable from the instant matter. In Carbine v. Meyer, 126 Cal.App.2d 386, 272 P.2d 849 (1954), the court held that three separate isolated instances of trespass over a period of five years did not result in a permanent trespass. Therefore, a cause of action instituted one month after the final episode was not barred by the statute of limitations. In Phillips v. City of Pasadena, 27 Cal.2d 104, 162 P.2d 625 (1945), the defendant had erected a gate, which unlawfully obstructed a road. The court held that if a nuisance may be discontinued at any time it is continuing in character. Consequently, each time the gate was erected it constituted a new cause of action. Following that reasoning to its logical conclusion, in the instant case, the last landslide would have provided the most recent trespass and appellant’s cause of action would be barred. The court in Phillips held that the gate did not constitute a permanent nuisance since it could be removed at any time. That is not so in the instant matter. A landslide is a permanent change, which is not easily removed. Finally, in Polin v. Chung Ho, 8 Cal.App.3d 673, 87 Cal.Rptr. 591 (1970), the court held that the diversion of a stream and storm drain by the defendant from plaintiffs property, which resulted in erosion during and after each rain, was a continuing trespass, notwithstanding that the defendants had completed the bulldozing more than three years prior to the filing of the cause of action. Here the original act resulted in subsequent reoccurring problems after every rain. In the instant case, no further harm had occurred since the last landslide in 1978.

Accordingly, we find that the landslide resulted in a permanent trespass. The appellant’s cause of action accrued at the latest on January 27, 1978. Since the appellant did not commence suit by January 27, 1980, its cause of action is barred by the statute of limitations. The lower court quite properly granted judgment on the pleadings.

Order and judgment affirmed.

      . Act of July 9, 1976, P.L. 586, No. 142 § 2.
      The following actions and proceedings must be commenced within two years:
      (4) An action for waste or trespass of real property.

      . Adopted June 25, 1946.
      (a) After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.

      . Appellant’s contention that the statute of limitations runs from November 13, 1978, the time that repairs were commenced, could result in exactly the situation in Sustrik. If we accepted this argument, a plaintiff could wait 20 years to repair the damage and then file suit within the two year period following those repairs. It is not at all hard to foresee that this would permit future plaintiffs to delay filing suit until such time as they would capriciously so desire. This could result in lawsuits being initiated years after the harm originally occurred and would be extremely unfair to unsuspecting potential defendants.


author: PRICE, Judge:

text:
    454 A.2d 1054
    Norman A. SINDLER and Marylin Sindler, his wife v. Gilbert S. GOLDMAN, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued April 16, 1980.
    Filed Dec. 30, 1982.

      Samuel H. Elkin, Pittsburgh, for appellant.
    William S. Smith, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.

       Died Jan. 30, 1983.

   PRICE, Judge:

This appeal from the grant of a new trial arises from an action in trespass. The original complaint consisted of two counts, the first a malpractice action by appellee, Marylin Sindler against appellant, Dr. Gilbert S. Goldman, and the second, an action for loss of consortium by appellee Norman Sindler against Dr. Goldman.

The case was tried before a jury, the Honorable Ralph H. Smith, Jr., presiding. The jury returned a verdict for Dr. Goldman on both counts on April 5, 1976. The Sindlers filed a Motion for New Trial which was granted by the lower court en banc (R.H. Smith, Jr. and Larsen, JJ.) on the basis that the verdict of the jury was so contrary to the evidence as to shock judicial conscience. The court did not consider the Sindlers’ second allegation of error concerning the failure of appellant to follow a local court rule. Dr. Goldman appealed the new trial award to this court and we reversed and remanded for consideration of the second allegation of error. See, Sindler v. Goldman, 256 Pa.Superior Ct. 417, 389 A.2d 1192 (1978).

On remand before the lower court en banc (R.H. Smith, Jr. and E.E. Narick, JJ.), the Sindler’s motion for a new trial was granted by Order dated June 21, 1979 at 3641 October Term, 1972, on the basis that the trial judge had erred in allowing the appellant, Dr. Goldman to testify even though he had not complied with local Rule 212 of Allegheny County by filing a pretrial expert report. Dr. Goldman has again appealed the new trial award to this court.

The facts of the case are as follows: Mrs. Sindler consulted Dr. Goldman shortly before July 6, 1971 for treatment of a growth on the left side of the base of her neck. (N.T. 25). Upon his advice and recommendation, Mrs. Sindler underwent surgery at Montefiore Hospital on July 6, 1971 and the growth, an enlarged lymph node, was removed from the left side of the base of her neck. (N.T. 26, 27). The condition was diagnosed as chronic, nonspecific lymphadenitis. (N.T. 99). Mrs. Sindler was released from the hospital the same day but had to return to Dr. Goldman’s office on July 8 to have a drain removed from the surgical wound. (N.T. 28). She complained of pain in her left arm during this visit but was advised that the pain would go away. No more pain-killing medication was prescribed for her. (N.T. 28, 29).

Mrs. Sindler continued to feel pain and she also began to lose mobility in the left arm. (N.T. 30-32). She made several return trips to Dr. Goldman’s office between July 8, 1971 and May 24, 1972. (N.T. 28-30). Dissatisfied, Mrs. Sindler consulted other medical experts and it was thereby determined that there was a loss of function in the superior portion of the left trapezius muscle. It was also concluded that the left trapezius muscle, which is controlled by the spinal accessory nerve, had hollowed out or atrophied. (N.T. 105, 175). The spinal accessory nerve is located in that area upon which Dr. Goldman operated. (N.T. 106). Subsequently, Mr. and Mrs. Sindler brought this suit alleging negligence on the part of Dr. Goldman in performing the operation and in failing to subsequently repair the damage allegedly caused during the operation.

At trial Dr. Goldman testified on his own behalf. Appellees do not contend that Dr. Goldman should not have been allowed to testify at all; rather they challenge only the parts of Dr. Goldman’s testimony that were expert in nature. Appellees, on the other hand, contend that it was proper for Dr. Goldman to testify as an expert considering the particular circumstances. The lower court did not agree with the appellant and ruled that it was reversible error and awarded a new trial.

A grant of a new trial is a matter within the sound discretion of the trial court. The lower court’s grant of a new trial will not be disturbed on appeal “unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of a new trial.” Crosbie v. Westinghouse Elevator Co., 297 Pa.Superior Ct. 304, 443 A.2d 849 (1982). Therefore, appellant has the heavy burden of convincing this court that there is no doubt but that the lower court abused its discretion or committed an error of law by granting the appellees a new trial.

The meaning of the Local Rule 212 upon which the grant of a new trial was based, is not disputed. The rule provides that:

c. Defendant, within fifteen (15) days after the time set for performance by the plaintiff under VI. A. and VI. B. hereof:
1. Shall serve upon all other parties a written statement containing:
d. The reports of any expert whose opinion will be offered in evidence at the time of trial. Such reports shall include the findings and conclusions of the expert.
e. Witnesses whose identities have not been revealed as provided in Paragraph ... VI. C. 1. c. and d., supra will not under any circumstances whatsoever, be permitted to testify at the subsequent trial of the case, (emphasis added)

Thus, accepting the literal meaning of the rule, Dr. Goldman should not have been allowed to testify as an expert witness. However, local rules are not always adhered to, nor need they be if there is a conflict between the local rule and a Pennsylvania Supreme Court rule, or if justice would be denied due to some procedural technicality. While we agree that rigid application of local rules is not always proper, in this case we feel that the appellees’ opportunity for a fair trial was thwarted by the trial judge’s failure to adhere to the rule.

The purpose of the discovery rules is to prevent surprise and unfairness and to allow a trial on the merits. When expert testihiony is involved, it is even more crucial that surprise be prevented, since the attorneys will not have the requisite knowledge of the subject with which to effectively rebut unexpected testimony. By allowing for early identification of expert witnesses and their conclusions, the opposing side can prepare to respond appropriately instead of trying to match years of expertise on the spot. Thus, the rule serves as more than a procedural technicality; it provides a shield to prevent the unfair advantage of having a surprise witness testify.

The Pennsylvania Supreme Court has recognized the importance of disclosing the identity of expert witnesses, and the necessity for trial courts to act in accordance with such discovery rules. In Nissley v. Pennsylvania Railroad Company, 435 Pa. 503, 259 A.2d 451 (1969), cert. denied, 397 U.S. 1078, 90 S.Ct. 1528, 25 L.Ed.2d 813, (1970), the court overruled the trial court’s decision to allow an expert to testify even though his identity had not been disclosed prior to trial. The court stated:

In such a case the jury is confronted with complicated, often bewildering, medical testimony. Inevitably, the weight which jurymen give to conflicting testimony will reflect the apparent expertise of the witnesses.... In such a case, therefore, it is of particular importance that the identity of expert witnesses be known in advance so that full examination of their qualifications can be made____ This case aptly demonstrates that the integrity of the discovery rules can be preserved only if the rules are taken more seriously than they were in the lower court.

435 Pa. at 509-510, 259 A.2d at 454-455.

The courts have allowed witnesses to testify in past cases even though discovery rules had not been followed. Indeed, we recognize that the preclusion of testimony is a drastic sanction. It is important to note, however, that the rule itself provides unconditionally that testimony will be precluded in the event of non-compliance. Thus, the issue becomes whether or not the appellees were denied their right to a fair trial by the trial judge’s failure to preclude the expert testimony of Dr. Goldman in compliance with the rule.

The case of Gill v. McGraw Electric Company, 264 Pa.Superior Ct. 368, 399 A.2d 1095 (1979), involved similar circumstances. In Gill, a pretrial order was entered which provided that a party’s expert reports had to be filed with the opponent before trial (thus similar to the mandate of Local Rule 212). The defendant in Gill entered the testimony of his experts over plaintiff’s objection despite his failure to comply with the pretrial order. In addition, plaintiff’s experts had been videotaped (as in the present case), and thus rebuttal was foreclosed. On appeal, we reversed and held that:

[T]he two expert witnesses called by appellee should not have been permitted to testify____ Appellee offered no excuse for its violation of the pre-trial conference order. Given such a silent record, we will not speculate about what appellee’s excuse might have been, if in fact it had an excuse.-... However, we find it clear that appellee’s conduct—both its violation of the pre-trial conference order and its failure to give counsel a copy of the laboratory report—was prejudicial to appellants, for it put appellants in the position of being unable to offer effective rebuttal—or any rebuttal—of appellee’s experts. Appellee’s conduct was especially prejudicial to appellants in view of the fact that appellants had offered only a videotape deposition of their expert. It is hardly surprising that the jury rejected the opinion expressed on video-tape, given the contrary opinion expressed by two experts who testified in person, and who were unrebutted.

264 Pa.Superior Ct. 368, 382-83, 399 A.2d 1095, 1102-03. Thus, the Gill case makes it clear that the admission of testimony over the objection that a pre-trial order was not complied with can lead to the inability to afford a fair trial.

As in Gill, appellant does not offer any reason or excuse for his failure to comply with the rule. Instead he relies on the nature of the circumstances in the case. Appellant argues that appellees had the opportunity to discover the opinions and conclusions of Dr. Goldman during a pre-trial deposition. At the deposition, Dr. Goldman was specifically advised by his attorneys not to answer particular questions or to offer his opinion on certain matters. It is undisputed that Dr. Goldman’s testimony at trial consisted of opinions as to questions which he had earlier refused to answer. Thus appellees had attempted to determine Dr. Goldman’s expert opinions and were thwarted in their efforts. They could have reasonably concluded that he was not going to act as an expert witness at trial, due to appellant’s action in filing an expert report of another doctor, but not for Dr. Goldman. Considering this, along with the fact that appellees’ experts were not present at trial but rather had been presented through videotape, and thus could not aid in rebuttal, (as in Gill, supra) we find that appellees were denied the opportunity for effective rebuttal.

Finally, we do not agree with appellant’s argument that even if an error was made in admitting the testimony, it was harmless and could not warrant the grant of a new trial. As Dr. Goldman was the only witness to testify in defense, his testimony can not be classified as anything other than critical. Without his expert testimony, the jury would have been more likely to accept that of the appellees’ experts, since it would have been uncontradicted. Thus we cannot say that the evidence did not affect the outcome of the case, and consequently we do not accept appellant’s final contention.

Therefore, the order of the trial court granting a new trial is affirmed.

      . The Sindler’s subsequent petition for Allowance of Appeal from the Superior Court Decision was denied by the Supreme Court on November 29, 1978 at No. 1727 Allocatur Docket.

      . See also, Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Hilliard v. Anderson, 440 Pa. 625, 271 A.2d 227 (1970); Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969); Carl v. Kurtz, 255 Pa.Superior Ct. 198, 386 A.2d 577 (1978).

      . See, Budget Laundry Co. v. Munter, 450 Pa. 13, 298 A.2d 55 (1972); Coffey v. Faix, 426 Pa. 421, 233 A.2d 229 (1967); McKay v. Beatty, 348 Pa. 286, 35 A.2d 264 (1944).

      . The Supreme Court of Pennsylvania apparently agrees with Local Rule 212 as evidenced by the adoption of Pa.R.C.P. § 4003.5 which codifies essentially the same principle. The rule provides that a party may through interrogatories require the identity of any expert witnesses and the substance of the expert’s expected testimony. In section (b) of the same rule the rule provides that if the latter section is not complied with, then the expert will “not be permitted to testify on behalf of the defaulting party at the trial of the action.”

      . See, Piekarski v. Club Overlook Estates, Inc., 281 Pa.Superior Ct. 162, 421 A.2d 1198 (1980); Nowosielski v. Kryzosiak, 280 Pa.Superior Ct. 243, 421 A.2d 703 (1980).

      . See, Gill v. McGraw Electric Co., 264 Pa.Superior Ct. 368, 383, 399 A.2d 1095, 1102 (1979).

      . We agree with Judge Spaeth’s dissenting opinion in Nowosielski v. Kryzosiak, 280 Pa.Superior Ct. 243, 249-50, 421 A.2d 703, 706 (1980) in which after concluding that Gill v. McGraw Electric Co., 264 Pa.Superior Ct. 368, 399 A.2d 1095 (1979) was not necessarily controlling he stated:
      Thus, the sanction of excluding the witness’s testimony was not discretionary, as in Gill, but mandatory, required in all cases and “under any circumstances whatsoever." Gill, therefore, is inapposite, and by relying on it, the majority has rewritten the local rule and transformed a mandatory sanction into a discretionary one---[W]e should not rewrite the rule but should require the lower court to apply it as the lower court has written it. Since here the lower court failed to apply its own rule, its judgment should be reversed and appellants granted a new trial.

      . Also, in Gill, we held that there are four factors which should be considered when deciding whether or not a witness should be precluded for a failure to comply with pre-trial orders. Although the present case does not involve the violation of a pre-trial order, the factors specified can be of some aid in consideration. They are: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, (4) bad faith of [sic] willfullness in failing to comply with the court’s order. 264 Pa.Superior Ct. 368, 382, 399 A.2d 1095, 1102 (1979). We are satisfied that these four factors weigh in appellee’s favor.

      . The appellants make much of the fact that the appellees had introduced parts of Dr. Goldman’s deposed testimony in making their own case-in-chief. We agree with appellees, however, that their use of this testimony consisted only of factual matters and did not involve any testimony that could be considered to be expert in nature.

      . Although appellant correctly argues that appellees could have asked for sanctions in order to try to get answers to their questions, their failure to do so was reasonable. They had no reason to suspect that Dr. Goldman would be testifying as an expert witness due to the appellant’s failure to include Dr. Goldman's name in the pretrial report concerning expert witnesses, and thus the answers would not have seemed crucial.

      . The other doctor, for whom an expert report was filed, was not called to testify at trial.


author: SPAETH, Judge:

text:
    454 A.2d 1059
    Patricia L. PLATEK, Appellant, v. Anthony L. PLATEK.
    Superior Court of Pennsylvania.
    Argued March 15, 1982.
    Filed Dec. 30, 1982.

      Mark A. Criss, Zelienople, for appellant.
    Norman D. Jaffe, Butler, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from two orders issued incident to a divorce action. The first order was issued on October 10, 1980. It enjoins appellant from disposing of a fund representing the remaining balance of the proceeds of a tort claim settlement obtained by the parties, and directs partition of a portion of that fund. The second order was issued on October 20, 1980. It dismisses preliminary objections that appellant had filed in response to appellee’s petition for an injunction. We have concluded that in directing partition, the lower court erred. So much of the order of October 10 as directs partition will therefore be vacated, and the case will be remanded for further proceedings.

The parties were married in 1969. While they were married, appellant was hurt in an accident, and as a result, the parties filed a trespass action, appellant claiming damages for her personal injuries and appellee making a consortium claim. The action was settled, and the proceeds of the settlement were deposited in the parties’ joint savings accounts, and also, apparently, in various certificates in their joint names.

On July 1, 1980, appellant brought this divorce action against appellee. Thereafter, appellee petitioned the lower court to enjoin appellant from disposing of the settlement proceeds. Appellant filed preliminary objections to the petition, alleging that “by reason of their origin,” the settlement proceeds were her “sole property” and that the lower court therefore “lack[ed] subject matter jurisdiction over said funds in the context of a divorce action.” R. 13-14.

The matter came on for hearing on October 10, 1980. At the outset of the hearing, the lower court stated that appellant’s preliminary objections were overruled. R. 21. Appellee’s counsel represented to the court, and appellant’s counsel agreed, that appellant had withdrawn the funds arising from the settlement of the trespass action, and had them in her possession. R. 23. Appellant’s counsel stated that “[m]uch of the money” had been spent—on various matters as to which he said he was prepared to present testimony—and that “the cash on hand as of this moment” was $53,807.29. Id.

At the end of the hearing, the lower court entered an order that “each party is entitled to the sum of Ten Thousand Dollars” from the money in appellant’s possession, and that “[t]he balance ... is to be frozen until further order of the Court.” R. 38. The court declined to receive any of the testimony proffered by appellant.

In its opinion explaining its order, the lower court states that “[w]hen the wife [appellant] appropriated all of these monies for her own use, she invited a Vento partition [referring to Vento v. Vento, 256 Pa.Super. 91, 389 A.2d 615 (1978) ].” Slip op. at 2. The court goes on to hold that the funds arising from the settlement of the trespass action—the funds appropriated by appellant—were “marital property” within the meaning of the new Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 101 et seq, 23 P.S. § 101 et seq (1982), and were therefore subject to being equitably divided between the parties incident to a decree divorcing them. 23 P.S. § 401(d) and (e). However, the court states, “It is the opinion of this court that the Vento doctrine is still viable, and that the Divorce Code of 1980 has not rendered it moot. By her conduct in this case, the wife may have forfeited her right to equitable distribution, and her rights may be relegated to one equal division of the property under Vento.” Slip op. at 2.

-1-

Appellant’s first argument is that the lower court erred in characterizing the settlement proceeds as marital property within the meaning of Section 401(e) of the Divorce Code.

Section 401(f) of the Code provides:

All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

Therefore, since the settlement proceeds were “acquired ... during the marriage,” they are “marital property” unless they were “acquired by a method listed in subsection (e).”

Appellant argues that the settlement proceeds were acquired by a method listed in Section 401(e), specifically, she says that they were “[pjroperty acquired in exchange for property acquired prior to the marriage ____” 23 P.S. § 401(e)(1). The question is thus presented whether one’s physical well-being constitutes “property acquired prior to the marriage____” We conclude that it does not.

In construing the phrase, “property acquired prior to the marriage____,” we look to the everyday, popular meaning of those words. Treaster v. Union Township, 430 Pa. 223, 242 A.2d 252 (1968); Wheatcroft v. Auritt, 226 Pa.Super. 118, 312 A.2d 441 (1973); 1 Pa.C.S.A. § 1903(a). Suppose one were to lose a leg in an accident, and, in settlement of the claim, receive $100,000. One would not in everyday speech say that the $100,000 was “[property acquired in exchange for property [the lost leg] acquired prior to [one’s] marriage____”

The legislative history of the Divorce Code of 1980 also persuades us that in defining “marital property,” the Legislature did not intend to except the proceeds of the settlement of a personal injury claim. The House version of Section 401(e) did except settlement proceeds. In defining “marital property,” it excepted “[property acquired with, or received in exchange for property acquired with .... payments received as payment for the loss of impairment of parts or functions of the body of the party who received the payment.” Hearings on H.B. 640 Before The Pennsylvania House of Representatives, 1979 Pa.Leg.J. 1968. However, the House version also excepted from marital property “property acquired in exchange for property acquired prior to the marriage____” It is therefore clear that the House did not intend this latter section to except settlement proceeds from marital property, for then there would have been no need for the former section. See In re Dorrance’s Will, 333 Pa. 162, 3 A.2d 682 (1939); Macfarland v. Unemployment Compensation Board of Review, 158 Pa.Super. 418, 45 A.2d 423 (1946); Appeal of Dixon, 138 Pa.Super. 385, 11 A.2d 169 (1940).

A further feature of the legislative history confirms this conclusion. This is that the Senate rejected the House version. Hearings on H.B. 640 Before the Pennsylvania Senate, 1980 Pa.Leg.J. 1364-65. Although the House wanted to except from marital property both settlement proceeds and “property acquired prior to marriage,” the Senate wanted to except only “property acquired prior to marriage.” As enacted, the Divorce Code reflects the Senate’s view. It follows that settlement proceeds are not excepted from marital property. McDowell v. Good Chevrolet-Cadillac, Inc., 397 Pa. 237, 154 A.2d 497 (1959) (failure to enact proposed amendment to act held significant in construing act).

-2-

Appellant’s next argument is that she was denied due process of law because the lower court did not permit her to present evidence in support of her argument that the settlement proceeds were not marital but her separate property. This argument is without merit. Since the conclusion that the settlement proceeds are marital property follows from the undisputed fact that the proceeds were acquired during the parties’ marriage, no evidence that appellant could have presented would have warranted the conclusion that the proceeds were her separate property. It was therefore not error for the lower court to preclude appellant from presenting evidence.

-3-

Appellant’s last argument is that the lower court erred in directing partition of a portion—$20,000—of the settlement proceeds. We agree.

Section 301 of the Divorce Code provides that “in conjunction with any decree granting a divorce,” the court shall “determin[e] and dispos[e] of property rights and interests between spouses, ... including the partition of property held as tenants by the entireties or otherwise____” 23 P.S. § 301(a)(1). However, Section 401 of the Code provides that if the property is “marital property,” “the court shall, upon request of either party, equitably divide, distribute or assign” the property between the parties “without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including [ten enumerated factors, illustrative of which are the length of the marriage, the age, health, and skills of each party, the contribution of each party to the acquisition of the marital property, and so on].” 23 P.S. § 401(d).

It is apparent, therefore, that the court’s power to direct a partition of property is qualified by its duty to divide marital property in an equitable way. If the property is not marital property, the court may direct its partition. But if it is marital property, the court must instead, upon request of either party, direct its equitable division. The result may well be different. For partition is an even division. Vento v. Vento, supra. But an equitable division often will not be even; the essence of the concept of an equitable division is that “after considering all relevant factors,” the court may “deem[] just” a division that awards one of the parties more than half, perhaps the lion’s share, of the property.

Here, as we have explained above, the property in question—the proceeds of the settlement—is marital property. It was therefore the lower court’s responsibility to decide upon an equitable division of the proceeds. In directing their partition instead, the lower court erred.

The lower court justified its order of partition by expressing “the opinion ... that the Vento doctrine is still viable, and that the Divorce Code of 1980 has not rendered it moot.” Slip op. at 2. If the property in question is not “marital property,” as that term is defined by the Divorce Code, then the Vento doctrine is indeed still viable. If the joint tenants are not husband and wife, Vento will apply. Vento v. Vento, supra, 256 Pa.Superior Ct. at 94 n. 3, 389 A.2d at 617 n. 3. Even if the joint tenants are husband and wife, Vento will still apply if the property is the separate property of one of them. But if the property is marital property, Vento has no application.

The lower court also expressed the opinion that “[b]y her conduct in this case [in appropriating the settlement proceeds], [appellant] may have forfeited her right to equitable distribution, and her rights may be relegated to an equal division of the property under Vento.” Slip op. at 2. However, as we have just explained, Vento has no application where the property in question is marital property. Nor does the concept of forfeiture have any application. In deciding upon an equitable division of marital property, the court must act “without regard to marital misconduct.” 23 P.S. § 401(d).

Accordingly, the lower court should not have directed that $20,000 of the some $54,000 of settlement proceeds be partitioned between the parties. Instead, the court should have determined what represented an equitable division of all of the settlement proceeds.

The order of the lower court directing partition is vacated and the case is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

      . Both the Oct. 10 order and the October 20 order are interlocutory, and appellee has filed a motion to quash the appeal. Since the Oct. 10 order directs partition, however, it is appealable. Pa.R.A.P. 311(a)(6) (appeal may be taken as of right from an order directing partition). On March 9, 1981, appellee’s motion to quash was therefore denied. Appellant has argued that the Oct. 10 order is also appealable because it granted appellee’s petition for an injunction. See Pa.R.A.P. 311(a)(4) (appeal may be taken as of right from an order granting an injunction). Appellee has responded to this argument by saying that the order does appellant no irreparable harm but only maintains the status quo pending the lower court’s final decision regarding how the parties’ property should be divided incident to their divorce. As just noted, however, in fact the order does not maintain the status quo, for it directs partition, albeit of only part of the fund. We therefore do not need to decide whether the order would be appealable if it were only an injunction.
      With respect to the Oct. 20 order dismissing appellant’s preliminary objections: It is not an appealable order. However, we see no need to enter an order quashing an appeal from it. Although appellant says that her appeal is from both the Oct. 10 order and the Oct. 20 order, it is not apparent how one appeal can be taken from two orders. We shall therefore regard the appeal before us as from the Oct. 10 order only. This will do no violence to the parties’ contentions, for the issues raised by both orders are the same, and in deciding the validity of the Oct. 10 order directing partition, we shall necessarily by implication decide the validity of the Oct. 20 order dismissing appellant’s preliminary objections.

      . As indicated above, an order to this effect was not entered until Oct. 20.

      . The court found this amount to be $54,807.29. No issue has been raised in argument to us regarding the discrepancy between this finding and counsel’s statement at the hearing that the amount was $53,807.29.

      . The court explained, at the conclusion of the hearing, that it regarded its order directing only a partial equal division of the settlement proceeds—$10,000 to each party—as an “interim order,” entered in the hope that the parties could "resolve [their] differences.” R. 38.

      . Appellant refers us to statements made in legislative debate in support of her argument that rejection of the House version does not manifest the intention that settlement funds should not be excepted from marital property. However, while committee and commission reports are an aid to construing a statute, statements made in debate are not. See Phila. v. Phillips, 179 Pa.Super. 87, 116 A.2d 243 (1955); Lenhart v. Cambria County, 29 Pa.Super. 350 (1905), aff’d, 216 Pa. 25, 64 A. 876 (1906).

      . Had there not been an undisputed fact from which the conclusion that the settlement proceeds were marital property followed, appellant would, of course, have been entitled to introduce evidence to rebut the presumption that the proceeds were marital. 23 P.S. § 401(f) ("The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e)”.) (Emphasis added.)


author: HESTER, Judge:

text:
    454 A.2d 1063
    COMMONWEALTH of Pennsylvania v. Paul PAYNE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Sept. 9, 1983.

      Paul R. Gettleman, Zelienople, for appellant.
    Dara A. DeCourcy, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   HESTER, Judge:

Appellant was arrested on March 12, 1980, and charged with criminal homicide and violations of the Uniform Firearms Act. After a four-day trial, the jury returned a verdict of guilty of both third degree murder and the Uniform Firearms Act violations. The trial judge, upon consideration of motions for a new trial and/or in arrest of judgment, arrested judgment on the Uniform Firearms Act violations, but denied the motions as to the murder conviction. Appellant was thereafter sentenced to a term of imprisonment of not less than seven nor more than eighteen years incarceration.

On this direct appeal, appellant raises but one issue for our review: the alleged ineffectiveness of trial counsel. After close examination of appellant’s arguments and the record itself, we hereby deny the relief requested.

In order to properly analyze appellant’s argument, it is necessary to reconstruct the events surrounding the crime which appellant admittedly committed. On March 6, 1980, at approximately 11:40 p.m., appellant was sitting at the bar of the Sumpter Hotel in Clairton, Pennsylvania. The victim, Duffy Dreher, entered the bar with two friends, Harry Lueckert and Henry Armstrong. Lueckert had previously threatened appellant’s brother, who was married to Lueckert’s sister. The victim and his friends were playing pinball when appellant approached and began arguing with Lueckert. The victim attempted to intercede and appellant began arguing with him. Eventually the victim walked away. However, appellant followed him, drew a weapon, and when the victim turned around, shot him in the right eye at close range. Duffy Dreher died immediately.

Appellant is represented on appeal by new counsel and instantly alleges the ineffectiveness of trial counsel in three regards: 1) counsel failed to subpeona a material witness, 2) counsel failed to demand that the jury deliberations end for the night, and 3) counsel failed to object to certain remarks of the prosecuting attorney in his closing argument.

The test for establishing the ineffectiveness of counsel, firmly settled in this Commonwealth, was promulgated by the Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

“our inquiry ceases, and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” (Emphasis in original).

Id., 427 Pa. at 604, 235 A.2d at 352. With respect to appellant’s first claim, we must decide if counsel’s failure to call a certain witness to testify at trial had a reasonable basis.

Appellant contends that his actions on the evening of March 6, 1980, constituted self-defense. Prior to that day, appellant had been involved with a group of people from Pittsburgh who had severely beaten him. In an effort to avoid any further confrontations, appellant moved to Clair-ton to live with his father. Both appellant’s father and sister testified that the family home had been watched and that the victim had knocked and asked for appellant on several occasions while refusing to state his purpose. Further, appellant had seen Lueckert and the victim in the company of some of the individuals from Pittsburgh who had been involved with appellant previously. Finally, appellant believed that there was a contract out on his life and so informed his father. Appellant’s father met with the police chief of Clairton to express his concern and apprehension for his son in light of the surrounding circumstances.

Appellant submits that he requested trial counsel to subpoena this impartial witness, the police chief, so as to bolster the above testimony of appellant and his father, that various individuals were believed to pose a threat to appellant’s safety. Such testimony would tend to substantiate appellant’s state of mind which, in turn, would support appellant’s argument that he acted in what he believed to be self-defense.

In evaluating the effectiveness of trial counsel’s representation, the Supreme Court has held on numerous occasions that failure to call a witness whose testimony would have assisted to the defense constitutes ineffective assistance of counsel, absent a reasonable basis for counsel’s decision. Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166 (1978); Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1975); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). See also Commonwealth v. McFarland, 304 Pa.Super. 470, 450 A.2d 1008 (1982); Commonwealth v. Burrell, 286 Pa. Super. 502, 429 A.2d 434 (1981); Commonwealth v. Williams, 273 Pa.Super. 147, 416 A.2d 1132 (1979). However, appellant must be able to demonstrate how the testimony would have been helpful to the defense. Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977).

It is clear that the testimony of the Clairton police chief would not have aided the defense. Appellant does not contend that the witness had first hand knowledge of any of the events preceding the shooting. At best, he could only relate what was told to him by appellant’s father, and the majority of that testimony would be objectionable as hearsay. Moreover, the fact that the chief refused to take any action based upon the observations of appellant’s father indicates that the police officer did not place much credence in his story. Consequently, it is unlikely that his appearance as a witness would have enhanced the credibility of appellant’s father. Finally, because the chief did not speak to appellant, he would not be able to testify as to appellant’s state of mind. Since his appearance would not have contributed to appellant’s defense, counsel will not be deemed ineffective for failing to introduce it. Commonwealth v. Burrell, supra; Commonwealth v. Rainey, 282 Pa.Super. 15, 422 A.2d 652 (1980); Commonwealth v. Nero, 250 Pa.Super. 17, 378 A.2d 430 (1977).

Secondly, appellant contends that the trial judge coerced a verdict from the jury and that counsel was ineffective for failing to object. Specifically, he argues counsel should have excepted to the judge’s unsolicited “Allen” charge and his refusal to end jury deliberations.

At the end of the trial, the jurors retired to begin deliberations at 12:25 p.m. They ate lunch from 1:45 p.m. to 2:15 p.m. At 3:15 p.m., the jury returned with a question and received additional instructions on the criminal homicide charge. From 6:15 p.m. until 8:15 p.m., the jury ate dinner. At 10:05 p.m., the tipstaff was informed by the jury that it was unlikely that a decision would be reached that night. The judge recalled the jury at 10:53 p.m. and asked if a verdict had been reached. When the foreman responded in the negative, the judge charged:

THE COURT: “The Court had previously indicated to you the significance and importance of the case, both to the Commonwealth and to Defense. At this point we would like to say to you that we’re sure that you’ve been endeavoring to arrive at a unanimous verdict. That is your responsibility as jurors, if you can do so. You have a duty of course to consult with each other and to deliberate with a view towards reaching an agreement if it can be done without doing any violence to your individual judgment. However, each of you must decide the case for himself or herself, but only after there has been impartial consideration with your fellow jurors. During the course of deliberations each juror should not hesitate to reexamine his or his own views and change his or her opinion if convinced it is erroneous. However, you’re not expected and no juror should surrender an honest conviction as to the weight or the effect of the evidence solely because of the opinion of his or her fellow jurors for the mere purpose of returning a verdict.
At this point, in consideration of the nature of the case, the charges, the length of trial, the Court is going to ask you to return to the jury room to continue further your deliberations. Thank you for your consideration. You’re now excused.”

Although the judge assured counsel that he would terminate the jury deliberations at 11:45 p.m., the jury continued until it reached a verdict at 1:22 a.m.

Initially, we must note that the judge’s added instructions to the jury were consistent with the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 5.4(a) (Approved Draft, 1968) which were specifically approved by the Supreme Court in Commonwealth v. Spencer, 442 Pa. 328, 337, 275 A.2d 299, 304 (1971). His guidance to them was not in any way subject to the inherent deficiencies of an “Allen” charge, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), where minority jurors are encouraged to defer to majority jurors. Rather, he directed all jurors to consult with each other in reaching a just result. Since there would have been no merit to any objection to this charge, counsel was not ineffective for failing to do so. Commonwealth v. Shaffer, 303 Pa.Super. 259, 449 A.2d 677 (1982).

Similarly, we do not find the length of the jury deliberations to be so coercive or unreasonable as to warrant an objection by trial counsel. It is well-established that “ ‘[t]he length of the deliberation is wisely left to the sound discretion of the trial judge, and we reverse only if we find ... abuse of discretion, or that the verdict was the product of coercion or of an overworked and fatigued jury.’ ” Commonwealth v. Ford, 451 Pa. 81, 85, 301 A.2d 856, 858 (1973), quoting Commonwealth v. Campbell, 445 Pa. 488, 495-6, 284 A.2d 798, 801 (1971). See also, Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977).

Although it was early in the morning when the verdict was reached, the jurors had enjoyed a late dinner only concluding their meal at 8:15 p.m. Moreover, we will not look only at the amount of time spent in deliberations in seeking to determine if the jury felt coerced. We must also examine the actions of the jurors to discern if they were aware other options were available to them. In the case at bar, the jury had earlier in the day posed a question to the court. Thus, the jurors were clearly cognizant of their ability to communicate their concerns to the judge. Moreover, they were informed that accomodations could be arranged for them should they wish to suspend deliberations. Finally, the foreman did not make any such request when the jury was reconvened at 10:53 p.m. We can only conclude that the jury wished to continue its discussion in order to reach a verdict as soon as practicable. Under these circumstances, counsel was not ineffective for failing to demand that deliberations be terminated for the night. Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980).

Appellant’s last argument centers on the assistant district attorney’s closing argument. Ineffectiveness of trial counsel is alleged for failure to object when the prosecutor advised the jury as to what their verdict should be. A review of the record reveals that the attorney for the Commonwealth was arguing that the various elements of each crime were supported by the weight of the evidence. It is certainly within the bounds of proper argument for the prosecutor to contend that the evidence proves the defendant guilty as charged in the indictment. See Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974). Consequently, trial counsel was not ineffective in not voicing baseless objections.

Affirmed.

JOHNSON, J., concurred in the result.

      . Appellant was charged with Criminal Homicide, 18 Pa.C.S.A. § 2501(a), Crimes Committed With Firearms, 18 Pa.C.S.A. § 6103, and Firearms Not to be Carried Without a License, 18 Pa.C.S.A. § 6106.

      . Appellee contends that appellant waived any arguments that trial counsel was ineffective when he failed to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). This rule provides:
      Direction to file statement of matters complained of.
      “If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of."
      Inasmuch as appellate counsel began representing appellant after the disposition of post-verdict motions and the imposition of sentence, the § 1925(b) statement afforded appellant the first opportunity to advance the ineffectiveness of trial counsel.
      In the instant case, Notice of Appeal was filed on May 27, 1981, by appellate counsel. The trial judges ordered that a § 1925(b) statement be filed within twenty (20) days of June 2, 1981. Appellate counsel received an extension of time until October 14, 1981. When appellant still had not filed the § 1925(b) statement, the trial judge filed his opinion in October 26, 1981, addressing those issues raised in the post-trial motions.
      The intent of Pa.R.A.P. § 1925(b) is to aid appellate review by enabling the trial court to focus on those issues which form the basis of the appeal. As the rule indicates, it is within the discretion of the appellate court to determine whether lack of compliance with a § 1925(b) directive constitutes a waiver. The Supreme Court considered this subject recently in Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). Therein, it observed:
      “The waiver provisions of the Rule is properly invoked only where failure to file a statement or omission from a statement of issues raised on appeal defeats effective appellate review."
      Slip opinion at p. 9. See also Commonwealth v. Crowley, 259 Pa.Super. 204, 393 A.2d 789 (1978). Conversely, if the failure to file such a statement does not thwart appellate scrutiny, then the failure should not be regarded as waiver. Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979). Herein, we will review the merits of appellant’s arguments because his failure to comply with the rule does not impede our ability to exercise appellate review. We would like to note, however, that appellate counsel’s failure to provide the trial court with the § 1925(b) statement constituted a direct violation of an Order of Court and reflects a serious lack of regard and respect for the authority and dignity of the trial judge. We can only hope that this was only an oversight by counsel and will not be repeated.


author: CIRILLO, Judge: SPAETH, Judge,

text:
    454 A.2d 1067
    COMMONWEALTH of Pennsylvania v. Miguel RIVERA, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 5, 1982.
    Filed Dec. 30, 1982.

      Peter C. Bowers, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

On November 13, 1974, appellant Miguel Rivera was convicted by a jury of first degree murder, rape and criminal conspiracy. The charges arose out of the rape of Margaret Handerah'an and the murder of Kevin Wolf during the early morning hours of June 27, 1973. These sordid crimes became known throughout the Philadelphia area as the “Art Museum Murder.” Post-verdict motions were filed and denied by the Honorable James T. McDermott, who then sentenced the appellant to a term of life imprisonment for the murder conviction and to a consecutive period of imprisonment of ten to twenty years for the rape conviction. On direct appeal, the Supreme Court of Pennsylvania affirmed the judgment of sentence. Commonwealth v. Rivera, 470 Pa. 131, 367 A.2d 719 (1976).

On October 16, 1976, appellant filed a petition seeking relief pursuant to the provisions of the Post Conviction Hearing Act (hereinafter “PCHA”). After a counseled evidentiary hearing, relief was denied. This is an appeal from that order.

Initially, appellant challenges the propriety of the trial court’s instruction on voluntary manslaughter. Secondly, he contends that the trial court erred in refusing to grant a mistrial after the prosecution read a witness’ statement to the jury which referred, in passing, to appellant as a “junkie.” Appellant raised these claims on direct appeal, and the Supreme Court found them to be without merit. Rivera, 470 Pa. at 138-139, 367 A.2d 719. Therefore, these issues have been finally litigated and are not cognizable in a PCHA proceeding. 19 Pa.S.A. § 1180—3(d); Commonwealth v. Velasquez, 488 Pa. 244, 412 A.2d 489 (1980); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972).

Appellant’s remaining contentions deal with the alleged ineffectiveness of his trial counsel. First, he asserts that counsel was ineffective for failing to call an alibi witness to testify at the trial. Next, he argues that counsel was ineffective for failing to object when the trial court imposed sentence without affording him his allocution rights and without stating its reasons for the sentence. Third, appellant alleges that counsel was ineffective for not objecting to the trial court’s charge regarding accomplice testimony. Finally, appellant contends that counsel was ineffective for failing to file a petition to dismiss charges pursuant to Pa.R.Crim.P. 1100(f).

The standard of review for ineffectiveness of counsel was established in the case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5, 235 A.2d 349, 352-53 (1967), where the Supreme Court stated:

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis, (footnote omitted)

Failure to call an alibi witness does not per se constitute ineffective assistance of counsel. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973); Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979). Ineffectiveness will not be found where there is a reasonable basis for counsel’s decision based on a matter of trial strategy. In addition, the failure to call a possible witness will not be equated with a finding of ineffectiveness absent a positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982).

Appellant contends that trial counsel was ineffective for neglecting to subpoena Nelson Morales whom he alleges could have established an alibi for him on the night of the crime. Morales and a man named “Freddie” had accompanied appellant to the hospital on that night to assist him in obtaining treatment for a knife wound he sustained in a fight with his wife. From the hospital, they went with appellant to the 9th District Police Station at 20th Street and Pennsylvania Avenue. A police officer testified that he saw appellant and two other men leave the police station at approximately 2:45 a.m. Appellant parted company with the others in the vicinity of the Art Museum shortly before the crimes were committed.

Trial counsel testified that he did not call Morales as an alibi witness because he was unable to account for appellant’s whereabouts at the time of the crime. Moreover, Morales’ testimony would only have been cumulative to that of the police officer—that appellant left the police station at 2:45 a.m. in the company of two other men. Therefore, counsel cannot be deemed ineffective for not calling Morales as a witness. See, Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980); Commonwealth v. Olivencia, supra. Compare, Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977). Furthermore, counsel did not want to jeopardize the defense by subjecting Morales to a potentially rigorous cross examination. Under these circumstances, we cannot say that counsel’s judgment on this matter was without reasonable basis. See, Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Owens, supra.

Appellant’s next contention is that he is entitled to a new sentencing proceeding because trial counsel failed to object when he was denied his right to allocution, and when the lower court imposed sentence on the rape conviction without stating its reasons on the record. Both of these claims are without merit. Appellant failed to present any testimony or other evidence at the PCHA hearing on what statement he would have made prior to the imposition of sentence and how this would have benefited him. Appellant’s failure to do this constitutes abandonment of this claim. Stokes, supra. This court is not required to consider claims of ineffective counsel in the abstract. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). The PCHA court’s finding that appellant failed to present evidence showing that he is entitled to relief is supported by the record. Therefore, the finding of the PCHA court will not be disturbed. See, Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981); Commonwealth v. Hauser, 450 Pa. 388, 299 A.2d 218 (1973).

Similarly, appellant’s contention that counsel was ineffective for not requesting on-the-record reasons for the rape sentence must also fail. While Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), now requires such an on-the-record statement, the law at the time of appellant’s sentencing was otherwise. Counsel will not be held ineffective for failing to advance a claim or assert a right unsupported in the law. Commonwealth v. Frankhouser, 491 Pa. 171, 420 A.2d 396 (1980); Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978). “We cannot impose upon trial counsel the qualities of a seer____” Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977).

Appellant’s next contention is that counsel was ineffective for failing to object to the trial court’s jury charge dealing with the evaluation of the testimony of an accomplice that was presented at trial. We have carefully reviewed the trial court’s charge in its entirety and find it to be free from legal error. Therefore, counsel was not ineffective for failing to object to the charge. See, Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969); Commonwealth v. Fodero, 273 Pa.Super. 278, 417 A.2d 648 (1979).

We now turn to appellant’s final contention, that trial counsel was ineffective for failing to file a motion to dismiss under Pa.R.Crim.P. 1100(f).

The Commonwealth contends that the appellant had fully waived his Ruie 1100 rights in his on-the-record colloquy with the trial judge. Appellant, on the other hand, argues that the waiver of his Rule 1100 rights was only for a specified time, until his trial counsel was available, and as such was not an absolute waiver of these rights. We agree with the Commonwealth.

It is well settled in Pennsylvania that counsel will not be deemed ineffective for failing to raise or preserve a meritless claim. Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982); Commonwealth v. Gratkowski, 287 Pa.Super. 492, 430 A.2d 998 (1981); Commonwealth v. Juliano, 282 Pa.Super. 226, 422 A.2d 1088 (1980); Commonwealth v. Foley, 269 Pa.Super. 71, 409 A.2d 68 (1979); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971). We must confine our examination of counsel’s actions to the standards as they existed at the time of his actions. Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973) (emphasis supplied). Since the standards which existed at the time trial counsel decided not to file a motion under Rule 1100(f) did not limit waivers of Rule 1100 rights to a specific period of time, Commonwealth v. Coleman, supra, then we cannot hold counsel ineffective for concluding that any future claims by the appellant under Rule 1100 would be both futile and meritless.

Appellant also urges that the Commonwealth has not met its burden of proving the validity of the waiver. Commonwealth v. Dunbar, 301 Pa.Super. 223, 447 A.2d 622 (1982). Since we conclude that the record and arguments of the Commonwealth are sufficient to meet this requirement, we need not address this contention any further.

Lastly, appellant contends that he should be afforded relief since he has raised a cognizable claim under PCHA § 1180-3(c)(12).

It is uncontroverted that Rule 1100 claims are cognizable under PCHA. See e.g., Commonwealth v. Gratkowski, supra; Commonwealth v. Juliano, supra; Commonwealth v. Foley, supra. However, since we have already concluded that appellant had validly and effectively waived his Rule 1100 rights, such waiver has effectively precluded him from raising a Rule 1100 claim under the Post Conviction Hearing Act. Consequently, appellant is not entitled to any relief under its provisions.

Order affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

Appellant has filed a petition for remand, claiming after-discovered evidence, and the Commonwealth has joined in the petition. With its opinion filed today the majority has filed an order denying the petition for remand, without prejudice to appellant’s right to file a second petition for post-conviction relief “containing claims that have not been waived by failure to raise them in his first PCHA petition.” I should instead grant the petition for remand, with a provision in the order of remand that should appellant be denied relief on his after-discovered evidence claims, he could on appeal from that denial renew the arguments that he has made on this appeal. See Commonwealth v. Santiago, 306 Pa.Super. 176, 452 A.2d 272 (1982) (remanded 11/5/82).

The case should be remanded for further proceedings consistent with this opinion.

      . Justice Pomeroy authored the Opinion. Justices Eagen, O’Brien and Nix concurred in the result. Justice Manderino wrote a Dissenting Opinion in which Justice Roberts joined. The general facts of the case,'which are not provided in the Rivera Opinion, can be found in Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978).

      . Act of January 25, 1966, P.L. (1965) 1580, § 1, 19 Pa.S.A. § 1180-1 et seq.

      . Appellant contends that his claims have not been fully and finally litigated because there was no majority opinion in Rivera. We disagree. When the decision of the Supreme Court is from an equally divided court, for the purposes of a PCHA, the issues are not fully and finally litigated. See, Commonwealth v. Holly, 483 Pa. 371, 396 A.2d 1215 (1979). However, in Rivera, Justice Pomeroy wrote the Opinion; three Justices concurred in the result; and two Justices dissented. Therefore, as to the appellant, these issues were fully and finally litigated.

      . Appellant does not allege that counsel failed to interview the witness or conduct a thorough investigation. In fact, counsel did interview Morales and hired a private investigator to assist in the investigation. Compare, Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976).

      . Appellant makes the same ineffectiveness claim for trial counsel’s failure to call "Freddie” as a witness at trial. "Freddie,” however, was not produced at the hearing below. Thus, appellant has failed to sustain his burden of proving counsel’s ineffectiveness on this issue. See, Commonwealth v. Robinson, 496 Pa. 421, 437 A.2d 945 (1981); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982).

      . Appellant does not raise this claim with respect to his first degree murder conviction which was punishable by a mandatory life sentence. Act of June 24, 1939, P.L. 872, § 701; Act of December 1, 1959, P.L. 1621, § 1. 18 Pa.S.A. § 4701, repealed, Act of December 6, 1972, P.L. 1482, No. 334, § 5.

      . At the time the continuance proceedings took place, on March 28, 1974, there was neither any requirement under Rule 1100 nor any case law in Pennsylvania standing for the proposition that a waiver could only be given effect for a limited period of time. See, Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978); See also, Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975). Although the Supreme Court has recently established that trial continuances can only be granted for a specified period of time, such a requirement is only afforded prospective application. Commonwealth v. Coleman, supra.

      . 19 P.S. § 1180-3(c)(12) states, in part, that a person should be afforded relief under the Act if his conviction was the result of "... any abridgement ... of any right guaranteed by the constitution or laws of this state or the constitution or laws of the United States.”