author: SPAETH, Judge: CAVANAUGH, Judge,

text:
    447 A.2d 617
    COMMONWEALTH of Pennsylvania ex rel. Joanne BUCHAKJIAN, v. Leon BUCHAKJIAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 6, 1981.
    Filed April 30, 1982.
    Reargument Denied July 26, 1982.

      Saul Levitt, Philadelphia, for appellant.
    Stanley R. Kotzen, Media, for appellee.
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order directing a husband to support his wife and children. The husband argues that the lower court erred in admitting and considering hearsay evidence. We agree and therefore reverse and remand for a new hearing.

Leon and Joanne Buchakjian were married on June 10, 1956, and separated on November 13, 1978. They have three children: Maria, born April 19, 1959; Levon, born April 7, 1961; and Charles, born June 20, 1964. On January 4, 1979, the lower court, with the agreement of the parties, entered an order directing the husband to pay $300 a week to support his wife and the three children. On June 28, 1979, the husband filed a petition to reduce the order, alleging that since the time of the order, “Petitioner’s heating oil business has declined drastically and Petitioner has experienced a substantial loss of income,” and that his son Levon had reached the age of 18. The wife filed an answer and a cross-petition to increase the order, alleging that the husband’s earnings and her expenses and the children’s had increased. On December 6, 1979, the lower court held a hearing, and on January 23, 1980, it entered an order reducing the original order; the husband was directed to pay $250 a week to support his wife and his children Maria and Charles, and Levon was removed from the original order. The court also denied the wife’s cross-petition to increase support. The husband has appealed.

We will not disturb the lower court’s decision on a petition to reduce support unless the court has abused its discretion. Commonwealth ex rel. Jeske v. Jeske, 283 Pa.Superior Ct. 209, 423 A.2d 1063 (1981); Berry v. Berry, 278 Pa.Superior Ct. 30, 419 A.2d 1340 (1980); Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Superior Ct. 122, 403 A.2d 124 (1979). An abuse of discretion occurs where the lower court misapplies existing law, makes a manifestly unreasonable judgment, or rules with partiality, prejudice or ill will. Straub v. Tyahla, 274 Pa.Superior Ct. 411, 418 A.2d 472 (1980). The husband argues that the lower court committed an abuse of discretion in that it misapplied existing law by admitting over objection and considering hearsay testimony by the wife and her expert witness.

In support of his petition to reduce support, the husband testified that his business had lost customers because they had switched from oil to gas. N.T. 12/6/79, 23. He also testified that he had voluntarily dropped some customers because it became too expensive to deliver oil to outlying areas, id; some of these customers included “churches and theaters and volume accounts that have large tanks,” id 26. The wife then testified as follows:

BY MR. KOTZEN [counsel for the wife]:

Q. Did you have any conversations with customers who have no longer purchased oil from Leon’s Heat and Fuel?

A. Yes, I have.

Q. And they were quite—

MR. LEVIT [counsel for the husband]: (interposing) Objection.

THE COURT: I will overrule your objection ....
******
THE WITNESS: I received quite a few phone calls from customers that my husband dropped as he states, because the distance is too far. One of them particularly is the Armenian Martyrs’ Church, which is in Drexel Hill and our business is in Drexel Hill. That was dropped for no reason at all.
******

Q. Give me names and dates and places and people?

MR. LEVIT: May I have a standing objection to the hearsay?

THE COURT: You have a standing objection and the purpose of this testimony, she as a part owner is endeavoring to present evidence to show the reduction of business of this enterprise was partially due to his responsibility and for that reason the Court is permitting it.

MR. KOTZEN: Names and places of customers of Leon’s Heat and Fuel who no longer are customers of Leon’s Heat and Fuel, date, time and place.

‡ # $ Sic * *

A. First of all the two churches that were dropped, Saint Church in Wynnewood, Pennsylvania, which is only a stone’s throw from our home for no reason at all.

Q. Who did you speak to there?

A. They pay their bills.

MR. LEVIT: Objection. He asked a question who she spoke to.

THE WITNESS: You didn’t give me a chance.

THE COURT: Let her answer the question. Do you object to all this testimony and I grant you an exception. You have an exception to her testimony with reference to referring to certain accounts which she alleges were part of the business and which he of his own volition dropped from his account. That is the purpose. I grant you art exception.

MR. LEVIT: Then I will stop hopping up and down.

THE COURT: You may hop up and down whenever you want.

THE WITNESS: May I start?

BY MR. KOTZEN:

Q. I think so.

A. The Saint Sahab Armenian Church, Wynnewood, Pennsylvania. Then the President of the Council, Mr.

Q. Who you spoke with?

A. That’s correct. Secondly, Rev. from the Saint Armenian Martyr Church.

Q. Where is that located?

A. Drexel Hill.

Q. Is that within a close line?

A. Only a few minutes from our home.

Q. How long have they been customers?

A. For six or seven years.

Q. Were they paying?

A. Good paying customers. I spoke to the then minister of the church in Drexel Hill, the Armenian Martyr, Rev. who was quite disturbed because that was my husband’s church.

Q. What other customers, if any, contacted you or you had contacted?

A. Actually they called me. There was a Mr. Blavakus who called me one morning at six o’clock, because they had no oil and my husband refused to deliver the oil and they live right in Broomall.

Q. When did Mr. Buchakjian drop these church accounts?

A. He dropped them right after we started having problems in our home, before I left the home.

BY MR. KOTZEN: Do you know of any other accounts that were terminated by Leon?

MR. LEVIT: Objection to the word terminated. The accounts are no longer there.

BY MR. KOTZEN:

Q. Accounts no longer there?

A. Yes, there is a Manujian, in Media, not far from here which is only a fifteen minute ride from our place of business. There is a Noraugus, all good paying customers. If I look at the list, I can tell you the ones that are good customers, that said it was too far away for him to deliver. They were all good customers. Noraugus called me himself and met me in church one day and was disturbed. It made him feel very bad. He said he never did anything wrong to Leon. In fact he ran out of oil one day and he believed—

MR. LEVIT: (interposing) Objection to what he believed. N.T. 12/6/79, 107-114.

Hearsay has been defined as “a statement made out of court, the statement being offered to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” McCormick, Evidence § 246 (2d ed. 1972), cited with approval, Commonwealth v. Landy, 240 Pa.Superior Ct. 458, 465-66, 362 A.2d 999, 1002-3 (1976). The wife’s testimony was without doubt hearsay—nor does she argue otherwise. She testified to what others who were not in court had said to her: that two customers had said that the husband had dropped them “for no reason at all,” N.T. 110-11; that another had said he had been dropped although “he never did anything wrong to [the husband]”, N.T. 114; and that another had said that the husband “refused to deliver the oil,” N.T. 112. (This last was double hearsay: the wife saying what the customer said the husband said.) That this testimony was offered for the truth of the matter asserted is beyond doubt, for it was relevant only to rebut the husband’s testimony that the customers had dropped him as a supplier, and to support the wife’s claim that the husband’s business had not declined but instead he had voluntarily and in bad faith reduced it. Furthermore, the lower court, even though it overruled counsel’s persistent hearsay objections, understood that the testimony was offered for the truth, stating, for example, “You have an exception to her testimony with reference to referring to certain accounts which she alleges were part of the business and which he of his own volition dropped from his account. That is the purpose.” N.T. 111. See also N.T. at 107-08, 109, 110, 111, 113.

Similarly, the lower court admitted, over objection, the testimony of the wife’s expert witness, an accountant. The accountant testified that one of the husband’s suppliers, Mr. Mecke of Gulf Oil Company, had told him over the telephone the number of gallons of oil that Gulf had sold the husband in 1978. N.T. 158-64. This testimony was offered to rebut the husband’s testimony that his income for 1978 was $30,000. Id. 76. As explained by the wife’s counsel:

What he is going to tell the Court, he analyzed the 1978 return and based upon the information he received from Gulf and the information that Mr. Buchakjian testified today, that Mr. Buchakjian understated his income for ’78. N.T. 161.

As with the wife’s testimony, the accountant’s testimony was hearsay, and not admissible under any exception to the hearsay rule. See Matter of Franklin Township Board of Supervisors, 475 Pa. 65, 379 A.2d 874 (1977); Carswell v. Southeastern Pennsylvania Transportation Authority, 259 Pa.Superior Ct. 167, 393 A.2d 770 (1978); Commonwealth v. Landy, supra; Eller v. Work, 233 Pa.Superior Ct. 186, 336 A.2d 645 (1975).

In its opinion filed in response to the husband’s appeal, the lower court did not address the question of whether the wife’s and the accountant’s testimony had been properly admitted. Instead the court said:

The defendant [husband] contends that the Court erred in admitting certain hearsay testimony of the relatrix [wife] and her expert witness. This testimony was presented for the purpose of supporting the relatrix’s petition for an increase in the support order. The Court does not address itself to this contention because this testimony was not considered in connection with the defendant’s petition, and the Court dismissed the relatrix’s petition.
Slip op. at 7.

We find ourselves unable to accept this disposition, for two reasons.

First, the record shows that the wife’s and accountant’s hearsay testimony was not presented only incident to the wife’s petition for an increase in support. Both the husband’s petition to reduce and the wife’s petition to increase were heard as presenting a single issue. When counsel stated, “I am not sure which Petition we are proceeding on first,” the court replied: “It is all one set of facts, same husband, same failure to comply, same Petition to Reduce. Call it by what name you will.” N.T. 9. Moreover, the testimony did not go to show that the wife’s and children’s expenses had increased—which would have been relevant to the wife’s petition to increase—but to show that any decrease in the husband’s business was due to his bad faith— which was relevant to the husband’s petition to reduce.

Second, from other parts of the court’s opinion it is apparent that despite its disclaimer, the court did consider the hearsay testimony in ruling upon the husband’s petition. After stating the issues before it, the court says:

The facts before this Court demonstrate that the defendant has not met his burden in proving the existence of material and substantial changes in circumstances since the entry of the original support order, except for the fact that Levon has been regularly employed as of November 22, 1979. Although the son Levon became eighteen years of age since the original order, he still continued as a student and was therefore entitled to support until he left school and became employed as of November 22, 1979. It is to be noted that Levon left school because the defendant gave him a job in his business. This Court treats this employment offer as having been made in good faith, and not for litigation purposes. Therefore, solely for this reason, Levon was removed from the support order as of November 22, 1979 and the order was reduced and the defendant was directed to pay the sum of $250.00 per week for the support of wife and the two children, Marie and Charles.
Slip op. at 3 -4.

It is therefore evident that the court entirely discounted the husband’s testimony regarding a loss of business. Indeed, later in its opinion the court says as much:

It is undisputed that a spouse cannot intentionally reduce his actual earnings, and then use the reduction in earnings to obtain a reduction in the amount of support he must provide for his family. Weiser v. Weiser, 238 Pa.Super. 488 [362 A.2d 287] (1976). Courts have traditionally reviewed with suspicion any sudden reduction of support payments based on diminished income. This is especially so when the defendant is in business for himself. Comm. ex rel Goichman [v. Goichman, 226 Pa.Super. 311, 316 A.2d 653] supra. In the instant case, the Court properly took into account all of the pertinent factors in determining that there was no material or substantial change in the defendant’s financial status to warrant a further reduction of the support order.
The Court not only views with suspicion defendant’s alleged reduction in income from the business, but is also seriously concerned about defendant’s credibility. See Comm. ex rel Arena v. Arena, 205 Pa.Super. 76 [207 A.2d 925] (1965). After observing the defendant and the manner in which he testified, the Court is of the opinion that the defendant in this case was less than forthright and that he was not a totally credible witness.
Slip op. at 6-7.

We have no doubt that in thus assessing the husband’s credibility, the court was necessarily influenced by the wife’s and accountant’s hearsay testimony. Not only was the testimony offered to impeach the husband’s credibility, but it was admitted by the court for that very purpose.

Often an erroneous evidentiary ruling will not require reversal. But where, as here, erroneously admitted evidence goes to the heart of the issue, we must reverse and remand for another hearing. We intimate nothing as to what the outcome on remand should be. We only hold that a hearing must be conducted in accordance with settled law. If the husband has voluntarily reduced his business and manipulated his books, the wife may prove it, by competent evidence.

The order of the lower court is reversed and the case remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Any further appeal must be by appeal from such order as the lower court enters after further proceedings.

CAVANAUGH, J., files a dissenting statement.

CAVANAUGH, Judge,

dissenting:

I would affirm the order of the court below. As the majority has pointed out, we will not reverse the decision of the lower court on a petition to reduce support in the absence of an abuse of discretion. I can find no such abuse. The majority reverses on the grounds that the court below erred in admitting hearsay evidence in connection with the wife’s testimony and that of her expert witness. In dealing with this the court below stated:

The defendant contends that the Court erred in admitting certain hearsay testimony of the relatrix and her expert witness. This testimony was presented for the purpose of supporting the relatrix’s petition for an increase in the support order. The Court does not address itself to this contention because this testimony was not considered in connection with the defendant’s petition, and the Court dismissed the relatrix’s petition.

The majority is not satisfied with this, however, and feels that the court was influenced by the hearsay despite its statement to the contrary.

Further, the majority would place the burden of proof on the wrong party in the case of a petition to reduce support. The burden of proving that circumstances have changed is upon the party petitioning the court to reduce a support order, in this case the husband. Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974). Yet the majority states “if the husband has voluntarily reduced his business and manipulated his books, the wife may prove it, by competent evidence.” In my opinion, the wife has no duty to prove anything in connection with the husband’s petition to reduce support.

      . The husband makes other arguments, but we find it unnecessary to consider them.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    447 A.2d 622
    COMMONWEALTH of Pennsylvania v. John DUNBAR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 5, 1981.
    Filed May 21, 1982.
    Reargument Denied Aug. 2, 1982.
    Petition for Allowance of Appeal Granted Oct. 4, 1982.

      Louis Lipschitz, Philadelphia, for appellant.
    Garold Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

This appeal arises from the denial of appellant’s Post Conviction Hearing Act (hereinafter PCHA) petition alleging the denial of his Pa.R.Crim.P. 1100 rights and the ineffectiveness of trial counsel in failing to file a motion to dismiss. For the following reasons, we reverse the order of the lower court.

Appellant was charged with manufacturing, delivering or possessing a controlled substance with an intent to deliver, and possession of an instrument of crime on August 28,1974. His trial took place on February 3, 1976, or 524 days later. Rule 1100 mandates that trial should have commenced no more than 180 days after the criminal complaint was filed. The mandated 180 day period does not include, however, those periods of time which are excludable, or those which validly result from a petition for extension of time by the Commonwealth.

The Commonwealth argues that the Rule 1100 claim should not be cognizable under the Post Conviction Hearing Act. This court and our Supreme Court have clearly enunciated that Rule 1100 claims may be raised in the PCHA court when extraordinary circumstances, such as ineffective assistance of counsel, are alleged. Commonwealth v. Von Smith, 486 Pa. 564, 406 A.2d 1034 (1979); Commonwealth v. Juliano, 282 Pa.Super. 226, 422 A.2d 1088 (1980); and, Commonwealth v. Webb, 278 Pa.Super. 599, 420 A.2d 703 (1980). The Rule 1100 issue was, therefore, properly before the lower court, and is properly before us, as appellant alleges that his trial counsel was ineffective in failing to file a motion to dismiss under Rule 1100(f).

In order to preserve a Rule 1100 claim for appellate review, a timely motion to dismiss pursuant to the Rule must be made prior to the first substantial step in the trial. See, Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977). A suppression hearing is not such a substantial step, Commonwealth v. Byrd, 493 Pa. 178, 425 A.2d 722 (1981), unless the hearing of the motion was specifically reserved for the time of trial. Pa.R.Crim.P. 1100, Comment. There being no dispute as to the fact that the hearing on the motion herein was reserved for the time of trial, our calculations are based upon the suppression hearing date, or February 2, 1976.

A review of the record reveals several periods of time which are excludable under Rule 1100(d). On January 31, 1975, the case was continued to April 4, 1975, due to the unavailability of appellant’s counsel. The case was again continued on April 4th until May 5th for the same reason. These two continuances result in a total of 94 days which are excludable under Rule 1100(d)(1). Commonwealth v. Warner, 269 Pa. Super. 1, 409 A.2d 33 (1979). The unavailability of appellant’s attorney also resulted in the following excludable periods of time: June 11, 1975 until August 11th (61 days); August 19th until September 23rd (35 days); and, September 23rd until October 30th (37 days). These three periods result in total excludable time thus far of 227 days.

The only other potentially excludable periods of time result from appellant’s waiver of his Rule 1100 rights. These periods include: December 3, 1974 until December 30th (27 days); May 5, 1975 until June 11th (37 days); and, December 18, 1975 until January 6, 1976 (19 days). The validity of these particular waivers depends upon whether the Commonwealth meets the burden of proving such a valid waiver. Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979). Neither the record before us, nor the Commonwealth’s argument, is sufficient to clearly establish the validity of the above waivers.

Assuming, arguendo, that even if we did find the waivers to be valid, the total excludable time would be 310 days. Finding no other excludable time, appellant would have been brought to trial within 213 days, which is a clear violation of Rule 1100. In light of this violation, we can find no reasonable basis, on the part of trial counsel, designed to effectuate his client’s interests by failing to apply for dismissal of charges. See, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Accordingly, the order of the lower court is reversed, and appellant is discharged.

      . Act 1966, January 25, P.L. 1580 (1965), 19 P.S. § 1180-1 et seq. repealed 1978, April 28, P.L. 202, No. 53, § 2(a) [1397], eff. June 27, 1980, now implemented by Pa.R.Crim.P. 1501 through 1506.

      . Pa.R.Crim.P. 1100(a)(2): “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

      . Pa.R.Crim.P. 1100(d): “In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorneys;
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.”

      . Pa.R.Crim.P. 1100(c): “At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.”

      . Pa.R.Crim.P. 1100(f): “At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated ... Any order granting such application shall dismiss the charges with prejudice and discharge the defendant.”


author: PER CURIAM: BROSKY, Judge,

text:
    447 A.2d 625
    COMMONWEALTH of Pennsylvania, Appellant, v. Edward SADLER.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed June 18, 1982.
    Petition for Allowance of Appeal Denied Oct. 13, 1982.

      Steven H. Goldblatt, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    John W. Packel, Assistant Public Defender, Philadelphia, for appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       At the time this case was submitted, Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania was sitting by designation.

   PER CURIAM:

In this appeal from an order arresting judgment, the Commonwealth contends that the lower court erred in holding that appellee had not been timely tried. For the reasons that follow, we reverse the lower court and remand for disposition of appellee’s remaining post-trial motions.

On June 6, 1978 appellee, then fifteen years old, committed the instant robbery and an unrelated robbery. He was arrested for the present offense on July 18, 1978. The Commonwealth filed a juvenile delinquency petition, and subsequently notified appellee it would seek to certify him to stand trial as an adult in criminal court on both offenses. A hearing for both robberies was scheduled for November 14,1978, but the complaining witness in the present case was unavailable. The juvenile court thus rescheduled the hearing on this offense, and proceeded with the hearing on the second robbery. After finding a prima facie case, the court heard testimony as to appellee’s amenability to treatment as a juvenile. The court then ordered him committed to the maximum security unit at Cornwells Heights Youth Development Center (Cornwells). On December 12,1978, it held a certification hearing on the instant offense, found a prima facie case, but postponed the amenability determination pending a report on appellee’s progress at Cornwells. On January 8, 1979 based upon the report of the director of Cornwells, the court found appellee not amenable to treatment in the juvenile system, and certified him to criminal court. His nonjury trial commenced on June 25, 1979, 341 days after the delinquency petition was filed, but 168 days after certification. Appellee was found guilty of robbery, theft, receiving stolen property, simple assault and criminal conspiracy. The next day, the trial judge contacted appellee’s attorney to suggest that he allege in post-trial motions that Pa.R.Crim.P. 1100 was violated. Appellee subsequently raised that issue and several others in post-trial motions. In granting appellee’s motions, the trial court concluded that appellee had not been timely tried under rule 1100, and that the juvenile court had improperly certified him to criminal court. Consequently, the trial court ordered him discharged, prompting this appeal.

The Commonwealth argues that the lower court erred in concluding that appellee had not been timely tried under rule 1100. We agree. In Commonwealth v. Bell, 245 Pa. Superior Ct. 164, 369 A.2d 345 (1976), aff’d mem., 481 Pa. 229, 392 A.2d 691 (1978), our Court held that when an action commenced in juvenile court by a delinquency petition is subsequently certified to criminal court, the rule 1100 period begins to run at the time of certification. Accord, Pa.R. Crim.P. 1100(a)(3) (effective January 1, 1982). The Court in Bell based its decision upon Pa.R.Crim.P. 1(a), which states: “Unless otherwise specifically provided, these rules shall not apply to juvenile .. . proceedings.” Thus, because rule 1100 does not expressly apply to juveniles, the Court reasoned that “[t]he 180 day period under Pa.R.Crim.P. 1100 commences at that point when the case comes within the powers of the Criminal Court, and hence within the ambit of the Rules of Criminal Procedure.” 245 Pa. Superior Ct. at 167, 369 A.2d at 346. Consequently, in this case, the 180 day period did not begin to run until January 8,1979, the date of certification. Because appellee’s trial commenced 168 days after that date, his rule 1100 rights were not violated.

The lower court concluded, however, that excluding the time between the filing of the delinquency petition and certification from the rule 1100 period denies juveniles equal protection of the law. In support of its conclusion, the lower court stated:

There is no reason not to include children within the ambit of the right to speedy trial. The Commonwealth has not suggested any possible legitimate objectives for this arbitrary and irrational distinction between adults and children. The court is unable to find any rational ground for such an invidious classification. If anything, a child needs more protection than an adult for the assertion of his Constitutional rights.

Lower Court Opinion at 11. Such reasoning incorrectly assumes that rule 1100 is constitutionally mandated. It is well settled, however, that the particular terms of rule 1100 “are neither directly granted by nor required by the Constitution.” Commonwealth v. Myrick, 468 Pa. 155, 161, 360 A.2d 598, 600 (1976). See also Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 (1972) (“We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.”); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Therefore, the issue in this case is not whether the equal protection clause requires application of the sixth amendment right to a speedy trial to juvenile delinquency proceedings, but whether that clause prohibits our Supreme Court from adopting a speedy trial rule that does not apply to juvenile delinquency actions until they have been transferred to criminal court.

Although we agree with the lower court that juveniles are treated differently from adults with respect to their rule 1100 rights, “not every difference in treatment amounts to a denial of equal protection; the difference must be without rational support.” Commonwealth v. Walters, 250 Pa. Superior Ct. 446, 450, 378 A.2d 1232, 1234 (1977) citing Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) and Commonwealth v. Staub, 461 Pa. 486, 337 A.2d 258 (1975). Because we believe that our Supreme Court could rationally adopt a rule of criminal procedure establishing a fixed period for bringing criminal defendants to trial without applying that rule to juvenile delinquency proceedings, we conclude that the equal protection clause does not mandate that the rule 1100 period begin upon the filing of the delinquency petition. As noted previously, Pa.R.Crim.P. 1(a) provides that the Pennsylvania Rules of Criminal Procedure generally do not apply to juvenile proceedings. Rule 1(a) is based upon our Supreme Court’s recognition of the substantial differences between juvenile and criminal proceedings. Geiger Appeal, 221 Pa. Superior Ct. 111, 120, 288 A.2d 911, 915 (1972) (HOFFMAN, J., dissenting), rev’d, 454 Pa. 51, 309 A.2d 559 (1973). See eg., Juvenile Act, 42 Pa.C.S. §§ 6336(a) (juvenile hearing conducted in informal manner by court without jury); 6336(c) (juvenile proceedings recorded only if requested by party or ordered by court); 6336(d) (general public excluded from juvenile hearings); 6352 (disposition of delinquent child). In holding that the due process clause of the fourteenth amendment requires that some rights afforded criminal defendants apply during the adjudicatory stage of juvenile delinquency proceedings, the United States Supreme Court also has recognized the differences between juvenile and criminal proceedings. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Cf. McKeiver v. Pennsylvania, 403 U.S. 528, 550, 91 S.Ct. 1976, 1988, 29 L.Ed.2d 647 (1971) (plurality opinion) (“If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial.”). We believe that the Federal Constitution does not preclude our legislature and Supreme Court from deciding whether procedural rules, such as rule 1100, should apply to juvenile proceedings. Accordingly, we hold that the lower court erred in concluding that rule 1100, as applied in this case, violates the equal protection clause.

The trial court held also that the juvenile court erred in certifying appellee to criminal court because he had already been found amenable to treatment within the juvenile system for a similar crime committed the same day as the instant offense. We disagree. To certify a juvenile to criminal court in a noncapital case, the court must find, inter alia, that there is a prima facie case that the child has committed the offense charged, 11 P.S. § 50-325(a)(4), and that there are reasonable grounds to believe “that the child is not amenable to treatment, supervision or rehabilitation through available facilities,” id. § 50-325(a)(4)(i) (emphasis added). In determining amenability, the court may consider “age, mental capacity, maturity, previous record and probation or institutional reports.” Id.; Commonwealth v. Greiner, 479 Pa. 364, 369, 388 A.2d 698, 700 (1978). The juvenile court is thus required to determine whether the child is amenable at the time of the hearing on that charge. The trial court’s holding that appellee’s committing two crimes on the same day precluded the juvenile court from finding him amenable to one and not the other is untenable. The date of the commission of the crime is essentially irrelevant to the child’s amenability. Appellee was charged with two unrelated crimes for which the Commonwealth sought certification to criminal court. Because of the unavailability of a witness in the instant case, there were two separate certification hearings. That he was found amenable to treatment at the time of the first certification hearing, did not preclude the juvenile court from later determining upon a record containing additional evidence whether he was still amenable at the time of the second hearing. In fact, the record is clear that appellee could no longer be treated as a juvenile. The school director’s report indicated that appellee’s behavior had begun to “decline drastically.” Appellee had attacked staff members and fellow students during his brief stay and constantly intimidated weaker students. He made sexual advances toward female staff members. Moreover, he had actively participated in a riot at the school, and then organized other students to oppose the State Police officers who had arrived to quell the disturbance. The director concluded that the resources at Cornwells had been exhausted. On this ample record, the juvenile court properly found appellee not amenable to treatment in the juvenile system.

For the foregoing reasons, we reverse the order of the court below and remand for disposition of appellee’s remaining post-verdict motions.

So ordered.

BROSKY, J., filed a dissenting opinion.

BROSKY, Judge,

dissenting:

I dissent.

Our Supreme Court has made no statement with regard to the issue of a juvenile’s rights under Pennsylvania Rules of Criminal Procedure 1100 (hereinafter Rule 1100). It has, however, affirmed a decision of our court on that issue without an opinion. In the absence of any view expressed by our Supreme Court, I believe a further discussion on the subject would be appropriate.

In Commonwealth v. Bell, 245 Pa.Super. 164, 369 A.2d 345 (1976), aff’d without opinion, 481 Pa. 229, 392 A.2d 691 (1978), President Judge Cercone stated by way of a dissenting opinion that Rule 1100 was not intended to begin to run when certification occurs. Rather, as our Supreme Court’s comment to Rule 1100 states:

“For the purpose of this rule only, it is intended that ‘complain’ also include special documents used in lieu of a complaint to initiate criminal proceedings in extraordinary circumstances.” Even if it is conceded that juvenile delinquency petitions are not “special documents in lieu of a complaint to initiate criminal proceedings in extraordinary circumstances,” when read in context with the rule, the comment nevertheless clearly indicates that the word “complaint” was used to designate the point when criminal proceedings were initiated by the filing of the delinquency petition in Juvenile Court, not by the certification of the case to adult court.

This view was also articulated by Mr. Justice Roberts who dissented to the affirmance of Commonwealth v. Bell, supra., where he directs our attention to Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), which indicated that the 180 day period will commence to run when there is an act which institutes criminal proceedings. Under the Mitchell, supra., analysis, that act includes the moment at which a warrantless arrest is made. It appears to me entirely inconsistent to hold that juveniles will not be accorded the same treatment under Rule 1100. Thus, I would start the Rule 1100 period when the juvenile delinquency petition is filed.

Alternatively, if we hold that juveniles are not included in Rule 1100’s protections pursuant to Pennsylvania Rule of Criminal Procedure 1(a), [hereinafter Rule 1(a)] we must determine whether the juvenile has been accorded due process within the scope provided adults. In re Gault, supra. The test by which the right to a speedy trial is gauged has been stated in State in Interest of H.M.T., 159 N.J.Super. 104, 387 A.2d 368 (1978), where the court said:

As a matter of federal constitutional imperative, the test of a vitiating delay has been articulated by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In determining whether a delay is reasonable in constitutional terms, the court is obligated to consider, balance and weigh four prescribed factors: the length of delay, the reasons for the delay, the prejudice resulting to defendant, and defendant’s assertion of the right.

Id. at 110, 387 A.2d at 371.

In the instant case, the appellee’s trial commenced 341 days after the delinquency petition was filed and 168 days after certification occurred. There is no apparent legitimizing explanation for the delay which exists in the record. Appellee was the subject of several proceedings but not until December 12, 1978 was a prima facie case found to exist against him. He was held in a detention center during this period of time and thus was readily accessible to the courts. Clearly, appellee was prejudiced by the delay. He was incarcerated in a detention center. Cf: United States v. Furey, 500 F.2d 338 (1974). Appellee asserted his right to a speedy trial. I would hold that completely separate from Rule 1100’s arbitrary 180 day limitation that appellee was denied his right to a speedy trial.

I also share the view of the court in Furey, supra., which stated:

As a matter of policy we see no reason why juvenile delinquency proceedings should be excluded from the plan. [Fed.R.Crim.Pro. 50(b) providing a 6 month limitation on commencement of trial] the same policies which precipitated the enactment of rules providing for prompt disposition of criminal proceedings are applicable whether the person charged is an adult or a juvenile.

I note that the application of the juvenile exception Rule 1(a) was rejected by our Supreme Court in a parallel situation in In re Geiger, 221 Pa.Super. 111, 288 A.2d 911 (1972), Rev’d, 454 Pa. 51, 309 A.2d 559 (1973).

Thus, because of the fundamental rights and compelling policy involved in this case, I can see no rational basis why the Supreme Court should require Rule 1100 be applied differently to adults than to juveniles. Commonwealth v. Walters, 250 Pa.Super. 446, 378 A.2d 1232 (1977). I would hold that the equal protection clause does mandate that Rule 1100’s 180 day period begin to run upon the filing of a delinquency petition.

      . Subsequent to the filing of this panel’s opinions on April 3, 1981, reconsideration was granted. The prior opinions are therefore withdrawn, and this opinion issued in their stead.

      . Specifically, appellee contended that counsel had been ineffective for failing to seek dismissal of the charges pursuant to rule 1100(f). Thus, he preserved his right to a dismissal, notwithstanding his failure to file a petition to dismiss before trial as required by the rule. Commonwealth v. Walley, 262 Pa. Superior Ct. 496, 501 n.6, 396 A.2d 1280, 1283 n.6 (1978).

      . This case is governed by Pa.R.Crim.P. 1100(a)(2), which provides: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.” While this case was pending on appeal, rule 1100 was amended.

      . There does not appear to be any Pennsylvania decision holding that juveniles have a right to a speedy trial. Courts in other jurisdictions, however, have held that the due process clause of the fourteenth amendment requires that juveniles be afforded the right to a speedy trial. See, e.g., P. V. v. District Court, Col., 609 P.2d 110 (1980); Piland v. Clark County Juvenile Court Services, 85 Nev. 489, 457 P.2d 523 (1969). Because that issue is not before us on this appeal, we do not decide it.

      . Appellee argues that in reviewing his equal protection claim, we should apply the compelling state interest test rather than the rational relationship test because the classification interferes with a fundamental right. See generally Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Stottlemyer v. Stottlemyer, 458 Pa. 503, 507, 329 A.2d 892, 894 (1974). He correctly notes that “ ‘the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment ____ Moore v. Arizona, 414 U.S. 25, 27-28, 94 S.Ct. 188, 190, 38 L.Ed.2d 183 (1973), quoting Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). As previously noted, however, this case does not involve the constitutional right to a speedy trial but rather a right created entirely by court rule.

      . Because we have concluded that appellee’s rule 1100 claim is without merit, his trial counsel cannot be deemed ineffective for failing to raise that claim. See, e.g., Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498, 500 (1980); Commonwealth v. Walley, supra, 262 Pa.Superior Ct. at 501 n.6, 396 A.2d at 1283 n.6.

      . The Commonwealth asks us to direct that on remand this case be assigned to a different judge because the post-verdict judge improperly assumed the role of advocate by suggesting that defense counsel raise the rule 1100 issue in post-verdict motions. At the hearing on post-verdict motions, the judge denied the Commonwealth’s motion to disqualify herself. We find no basis for disturbing her decision.

      . It is not even clear when and if a delinquency petition was filed in accordance with the procedures established in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Sadler was taken into custody on July 6, 1978 and no proceeding formally noted charges against appellee without subsequent withdrawal until December 12, 1978.


author: JOHNSON, Judge:

text:
    447 A.2d 630
    COMMONWEALTH ex rel. Michael Scott NEWCOMER v. Jeffrey KING, Ralph King, and Retha King. Appeal of Paula PETERSON.
    Superior Court of Pennsylvania.
    Argued March 15, 1982.
    Filed June 25, 1982.

      Joseph M. Kulik, Pittsburgh, for appellant.
    George L. Hallal, Uniontown, for appellees.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

This is an appeal from an order awarding custody of a seven year old boy, Michael Scott Newcomer, to his father, Appellee Jeffrey King. After making a complete review of the record, we find the record and opinion below to be inadequate, and therefore vacate the order and remand the case for further proceedings consistent with this opinion.

The child in question was born March 16, 1975 to Appellant Paula Peterson. Appellee Jeffrey King is the natural father and Ralph and Retha King the child’s paternal grandparents, with whom Appellee Jeffrey King currently resides.

The record indicates that after leaving the hospital a few days after the birth of the child, Appellant and the child resided with Jeffrey King in the home of Ralph and Retha King. There was contradictory testimony offered concerning whether Appellant actually resided in the King home for more than a few days after returning from the hospital. In October of 1976, Appellant took up residence in a mobile home located on the King property. The record also indicates that until the summer of 1977, Retha King often cared for the child.

After a disagreement with Appellee Jeffrey King, Appellant moved in with her parents during the summer of 1977 and filed a habeas corpus action for custody of the child. She was then given temporary custody and moved, along with the child, to her sister’s residence in Fayette County. In September of 1977, Appellant moved into a trailer park in Westmoreland County with the child and after reconciling with Appellee Jeffrey King, married him on November 3, 1977. Appellant and her husband took up residence together with the child in the trailer. Soon afterward, Appellant took the child and left for Alabama, but returned a few days later, after again reconciling with Appellee Jeffrey King.

Other disputed testimony indicated that Appellee Jeffrey King had abused Appellant physically. Also, there was testimony from Appellant’s sister that the child, who referred to Appellant by her first name, told Appellant’s sister that Appellant was a bad person and that he had been told by his father that Appellant had tried to kill him. There was also disputed testimony regarding statements made by the child that his father did not require him to go to school, to church or take a bath.

Numerous witnesses testified for each of the parents concerning their good relationship with the child, that each parent loved and cared for the child and that the child was well-adjusted and appeared happy while with that parent.

On August 9, 1978, the second child of Appellant and Jeffrey King was born. On November 14, 1978, Appellant filed a petition to set a hearing on her original habeas corpus petition, after Appellees refused to return the child or allow Appellant to see the child, who had been residing at the King residence while Appellant cared for her ill second child. An order was issued the next day giving Jeffrey King temporary custody of the child.

The hearing was scheduled for December 20, 1978 on the habeas corpus petition. Jeffrey King absconded with the child to California prior to the hearing date and he was held in contempt for failing to appear before the court on December 20, 1978. Retha King then joined her son and grandson in California. She was found in contempt after a hearing on March 15, 1979 for failing to appear before the court, after Appellant had, on February 26, 1979, filed a Petition and Rule for Contempt.

The Appellant and Appellee Jeffrey King were divorced on August 13, 1979, but Appellant was unable to locate her husband and child, despite concerted efforts, until their return to Pennsylvania in August of 1980. Upon their return, Jeffrey King was placed under arrest.

The record further indicates that Appellant is living with her second husband and the second child born of Jeffrey King, as well as a child born of her second husband. Appellant’s second husband is employed full-time and Appellant currently remains at the residence to care for the children. Appellee Jeffrey King was unemployed at the time of the hearings, but had a solid work history. His father was employed and able to provide adequately for himself, Retha King, Jeffrey King and the child.

Hearings on the habeas corpus petition were held on September 24 and December 4, 1980 and on January 29, 1981. The court issued its opinion and order in the matter on May 21, 1981.

The primary concern in child custody cases is the best interests of the child, including his physical, intellectual, emotional and spiritual well-being. In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977).

It is clear that our scope of review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981); Commonwealth ex rel. Berman v. Berman, 289 Pa. Super. 91, 432 A.2d 1066 (1981). We are required to exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice. Commonwealth ex rel. Pierce v. Pierce, supra; Commonwealth ex rel. Oxenreider v. Oxenreider, supra; Commonwealth ex rel. Berman v. Berman, supra. While we cannot nullify or usurp the fact-finding function of the trial court, we are not bound by the deductions or inferences made by them. Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981); In re Davis, 288 Pa.Super. 548, 432 A.2d 600 (1981); Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979). Therefore, if the issue is whether we should reverse the lower court’s findings of fact, we must defer to the lower court and reverse only where, in making the findings, the lower court has abused its discretion. Commonwealth ex rel. Berman v. Berman, supra; In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). However, because of our requirement to exercise independent judgment, we will not adhere to an abuse of discretion standard in reviewing the determination of the lower court. See Robert H.H. v. May L.H., supra; Commonwealth ex rel. Berman v. Berman, supra; In re Arnold, id., 286 Pa.Super. at 176, 428 A.2d at 629 (HOFFMAN, J., concurring); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 457, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., concurring).

So as to facilitate our broad scope of review, we consistently emphasize that the lower court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision. Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981); Garrity v. Garrity, supra. The lower court’s opinion must address the testimony and the law; it must indicate the grounds for selecting the particular findings, and the reasoning process by which the judge reached his ultimate conclusion. Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980); In re Custody of White, 270 Pa.Super.165, 411 A.2d 231 (1979); In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). The lower court’s opinion must also clearly demonstrate the necessity for placing custody with either the petitioner or respondent. Robert H.H. v. May L.H., supra.

In its opinion, the lower court determined that permanent custody should be given to Appellee Jeffrey King with liberal visitation granted to Appellant. After setting forth the facts leading up to the hearings on the habeas corpus action and making certain findings of fact, the court discussed its reasons for its determination. It concluded that both parents were capable of providing for the child, but that custody should remain with Jeffrey King because of the stable relationship developed between father and son, as in the best interests of the child.

The lower court correctly concluded that, in a case where both parents are equally fit to have custody, the fact that a stable, long-continued and happy relationship has developed between the child and one parent may be of critical importance in the formation of an appropriate custody decree. Pamela J. K. v. Roger D. J., 277 Pa.Super. 579, 419 A.2d 1301 (1980); Commonwealth ex rel. Cutler v. Cutler, supra.

However, as stated in Commonwealth ex rel. E.H.T. v. R.E.T., id., 285 Pa.Super. at 456-57, 427 A.2d at 1376:

Although one’s violation of a court order is certainly not controlling in resolving a custody dispute, there is absolutely nothing improper about considering such a violation in the evaluation of each party’s parental attributes.
When a party, in bad faith, removes a child from another jurisdiction in order to circumvent an adverse custody order of a court in that jurisdiction, our courts have held that such evasion of the law, if proven, should be an important factor when Pennsylvania courts consider the custody dispute. Commonwealth ex rel. Rogers v. Daven, 298 Pa. 416, 148 A. 524 (1930); Irizarry Appeal, 195 Pa.Super. 104, 169 A.2d 307 (1961). The instant case raises the same troublesome issue. In resorting to self-help remedies, [appellant] acted in a manner inconsistent with the orderly and impartial resolution of disputes concerning the custody of minors. In ascertaining who would best serve the welfare of the children, the lower court should consider [appellant’s] disrespect for the legal process and evaluate how it bears on [her] fitness to be awarded custody of the children.
In re Leskovich, 253 Pa.Super. 349, 359, 385 A.2d 373, 378 (emphasis added) (citations omitted).

See also, Pamela J. K. v. Roger D. J., supra; Commonwealth ex rel. Snapir v. Snapir, 196 Pa.Super. 38, 173 A.2d 694 (1961) (father’s contempt of court order, by taking minor child out of state and secreting him from family and relatives, could have bearing upon father’s fitness for custody).

The lower court, in its opinion, merely mentioned the absconding of the child by Jeffrey King and concluded that “the child should not be punished for the transgressions of a parent.” We find this brief analysis to be insufficient in light of the court’s award of custody to the father. The court’s statement appears to imply that if a parent violates the law by kidnapping his or her child, and then remains in isolation for a substantial period of time, then, because of the importance of the element of stability, he or she will have a better chance of gaining permanent legal custody of the child. This is not the law. Except in unusual circumstances, estrangement of a child from either parent will not be sanctioned. Pamela J. K. v. Roger D. J., supra. We also find that the lower court’s finding of fact that Retha King is an “outstanding person[s] of high moral character and integrity” to be inconsistent, without further explanation, because of her previous contempt citation.

We believe that the instant case requires at least a psychological evaluation of the child, in light of the court’s determination that a change in custody in the instant case would have “a very traumatic effect on the child.” This requirement is strengthened by the fact that no true interview with the child was made nor transcribed. The record indicates that no psychiatric or psychological evaluation was made of any of the parties involved. In In re Davis, supra, the court held that the record in that custody case was complete without a psychiatric evaluation of the child and the mother, from whom custody was removed. However, in the instant case, the lower court had little on which to base its determination concerning trauma. We have often stated that in child custody cases, we will not accept a finding that has no competent evidence to support it. Pamela J. K. v. Roger D. J., supra.

The lower court also failed to make any reference in its opinion to the written report made by the Fayette County Children and Youth Services’ caseworker. This report was ordered by the court and the court’s determination delayed until its results were made known. The evaluation of the homes of Appellant and the Kings and interviews with Appellant and Appellee Jeffrey King culminated in a recommendation of awarding custody to Appellant. Under the circumstances of the instant case, the court should have at least discussed the report in its opinion, as it determined to award custody to Jeffrey King.

The lower court also failed to assess the credibility of the witnesses where there was conflicting testimony given. See Hamilton v. Claypoole, 283 Pa.Super. 200, 423 A.2d 1058 (1980); In re Custody of White, supra.

Finally, the court failed to adequately discuss its holding in light of the policy in our law that absent compelling reasons to the contrary, siblings should be raised in the same household. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); In re Davis, supra.

In summary, after a complete review of the record, we find the opinion of the lower court deficient in the respects discussed supra. We also find the record to be inadequate in terms of the lack of a psychological evaluation of the child regarding any trauma to which he may be subjected if custody is awarded to Appellant.

Finally, the lower court should consider resuming temporary custody of the child with Appellant until an appropriate final order is made.

The order dated May 21, 1981 is vacated and the case remanded for proceedings and a comprehensive opinion in accordance with this opinion. Jurisdiction is not to be retained by this court.

      . Testimony indicates that Appellant rented an apartment during the period between her return from the hospital and October of 1976. She testified that although she spent some time in the apartment, she spent the majority of her time at the King residence. Appellees’ testimony disputed this fact.

      . Appellant alleges that she was the primary caretaker of the child from the time of his birth, which fact was disputed by Appellees’ testimony.

      . Appellant alleges that Jeffrey King told her that his sole reason for marrying her was to gain custody of the child.

      . Appellant has custody of the second child, bom August 9, 1978.


author: MONTGOMERY, Judge:

text:
    447 A.2d 951
    Mary Jane SCOTT, v. 1523 WALNUT CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1982.
    Filed July 9, 1982.

      Philip L. Blackman, Philadelphia, for appellant.
    David A. Gradwohl, Philadelphia, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from an order by the lower court denying the Defendant-Appellant’s original petition and an amended petition to strike and/or open a judgment in ejectment which had been entered by confession. The action had originally been initiated by the Plaintiff-Appellee on September 5,1980, with the filing of a complaint for confession of judgment in ejectment. On the same date, the PlaintiffAppellee confessed judgment, which was entered by the’ Prothonotary against the Appellant. The property in question included the first floor and basement of 1523 Walnut Street, in Philadelphia, wherein the Appellant was at that time operating a restaurant. Judgment was confessed pursuant to the authority of a confession of judgment clause and warrant of attorney contained in a commercial lease between the Appellee and the Appellant.

The Appellant filed a petition to strike and/or open judgment on September 22, 1980. On October 14, 1980, the Appellant filed a petition to amend its earlier petition. Subsequently, depositions were taken and were submitted to the lower court. The parties filed briefs and appeared before the court for oral argument. The Honorable Maurice Sporkin thereafter entered an Adjudication and Order and Decree dated July 22, 1981, denying the Appellant’s petition and amended petition, and granting a writ of possession to the Appellee. A timely appeal was thereafter filed to our Court.

We must be mindful of several well-established concepts applicable in our review in cases like the instant one. First, a petition or motion to strike a judgment entered by confession must be treated differently than a petition or motion to open the same judgment. A petition or motion to strike is the proper remedy where fatal defects are apparent on the face of the record. Kros v. Bacall Textile Corp., 386 Pa. 360, 126 A.2d 421 (1956). Where the moving party claims an irregularity on matters dehors the record, his claim must be asserted on a petition or motion to open the judgment. Kros v. Bacall Textile Corp., id.; Goldberg v. Altman, 190 Pa.Super. 495, 154 A.2d 279 (1959). While both types of claims may be raised in a single petition (Pa.R.C.P. 2959), it appears that all of the Appellant’s contentions on appeal in the instant case, as will be more fully discussed below, are efforts to open, rather than to strike the judgment. See Goldberg v. Altman, id. It is held that an application to open a confessed judgment is an equitable proceeding, and is governed by equitable principles. Sanctis v. Lagerbusch, 213 Pa.Super. 483, 249 A.2d 919 (1968). In such cases, a reviewing court will not disturb the determinations reached by the lower court except in the circumstances of a clear and manifest abuse of discretion. Triangle Build ing Supplies and Lumber Co. v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287 (1976).

The Appellant raises three principal contentions on this appeal. First, it argues that the lower court erred when it held that the warrants of attorney to confess judgment in ejectment, contained in lease and assignment documents entered into in 1950, were valid and binding upon the Appellant as a result of a renewal document signed in 1972. Second, it is contended that the confession of judgment was invalid because the Plaintiff failed to proceed in accordance with applicable provisions of the Pennsylvania Rules of Civil Procedure. Finally, the Appellant argues that the lower court erred in refusing to open the judgment because the Appellant had allegedly established a prima facie case of equitable estoppel. After thorough consideration of the evidence, in light of clearly established legal precedent, we are constrained to conclude that the lower court committed a clear and manifest abuse of discretion in denying the petition to open judgment which was filed by the Appellant. More specifically, we find merit in the first and second claims of error asserted by the Appellant.

As a preface to our analysis of the issues presented, it is appropriate that we first review the relevant evidence presented to the lower court. Except where otherwise specifically noted, our recitation of the facts adopts the findings of fact made by the lower court. In addition, we shall set forth facts which appear uncontradicted in the record, although they may not have been addressed in the lower court’s findings of fact.

The record establishes that a lease agreement was entered on July 1, 1950 between William I. Mirkil Co., an agent, as lessor, and Marguerite Wallower, as lessee, for the rental of the street floor and basement of a premises situated at and known as 1523 Walnut Street, in the City of Philadelphia. The lease agreement provided that the initial date of the lease term was contingent upon the happening of several events, but that the term of the lease would end on September 30, 1955. The lease provided, in paragraph 41, that the lessee, Ms. Wallower, was to cause a Pennsylvania corporation to be formed for the purpose of owning and operating a business to be carried on upon the demised premises. Further, it stated that upon formation of that corporation, the lease would be assigned to the corporation and upon its assumption, the corporation would become the actual lessee, instead of Ms. Wallower. We find the last sentence of paragraph 41 of the July 1, 1950 lease to be particularly significant to our analysis of the issues presented in the instant appeal. It stated: “Such assignment shall be effected by Lessor and Lessee and such corporation entering into an agreement in the form of that marked Exhibit ‘A’, attached hereto and hereby made a part hereof” (emphasis added). The lease also contained a clause establishing a warrant of attorney for the confession of judgment in ejectment, in the event of a nonpayment of rent, or other failure by lessee to comply with the terms of the lease.

A second document, identified by the parties as the “Assignment” agreement was entered into by William I. Mirkil Co., an agent, as the lessor, and by Marguerite Wallower, and the Appellant, 1523 Walnut Corporation. The Assignment agreement set forth the agreement among all of the parties to the assignment by Ms. Wallower to the Appellant of all of her rights and obligations under the July 1, 1950 Lease. Further, the Appellant not only agreed to abide, in general, by all of the terms and conditions set forth in the Lease, but also specifically agreed to authorize confession of judgment in ejectment in the manner referred to in the Lease Agreement. There is no provision in the August 2, 1950 Assignment document under which the parties agreed that it would become a part of or be incorporated into the earlier lease between the lessor and Ms. Wallower.

By an agreement dated August 21, 1953, entered into between William I. Mirkil Co., Agent, as lessor, and the Appellant, as lessee, a renewal of the lease period was agreed to for an additional term of 3 years dating from October 1, 1955. Although that renewal agreement contained no new warrant of attorney to confess judgment in ejectment, it did make reference to both the original lease of July 1,1950, and the assignment agreement dated August 2, 1950, and significantly, incorporated both documents by reference.

In December, 1958, both William I. Mirkil Co., as agent, and the Dean Corporation, the then current owner of the property, assigned and sold all of their respective interests in the said 1523 Walnut Street property to Mary Jane Gaynor, then a single woman, the Appellee in the instant appeal.

Another agreement was entered on July 31,1956, between the Appellee, as lessor, and the Appellant, as lessee, extending the period of the lease until September 30, 1962. This 1956 document made reference to the July 1, 1950 lease agreement and the August 21,1953 amendment, but did not specifically incorporate either by reference or note either as an exhibit. However it did provide: “All other terms, conditions, stipulations and provisions contained in the lease agreement of July 1, 1950, as amended August 21, 1953, which are not inconsistent herewith are hereby ratified and confirmed”.

Another agreement was entered into between the Appellee and the Appellant on August 7, 1961. It expressed the desire by the parties to further amend the lease agreement dated July 1, 1950, as amended August 21, 1953 and as further amended July 31,1956. The 1961 agreement did not specifically incorporate the July 1,1950 lease agreement, but did provide: “The parties do hereby release each other from any claims which each may have against the other under the terms of the lease agreement up to the date hereof and otherwise do hereby ratify and confirm all terms of the lease agreement dated July 1, 1950, as heretofore amended, not inconsistent herewith.” The August, 1961 agreement provided for the extension of the lease period until September 30, 1970. Like the 1953 and 1956 lease renewal agreements, the 1961 agreement did not contain a clause providing for the confession of judgment in ejectment in the event of nonperformance by the Appellant of any of the terms of the lease, including a failure in the payment of rent.

The final written agreement between the parties was entered into on August 23, 1972. It provided for the extension of the lease for a period of ten years commencing October 1, 1975. As to the original lease, which contained the confession of judgment clause, it provided: “Except as modified hereby, the terms of the Lease Agreement dated July 1, 1950, as heretofore amended, shall remain in full force and effect”. The August, 1972 agreement did not itself include a cognovit clause, nor did it incorporate by reference any other document.

The lower court found as a fact that the original lease and assignment were attached to each renewal document. No agreement between the parties after the initial 1953 extension agreement made any reference to the August 2, 1950 Assignment document, under which the Appellant assumed the rights and liabilities of Mrs. Wallower under the July 1, 1950 lease and which also contained a clause granting a warrant of attorney for the confession of judgment.

As stated earlier, the Appellant’s initial claim on this appeal is that the warrants of attorney to confess judgment in ejectment, set forth in the 1950 lease and Assignment, were not binding upon the Appellant. An analysis of this issue requires an examination of legal precedent, which is well-established, regarding the question of the enforceability of such contract clauses. It is clear that the law closely scrutinizes any transaction based upon a warrant of attorney for the confession of judgment. Former Justice Musmanno colorfully described the prevailing view in Cutler Corp. v. Latshaw, 374 Pa. 1, 4-5, 97 A.2d 234, 236 (1953), when he declared:

“A warrant of attorney authorizing judgment is perhaps the most powerful and drastic document known to civil law. The signer deprives himself of every defense and every delay of execution, he waives exemption of personal property from levy and sale under the exemption laws, he places his cause in the hands of a hostile defender. The signing of a warrant of attorney is equivalent to a warrior of old entering a combat by discarding his shield and breaking his sword. For that reason the law jealously insists on proof that this helplessness and impoverishment was voluntarily accepted and consciously assumed.”

Frantz Tractor Co. v. Wyoming Valley Nursery, 384 Pa. 213, 120 A.2d 303 (1956) is a lead case in articulating the factors to be considered in cases wherein the validity of a warrant of attorney to confess judgment in a lease is in issue. In Frantz, the Supreme Court, citing Cutler Corp. v. Latshaw, supra, noted that: (1) the warrant must be in writing; and (2) it should be signed by the party against whom it is asserted. Further, after reviewing other precedent, the Court declared as a third requirement that the requisite signature must bear a direct relation to the warrant, and may not be implied extrinsically nor be imputed from an assignment of the instrument containing the warrant. It is noteworthy that in Frantz, the Supreme Court affirmed the lower court’s order striking judgments taken by confession, where the warrant of attorney clause was contained in small print among clauses on the reverse side of a lease form, even though the face of the lease contained a general reference binding the lessee to all of the terms set forth on the reverse side. In its discussion of the law applicable in such cases, the Supreme Court offered several observations which are quite pertinent here, considering the facts presented in the instant case:

“We recently had occasion to point out that, ordinarily, it is immaterial where the parties to a written agreement sign it so long as the meeting of the parties’ minds, which their signing betokens, embraces all of the writings constituting the contract at the time of its execution. See Petrie v. Haddock, 384 Pa. 7, 119 A.2d 45. But, that is not true of a provision for a warrant of attorney. Where a lease contains a warrant of attorney, the signature of the lessee must bear such direct relation to the provision authorizing the warrant as to leave no doubt that the lessee signed, conscious of the fact that he was thereby conferring upon the lessor a warrant to confess judgment against him for a breach of a covenant of the lease. A general reference in the body of an executed lease to terms and conditions to be found outside the agreement is insufficient to bind the lessee to a warrant of attorney not contained in the body of the lease unless the lessee signs the warrant where it does appear. In short, a warrant of attorney to confess judgment is not to be foisted upon anyone by implication or by general and nonspecific reference.
“A warrant of attorney to confess judgment has a very special and significant status. An assignment of a lease binds the assignee with all the terms and conditions thereof except a provision for a warrant of attorney to confess judgment against the lessee; and, this is so even where the assignee formally agrees with the lessor to an assignment of a lease by endorsing thereon that he, the assignee, accepts it ‘according to its full tenor and effect’. Such, indeed, was the ruling in Ahern v. Standard Realty Co., 267 Pa. 404, 405, 110 A. 141, where a judgment confessed against the assignee after his express acceptance of the lease was stricken off.” (emphasis in original). 384 Pa. at 216-217, 120 A.2d 303.

Our Court also has spoken on the requirements for the enforceability of a cognovit clause in a lease. In Egyptian Sands Real Estate, Inc. v. Polony, 222 Pa.Super. 315, 294 A.2d 799 (1972), we reversed a lower court’s refusal to open a judgment entered by confession where we found no clear manifestation of consent to the cognovit clause of the lease by the lessees. Citing precedent, this Court recognized the following concepts:

“Under general rules, a provision in a contract survives a modification as to some other term; a covenant of a lessee is binding upon his assignee; and a promise on the second page of a document is binding upon a promisor who signs on the first page.
“But, with respect to a cognovit provision, Pennsylvania will not presume an intent of parties to a modified contract to perpetuate a warrant of attorney. Solazo v. Boyle, 365 Pa. 586, 76 A.2d 179 (1950). Nor will a lease’s cognovit clause be binding upon the lessee’s assignee. Ahern v. Standard Realty Co., 267 Pa. 404, 110 A. 141 (1920). And a warrant of attorney on the second page of a document will not be conclusive against the signer of the first page. Frantz Tractor Co. v. Wyoming Valley Nursery, 384 Pa. 213, 120 A.2d 303 (1956). . ..
“The theme running through the above-cited cases pertaining to cognovit clauses is that Pennsylvania requires a clearer manifestation of consent to sustain a warrant of attorney to confess judgment than it does to sustain a normal contract provision.” 222 Pa.Super. at 321-22, 294 A.2d at 803-804.

With all of these concepts in mind, we perceive no justifiable basis for the lower court’s refusal to open the confessed judgment in this case. First, it is clear that the cognovit provision in the July 1, 1950 lease could not alone support the 1980 confession of judgment. The Appellee must, of necessity, rely upon the terms of the latest amendment agreement between the parties, dated August 23,1972, as that was the only document which was effective as of the date of the Appellee’s action. A prefatory paragraph of the August, 1972 agreement recited that the parties were lessor and lessee to the property in question under the July 1,1950 lease agreement and the various consecutive amendment agreements, and also stated the desire of the parties to further amend the lease agreement to extend the term thereof. The 1972 document made several other references to the July 1, 1950 lease, and, as discussed earlier, provided that: “Except as modified hereby, the terms of the Lease Agreement dated July 1, 1950, as heretofore amended, shall remain in full force and effect.” As previously explained, although the original lease and the 1953, 1956, and 1961 extension agreements were apparently attached to the 1972 agreement, none was designated in the latter as an exhibit nor was any specifically incorporated therein by reference. Finally, it should again be recognized that no warrant of attorney for the confession of judgment in assumpsit was set forth in the 1972 document.

In these circumstances, prevailing legal precedent precludes a finding that the confessed judgment was valid in this case. First, we are not permitted to presume that it was the intent of the parties, in their various agreements up through and including the 1972 agreement, to perpetuate the 1950 warrant of attorney. See Solazo v. Boyle, 365 Pa. 586, 76 A.2d 179 (1950). Next, we may not treat the cognovit clause in the 1950 lease as a binding part of the 1972 agreement, as it was only in an appended document, and thus bore no direct relation to the signature of the Appellant’s representative on the 1972 document. See Frantz Tractor Co. v. Wyoming Valley Nursery, supra. Next, there is a total absence of the clear manifestation of consent which is required to sustain the validity of a cognovit clause. See Egyptian Sands Real Estate, Inc. v. Polony, supra. Finally, we recognize that the mere general reference in the 1972 document to the July 1, 1950 lease is insufficient to bind the Appellant to the warrant of attorney clause set forth in that lease. Frantz Tractor Co. v. Wyoming Valley Nursery, supra.

While it is evident that the cognovit clause in the July, 1950 lease provided no legally justifiable support for the confession of judgment in this case, we must also address the question of whether the same type of clause in the August 2, 1950 Assignment agreement would support the Appellee’s confession of judgment against the Appellant. A brief review of the Assignment agreement might well lead to the conclusion that the warrant of attorney for the confession of judgment in that document could substantiate the Appellee’s action. The document is not dated, so it presumably remains effective. We find it unnecessary to analyze the question of the current enforceability of that Assignment provision however, because it is clear that even if we consider it to be valid and binding upon the Appellant the Appellee has nevertheless failed to follow required procedures in confessing judgment in this case.

Pa.R.C.P. 2951 sets forth the methods by which a party may proceed in our courts to confess judgment for money. Subdivision (d) of that Rule provides: “If the instrument is more than twenty (20) years old, judgment may be entered only by leave of court after notice and the filing of a complaint under Subdivision (b). (emphasis added). Pa.R. C.P. 2970 pertains to the confession of judgment for possession of real property. It states: “Except as otherwise provided in this chapter, the procedure in an action to enter a judgment in ejectment for possession of real property by confession pursuant to an instrument authorizing such confession shall be in accordance with the rules relating to confession of judgment for money.” There is no reference in any other rule with respect to the confession of judgment for the possession of real property which provides for a procedure other than as set forth in Rule 2951(d), when the instrument containing the cognovit clause is more than twenty (20) years old. In the instant case, the Assignment agreement was effective on August 2, 1950, while the confession action was not instituted until over thirty (30) years later in September, 1980. There is no suggestion that the Appellee sought leave of court or provided notice before causing the judgment to be entered in the instant case. This failure by Appellee to follow the clearly applicable Rules of Procedure certainly invalidated these proceedings, even if we assume the cognovit clause in the 1950 Assignment agreement to be currently valid.

In view of the conclusions we have reached, it is unnecessary that we analyze the questions presented by the Appellant’s third argument, concerning an alleged equitable estoppel. We believe it to be appropriate, however, to state that our decision is restricted to the narrow issue of whether the lower court manifestly abused its discretion in finding valid the Appellee’s action causing a judgment in ejectment to be entered by confession in this case. We reach no conclusion and express no opinion regarding the merits of the underlying dispute between the parties, and our decision may not be construed to preclude any further legal proceedings by the Appellee against the Appellant seeking ejectment or other remedies for the alleged breach of the lease. In that regard, we also note that we have made no findings at all concerning the validity of the lease.

The Order of the lower court is reversed, the judgment is opened, and the record is remanded for further proceedings on the Appellee’s Complaint. Jurisdiction is not retained.

      . We note that no issue is raised in the instant appeal to suggest that the language contained in the confession of judgment clause was itself defective in empowering the lessor to confess judgment in appropriate circumstances.


text:
    447 A.2d 958
    GEN. DYNAFAB, INC. v. CHELSEA INDUSTRIES, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1980.
    Filed May 14, 1982.
    Reargument Denied Aug. 2, 1982.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.

      Howard D. Scher, Philadelphia, for appellant.
    Anthony E. Creato, Philadelphia, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

The appellant, Chelsea Industries, Inc. (Chelsea), questions the propriety of the trial court’s decision to grant a motion for a new trial limited to damages where the issue of damages is inextricably intertwined with that of liability and where the damages, lost future profits, are speculative. We are satisfied that the trial court acted correctly and accordingly affirm the decision of the trial court.

Chelsea and appellee, General Dynafab, Inc. (Dynafab), entered an agreement wherein Chelsea would manufacture and sell products produced by a process called “Fiberweld Process” which had been developed by Dynafab. Chelsea was to produce the product at its Jersey Laminating and Finishing Company in Roselle, New Jersey, where it owned a plant and machinery which were required for use in the “Fiberweld Process.” The agreement provided that Dynafab would deliver materials and equipment to Chelsea’s plant and that Chelsea would modify its machinery in order to produce the product.

The record discloses that shortly after the agreement was executed, Dynafab was locked out of Chelsea’s plant. This rendered it impossible for Dynafab to participate in the agreement in which it had contracted for various commissions and other payments. Dynafab then sued Chelsea, claiming Chelsea had breached the contract. A jury awarded Dynafab $215,000 in damages. Chelsea moved for a judgment n. o. v. or new trial and to mold the verdict. Dynafab moved for a new trial limited only to the issue of damages. Dynafab’s motion was granted. Chelsea’s motions were denied. This appeal followed.

Chelsea argues that the issue of damages herein is so inextricably intertwined with the issue of liability that at a new trial both issues must be considered. In Gudat v. Heuberger, 275 Pa.Super. 535, 542-543, 419 A.2d 30, 33-34 (1980), we said:

The question remains, however, whether the new trial should be limited to the issue of damages. This court will grant a new trial limited to damages where the issue of liability has been fairly determined and the issue of damages is readily separable from the issue of liability. See Lininger v. Kromer, 238 Pa.Super. 259, 358 A.2d 89 (1976). In cases involving inadequate verdicts, however, we are reluctant to grant new trials limited to the issue of damages and will consider the issue of liability to have been fairly determined only where it is “uncontested,” “clear” or “free from doubt.” Gagliano v. Ditzler, 437 Pa. 230, 263 A.2d 319 (1970). The reason for our reluctance is the possibility that the inadequate verdict may in fact have been a compromise verdict reflecting an agreement among the jurors to lessen the plaintiff’s award because of evidence that he contributed to the injury. See Lambert v. PBI Industries, 244 Pa.Super. 118, 366 A.2d 944 (1976).

Chelsea contends that the damages awarded below resulted from a compromise verdict.

The jury found for Dynafab in the amount of $215,600, representing $61,600 per year lost profits for 3V2 years. The record indicates that the anticipated duration of the contract was not precisely specified therein. Apparently, however, the parties envisioned a contract lasting up to 10. The 3V2 year determination was based entirely upon the jury’s will. Chelsea contends that this is not a case where an inadequate verdict indicates a compromise, rather, they assert that the trial court erred in its instructions as to damages and that that error resulted in an inadequate verdict. In other words, the jury’s verdict resulted in a clear statement concerning liability, based upon sufficient evidence, however, an inadequate verdict arose from the improper instructions the court gave the jury concerning damages.

The court essentially instructed the jury that it could find Chelsea liable for up to $61,600 lost profits per year, for a reasonable number of years. In ordering a new trial limited to damages the court conceded that this instruction and an alternate instruction it gave, were improper. Clearly, the parties agree, including the trial judge, that the damages’ instruction was improper. Chelsea remonstrates that the jury found the maximum amount permitted by the court, $215,600. Thus, Chelsea would have us believe either that the court stated in its instructions that the jury could find damages in the form of lost profits of $61,600 per year for a reasonable number of years up to and not exceeding 3V2 years or that the number of years for which damages could be adjudged represented a separate and distinct judgment as to liability alone.

The record demonstrates that the 3V2 year determination was made in accordance with the court’s instructions that the jury reach a conclusion as to the reasonable duration of the contract. The jury was restricted only in that if it chose to use the lost profits mode of determining damages it could only find that for each year in which liability existed that $61,600 in damages could be assessed. Under these circumstances, we find that the issue of liability was “uncontested” “clear” or “free from doubt.” The jury, were it to find lost profits, was obliged to find a set amount per year and was only free to vary its verdict according to the number of years it considered “reasonable.” Thus, it is apparent, that there is a substantial likelihood that while disagreement may have existed as to the amount of damages, no disagreement existed concerning the issue of Chelsea’s liability.

Next, Chelsea asserts that lost profits may not be used as a measure of damages where, as here, a new business with no record of prior profitability exists. Decisions of this court and of our Supreme Court have suggested that damages for lost profits of a new business are too speculative. Exton Drive-In v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319 (1979), cert. den. 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970); Pines Plaza Bowling Inc. v. Rossview Inc., 394 Pa. 124, 145 A.2d 672 (1958); Pollock v. Morelli, 245 Pa.Super. 388, 369 A.2d 458 (1976). Nevertheless, our courts have held that damages may be assessed for loss of profit where such a loss was reasonably foreseeable to the parties at the time that the contract was entered and where those damages are capable of proof of reasonable certainty. Taylor v. Kaufhold, 368 Pa. 538, 84 A.2d 347 (1951); Mellon Bank, N. A. v. Aetna Business Credit Inc., 500 F.Supp. 1312 (W.D.Pa.1980); Restatement, Contracts, § 331 (1932).

While it is arguable here that Dynafab was a newcomer to the business herein, nevertheless, unlike the plaintiffs in Exton Drive-In, supra, Pines Bowling, Inc., supra, and Pollock, supra, Dynafab was able to show that there was significant interest in their product before the contract breach occurred. The record demonstrates that Dynafab had commitments for orders from four sources. That Dynafab could demonstrate a sales record of Fiberweld Products during the previous IV2 years. Evidence was submitted also concerning the projected sales, raw material needs and profitability of the Chelsea plant at Jersey Laminating and Finishing Company. Clearly, this evidence is not entirely of an unspeculative nature, however, we believe that if the jury believed it, it could come to a reasonable determination as to damages resulting from loss of future profits. Thus, we hold that the evidence should be submitted to the jury for it to decide its weight in the assessment of damages. See Kasemier v. National Fuel Gas Distribution Corporation, 279 Pa.Super. 334, 341 n. 1, 421 A.2d 226, 230 n.1 (SPAETH, J. DISSENTING, 1980).

Accordingly, we affirm the lower court’s order.

      . Instructions were provided the jury under which it could calculate damages based upon the formulai established in the contract for the value of equipment and raw materials plus six percent interest from the date of the breach. Under this instruction, Dynafab could not recover its lost profits. The jury elected to follow the lost profits instruction.


author: SPAETH, Judge:

text:
    447 A.2d 960
    COMMONWEALTH of Pennsylvania v. James HAMM, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed May 28, 1982.
    Reargument Denied Aug. 2, 1982.
    Petition for Allowance of Appeal Denied Sept. 24, 1982.

      Raymond Williams, Assistant Public Defender, Media, for appellant.
    Jean Marie Celia, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for possession of firearms without a license, possession of instruments of crime, and criminal conspiracy. Appellant argues that the evidence was insufficient to support his convictions, and that his arrest was unlawful because the arresting officers arrested him outside of their jurisdiction. We agree that the evidence was insufficient, and therefore do not consider the lawfulness of the arrest.

The test used to determine the sufficiency of the evidence in a criminal case is whether the evidence admitted at trial was sufficient to prove every element of the crime beyond a reasonable doubt. In making this determination, we must view the evidence, and all reasonable inferences from the evidence, in the light most favorable to the Commonwealth. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). Viewed in this light, the evidence was as follows.

Police Officers Steppke and Gretsky were driving down Route 352 in Delaware County when they spotted a Gremlin automobile containing three men. Appellant was the driver of the automobile, which was owned by his girlfriend, and there was one passenger in the front seat and one in the back. The officers recognized the passenger in the back seat as Clifton Berry, for whom an arrest warrant was outstanding. Following the Gremlin at “about half a car length,” they saw Berry pass an “unknown object” to the passenger in the front seat by reaching over the seat between the driver and the passenger. N.T. 6/3/80, 14-16 (Officer Steppke); id. 48 (Officer Gretsky). They then saw the passenger “ben[d] down in a forward motion as to [sic; though?] placing something on the floor in front of him.” Id. 16 (Steppke). The officers did not motion the Gremlin to pull over, for it did so voluntarily. Id. 23, 34-35. Appellant testified that he did this because he recognized the men following him as police officers, even though their automobile was unmarked. Id. 95. After the Gremlin stopped and the passengers got out, the officers saw a .22 caliber revolver on the front floor, on the passenger side. Officer Steppke testified that this weapon could not have been visible to the driver, id. 24; a “console” separated the driver from the passenger side, id. 23. A search revealed a second weapon, a .38 caliber revolver, underneath the front seat.

Since appellant was not shown to have actual possession of the weapons, the issue is whether the evidence was sufficient to prove his constructive possession of them. To prove constructive possession of an item, the Commonwealth must show that the defendant had both the intent and the ability to control the item. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). At the least, the evidence must show that the defendant knew of the existence of the item. Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973).

With respect to the .38 caliber revolver found underneath the front seat, the issue of constructive possession is readily resolved in favor of appellant, for it is settled that we may not infer that appellant knew of the weapon’s existence simply from the fact that it was hidden in the automobile. Commonwealth v. Armstead, supra; Commonwealth v. Townsend, supra; Commonwealth v. Wisor, supra. Cf.: Commonwealth v. Bentley, 276 Pa. Superior Ct. 41, 419 A.2d 85 (1980) (weapon located within “easy reach” of driver); Commonwealth v. Flythe, 273 Pa. Superior Ct. 248, 417 A.2d 633 (1979) (possession of tear gas gun found where defendant leaned down as if to push something under seat and gun was under seat in defendant’s view).

With respect to the .22 caliber revolver, which evidently was the weapon that Berry passed to the passenger in the front seat, a more interesting question is presented. Appellant testified that at no time did he see a weapon in the Gremlin. N.T. 84. If we assume that the jury did not believe this testimony, and that appellant saw the weapon as Barry passed it over the seat, still we may not say that the evidence was sufficient to prove appellant’s constructive possession. This is so because there was no evidence to suggest that appellant knew of the weapon’s existence before it was produced by Berry. The analysis is the same whether a weapon is hidden in an automobile, as was the .38 caliber revolver, or hidden on someone’s person, as the .22 caliber revolver was hidden on Berry until the moment he passed it over the seat.

The evidence of conspiracy was also insufficient.

Under 18 Pa.C.S.A. section 903(a)(1),

[a] person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more pf them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime ....

Under 18 Pa.C.S.A. section 903(e), an overt act in furtherance of the conspiracy must be proved. Although a conspiracy may be proved by circumstantial evidence, Commonwealth v. Finnegan, 280 Pa. Superior Ct. 584, 421 A.2d 1086 (1980), the circumstances proved here were insufficient to demonstrate that appellant conspired to possess the weapons, or that he committed an overt act in furtherance of any other conspiracy. The Commonwealth proved only that appellant was driving an automobile, not his own, that had a weapon hidden in it, and that one of the passengers was carrying a weapon. When appellant recognized the men following him as police officers, he pulled over to the side of the road. This evidence does not “reasonably and naturally justify an inference of guilt on the part of appellant and is not of such a volume and quality [as] to overcome the presumption of innocence . . . . ” Commonwealth v. Perdie, 249 Pa. Superior Ct. 406, 412, 378 A.2d 359, 362 (1977).

The judgment of sentence is reversed and appellant ordered discharged.

MONTGOMERY, J., concurs in the result.

      . Appellant’s argument that his arrest was unlawful, if meritorious, would entitle him to a new trial, Commonwealth v. Fiume, 292 Pa. Superior Ct. 54, 436 A.2d 1001 (1981); Commonwealth v. Novick, 293 Pa. Superior Ct. 241, 438 A.2d 974 (1981); if the evidence was insufficient, he is entitled to discharge.