text:
    456 A.2d 194
    COMMONWEALTH of Pennsylvania v. Henry MAGDON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 17, 1981.
    Filed Feb. 4, 1983.

      Frank J. Muraca, Scranton, for appellant. <
    Ernest D. Preate, Jr., District Attorney, Scranton, for. Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.

      . See also Commonwealth v. Malone, 244 Pa.Superior Ct. 62, 366 A.2d 584 (1976).

   CERCONE, President Judge:

This appeal presents us with the question of whether an individual who was arrested and convicted of a crime may be granted expungement of his conviction records. Consistent with established precedent, we hold today that there is no authority for granting this form of relief to an individual convicted of a crime.

On September 29, 1972, appellant pleaded guilty to a charge of selling marijuana in violation of the Controlled Substance, Drug, Device and Cosmetic Act. Act of April 14, 1972, P.L. 233, No. 64 § 13, 35 P.S. § 780-113 (1977). He was sentenced by the Court of Common Pleas of Lackawanna County to a term of eighteen months imprisonment in the Lackawanna County Prison. After serving three months of the sentence, appellant was released on parole. Appellant complied with all of the conditions of his parole and was completely discharged on September 9, 1974.

On October 10, 1980, appellant filed a petition in the lower court to expunge his criminal record. The Commonwealth opposed the petition and filed an answer in which it stipulated as follows concerning appellant: (1) appellant is 30 years of age; (2) resides with his wife and three minor children, all of whom he solely supports; (3) is a graduate of Scranton Central High School via an external adult education degree program; (4) is a May, 1981, honors graduate of the University of Scranton, with a double major in Psychology and Human Services; (5) has been gainfully employed since 1972, and employed since 1975 by the Community Medical Center of Scranton, Pennsylvania as a Mental Health Therapist; (6) has served as an in-service instructor and a certified C.P.R. instructor at the Hospital; (7) has been a volunteer donor to the Community Medical Center Blood Bank and a member of the Lackawanna County Chapter of the American Red Cross; (8) has not been arrested or convicted of a criminal offense since his conviction in 1972; (9) is of good character and reputation, as evidenced by the testimony of co-workers, friends, neighbors, relatives, and even the arresting Police Chief of the Borough of Throop, Pennsylvania; (10) has applied for numerous jobs since his conviction and has been told approximately 15 times by the employers that the disclosure of his criminal record was the cause of his rejection for said jobs; and, (11) would enter the program for certification as a Physician’s Assistant at the Hahnemann Medical Hospital of Philadelphia, Pennsylvania if his petition to expunge is granted. It is the Commonwealth’s position that this Court is without authority to expunge a conviction record regardless of the subsequent progress and rehabilitation of the petitioner. We agree.

In Commonwealth v. Malone, 244 Pa.Superior Ct. 62, 366 A.2d 584 (1976) this Court held for the first time that upon petition and hearing an accused’s record can be expunged if the evidence at the hearing justifies the expungement. The Court first concluded that it enjoyed authority to order the expungement of an arrest record, and next determined the circumstances under which expungement is proper. In deciding this first point, the Court in Malone stated its rationale as follows:

It seems clear, therefore that our appellate courts recognize the right of an accused to seek expungement of an arrest record. Cf. Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973). Although our research does not indicate a stated legal basis for that right in our appellate decisions, we believe that such a right is an adjunct to due process. The harm ancillary to an arrest record is obvious: “Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual’s reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal; or they may be considered by a judge in determining the sentence to be given a convicted offender.” Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486, 490-91 (1970). See also, Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Cf. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Thus, it is not hyperbole to suggest to punishment despite his innocence. Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement—that is, because an innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record.
Id., 244 Pa.Superior at 69, 366 A.2d at 587-88.

Once the Court determined that expungement of an arrest record may be ordered, it went on to articulate a balancing test to be applied in determining what circumstances the exercise of that authority is warranted. The Court in Malone noted that the balancing of societal interests in the retention of arrest records with the rights of the individual was the salient point of inquiry:

What is ... required is a more delicate balancing of law enforcement needs against the privacy and other interests of affected individuals, and a closer analysis of whether legitimate law enforcement needs may be served in a manner which does not unduly trench upon the individual’s rights. Id., 244 Pa.Superior at 70, 366 A.2d at 588, quoting Utz v. Cullinane, 172 U.S.App.D.C. 67, 520 F.2d 467, 475 n. 10 (1975).

In Commonwealth v. Iacino, 270 Pa.Superior Ct. 350, 411 A.2d 754 (1979) (Spaeth, J. concurring) our Court listed several factors that should be considered in determining the respective strengths of the Commonwealth’s and petitioner’s interests in an expungement case:

These [factors] include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.
Id., 270 Pa.Superior at 358, 411 A.2d at 759.

In Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), our Supreme Court noted that this list of factors was not necessarily exclusive nor exhaustive, that other factors may require examination in particular cases. Moreover,

“If the Commonwealth does not bear its burden of proof [of the petitioner’s guilt] beyond a reasonable doubt ... or admits that it is unable to bear its burden of proof ..., the Commonwealth must bear the burden of justifying [by compelling evidence] why the arrest record should not be expunged.” Commonwealth v. Blaiklock, 291 Pa.Superior Ct. 497, 500, 436 A.2d 226, 227 (1981), quoting Commonwealth v. Wexler, supra, 494 Pa. at 331, 431 A.2d at 880 (emphasis in original). See also Commonwealth v. Briley, 278 Pa.Superior Ct. 363, 368, 420 A.2d 582, 585 (1980); Commonwealth v. Rose, 263 Pa.Superior Ct. 349, 352, 397 A.2d 1243, 1244 (1979); Ober, Expungement of Criminal Arrest Records: The State of the Law in Pennsylvania, 83 Dick.L.Rev. 425, 433 (1978).

Instantly, appellant refers to this balancing test and cites the above-stipulated facts which he alleges tip the scales in his favor. Despite the strength and number of uncontroverted facts which appellant asserts in support of his contention that he is a worthy candidate for expungement, we are unable to examine his record since we cannot erase the stigma of his conviction.

We commend appellant for his post-conviction accomplishments and express dismay concerning his inability to obtain desired employment. However, it is readily apparent from the above quoted passage in Malone that Judge Hoffman’s rationale for allowing expungement of an arrest record was based upon the due process rights of the accused. This due process right to be heard is not abridged by denying an expungement hearing to one actually convicted of a crime because the conviction itself is based upon a hearing in which the accused was adjudged guilty beyond a reasonable doubt, or upon a plea of guilty which waives the many of the formalities of such a hearing. The convict’s trial provided a forum in which he or she enjoyed an opportunity to be heard. No further opportunity for a hearing is required by the due process guarantee.

This decision is consistent with our disposition of an identical problem in Commonwealth v. Zimmerman, 215 Pa.Superior Ct. 534, 258 A.2d 695 (1969). In that case we ruled that an individual, convicted of tax offenses in a bench trial and subsequently sentenced to a one year term of probation, was not entitled to expungement of his conviction record since a record of conviction is capable of erasure only through a Governor’s exercise of his power to grant clemency under Article IV, Section 9 of the Pennsylvania Constitution. Id., 215 Pa.Superior at 536, 258 A.2d at 696.

We reasoned that

[i]t is logical and reasonable that where there is a conviction all steps and evidence leading to that conviction should remain of record. Section 1 of the Act of April 27, 1927, P.L. 414, as amended, 19 P.S. Sec. 1401, provides: “From and after the passage of this act, the Pennsylvania State Police shall continue to procure and file for record photographs, pictures, descriptions, fingerprints, and such other information as may be pertinent, of all persons who have been, or may hereafter be, convicted of crime within this Commonwealth ...” Id.

As a result, we concluded in Zimmerman that the lower court, in ordering the destruction of the petitioner’s criminal record, countermanded the legislative directive to the State Police that such record remain intact under circumstances where it enjoyed no authority to do so.

Appellant’s brief cites this Court to recent cases in this Commonwealth which have allowed expungement of records where there has been some special type of “adjudication” after affording the defendant a hearing or an opportunity for one. In Commonwealth v. Wexler, supra, the Pennsylvania Supreme Court held that a juvenile who entered into a consent decree pursuant to the Juvenile Act was entitled to have her arrest records expunged after the decree expires which usually occurs after a six month period. Similarly, in Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981), the Supreme Court held that a person who successfully completed an Accelerated Rehabilitative Disposition (ARD) program was entitled to have his or her record of arrest expunged. It is readily apparent that these cases involve special programs with specific rehabilitative goals. These programs were set up by the legislature as vehicles in which certain individuals could avoid the stigma of an arrest record “which hangs like the sword of Damocles over one’s life.” Chase v. King, 267 Pa.Superior Ct. 498, 503, 406 A.2d 1388, 1389 (1979) (Hoffman, J., concurring). Thus, the Supreme Court in Wexler and Armstrong has expressly held that which was necessarily implied from those legislative programs: The special rehabilitative policies which underlie this Commonwealth’s A.R.D. and Juvenile Consent Decree programs require that an individual be entitled to expungement of his or her records after successfully completing the program. While placement in an ARD program is not equivalent to a jury’s acquittal, in practical effect it is not vastly different since the Commonwealth is forever barred from pursuing the defendant on the charges lodged against him upon his successful completion of the program.

Obvipusly, the Wexler and Armstrong situations are distinguishable from the case before us today. Appellant herein pleaded guilty and on that basis was adjudged guilty by our Court of Common Pleas. His convictions necessarily preclude him from affirmatively establishing nonculpability in an expungement hearing. As a result, such a proceeding would constitute a waste of judicial resources. Moreover, there is no special legislative policy which helps appellant such as those existing in Wexler and Armstrong. In fact, our Uniform Controlled Substance, Drug, Device, & Cosmetic Act, 35 Pa.S. § 780-119(a) provides for expungement, as of right, of any records of arrest or prosecution for a criminal offense arising under the Act when the charges are withdrawn, dismissed or result in an acquittal. Appellant is not entitled to expungement as of right under this section of the Act because he was not acquitted and the charges were not withdrawn or dismissed. Thus, appellant could not proceed under the Act, but, however, chose to invoke the protection of due process rights as set forth in those areas we have discussed pertaining to expungement cases. Appellant’s due process rights were not infringed and appellant is, therefore, not entitled to expungement of his record. Accordingly, the lower court did not err in denying appellant’s petition. Indeed, it had no authority to do otherwise in view of our holding in Zimmerman, supra. An application for the relief sought by appellant should properly be addressed to the Board of Pardons.

Order affirmed.

      . See Commonwealth v. Briley, 278 Pa.Superior Ct. 363, 420 A.2d 582 (1980).


source: Caselaw Access Project

author: PRICE, Judge:

license: Public Domain

text:
    456 A.2d 198
    COMMONWEALTH of Pennsylvania v. Craig W. DIMMIG, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1981.
    Filed Feb. 4, 1983.

      John J. Kerrigan, Jr., Newtown, for appellant.
    Michael S. Goodwin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.

       (THIS DECISION WAS REACHED PRIOR TO THE DEATH OF JUDGE PRICE.)

   PRICE, Judge:

On December 1, 1978, appellant, Craig W. Dimmig, was arrested at his home and charged with various narcotics offenses, including possession, possession with intent to deliver, and delivery of controlled substances. The information pertaining thereto was encaptioned Information No. 99 of 1979 (“No. 99”). Appellant was tried and convicted of the December 1, 1978 charge before the Honorable William Hart Rufe, III, in the Court of Common Pleas of Bucks County, sitting without a jury on April 30, 1979.

Four days prior to this conviction appellant was again arrested and charged with four complaints of drug offenses and conspiracy. The informations pertaining to these charges were encaptioned Information Nos. 1548 (“No. 1548”), 1549 (“No. 1549”), 1550 (“No. 1550”), and 1551 (“No. 1551”) of 1979.

After each arrest appellant filed a request and motion for a Bill of Particulars, each time stating:

1. Give the exact time, date and place that the offenses alleged in the above-captioned information, counts one through twelve, took place.

The Commonwealth’s responses to each request were identical, i.e., the bill of particulars furnished for No. 99 read exactly the same as the one furnished for Nos. 1548, 1549, 1550 and 1551. Both bills provided:

1. October 17, 1978 at approximately 9:15 p.m. at the Homestead Family Camp Grounds, Green Lane, PA;
October 18, 1978 at 5:10 p.m. at 111 E. Broad Street, Quakertown, PA;
November 9, 1978 at approximately 7:25 p.m. at 111 E. Broad Street, Quakertown, PA;
November 29, 1978 at approximately 6:15 p.m. at the Homestead Family Camp Grounds, Green Lane, PA;
December 1, 1978 between 4:00 p.m. and 8:00 p.m. at 111 E. Broad Street, Quakertown, PA and at the Homestead Family Camp Ground, Green Lane, PA.

Appellant was called for trial on Numbers 1548-1551 on October 25, 1979. Prior to trial, appellant filed a motion to dismiss the informations on double jeopardy grounds. A hearing was held before the Honorable Isaac S. Garb on October 25, 1979 and the motion to dismiss was denied. Immediately thereafter, appellant advised the court of his intention to appeal the order but no request was made for a continuance pending appeal or a supersedeas. Trial began before Judge Garb, sitting without a jury, that same day, October 25, 1979 and verdicts of guilty on information Nos. 1548, 1549, and 1551 were returned. No. 1550 was quashed on the grounds of double jeopardy at the close of the Commonwealth’s case since that information involved the December 1, 1978 narcotics transaction, which had been resolved upon the trial of No. 99. Post-trial, appellant filed motions in arrest of judgment and for a new trial. Those motions are still pending below.

The present appeal is from the interlocutory order denying the pre-trial motion to dismiss Information Nos. 1548, 1549, 1550 and 1551 on double jeopardy grounds.

It has become the established rule in Pennsylvania that an order denying a pre-trial motion to dismiss charges on double jeopardy grounds is immediately appealable. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977), on remand 264 Pa.Superior Ct. 144, 399 A.2d 707 (1979); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). In the present case, the trial court, in its Rule 1925 opinion, expressed serious reservations in regard to our court hearing an interlocutory appeal after the conclusion of the trial. We tend to agree with Judge Garb’s analysis that the particular procedure followed by appellant thwarted the protections of his rights which Bolden, supra, and Haefner, supra, sought to erect.

In Commonwealth v. Edwards, 264 Pa.Superior Ct. 223, 399 A.2d .747 (1979), a similar situation occurred. There, the defendant filed a pre-trial motion to dismiss on double jeopardy grounds and upon its denial went to trial the same day. He had timely filed an interlocutory appeal which was brought before us after the conclusion of the trial. While noting that it is still an open question whether one may await the denial of post-verdict motions to raise on appeal the double jeopardy question, insofar as the multiple trial aspect of that protection is concerned, we answered the appeal on its merits, especially since the procedural issue had neither been briefed nor argued by the parties. Id., 264 Pa.Superior Ct. at 226 n. 2, 399 A.2d at 749 n. 2.

We can appreciate appellant’s counsel’s conscientiousness in giving immediate notice of his intention to appeal to the trial court as there is some authority to suggest that failure to give notice of an interlocutory appeal at this stage of the proceedings may constitute a waiver of the double jeopardy issue. As was the case in Edwards, supra, however, neither of the parties has addressed the procedural issue on which the lower court deliberately elaborated. We cannot speculate on the reasons why appellant proceeded immediately to trial rather than request a supersedeas during the pendancy of the interlocutory appeal. Since the parties offer no argument around which we can adequately frame a rule for this particular procedural situation we will proceed to address the interlocutory appeal on the merits.

Appellant argues that a bill of particulars acts as an amendment to an information and restricts the Commonwealth’s proof to specific dates, times and places. This being the case, appellant contends, trial on the second information is barred by the prohibition against double jeopardy because the transactions specified in the second bill of particulars are identical to those in the first bill. We do not agree with appellant’s interpretation of the effect of a bill of particulars and affirm the denial of the motion to quash.

The function of a bill of particulars is to enable an accused to prepare for trial and to prevent surprise. Commonwealth v. Mervin, 230 Pa.Superior Ct. 552, 326 A.2d 602 (1974); Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972). For this reason our courts have held that the specifics stated in a bill limit and restrict the Commonwealth’s proof at trial. “Normally, it would be reversible error to allow the Commonwealth to present evidence which contradicts the bill of particulars____” Commonwealth v. Bartman, 240 Pa.Superior Ct. 495, 367 A.2d 1121 (1976). Any other interpretation would thwart the bill’s purpose of preventing surprise. Although appellant cites to this same principle he attempts to interpret it as meaning that a bill of particulars actually amends the information and becomes part of the criminal charge. We distinguish between the concepts of restricting proof and amending the information and reject appellant’s theory.

The language in Commonwealth v. Hershman, 171 Pa.Superior Ct. 134, 90 A.2d 314, (1952), aff’d 374 Pa. 311, 97 A.2d 777 (1953), supports our present position:

A motion for a bill of particulars does not question the sufficiency of an indictment but rather assumes its validity. When filed, such bill of particulars does not become part of the indictment. It therefore cannot remedy by way of amendment a fatal defect in an indictment which charges no offense under the law and, similarly, an indictment good on its face is not rendered demurrable or subject to a motion to quash by a defective or inadequate bill of particulars. (Citations omitted). (Emphasis added).

Id., 171 Pa.Superior at 139, 90 A.2d at 317. “The indictment or information is the star and compass of a criminal charge,” Commonwealth v. Nabried, 264 Pa.Superior Ct. 419, 422, 399 A.2d 1121, 1122 (1979); the bill of particulars is merely a pleading to limit the Commonwealth’s proof. Commonwealth v. Hershman, supra.

In the present case, therefore, the information offered in each bill of particulars was broader in scope than the actual trial evidence, i.e., the first bill listed several alleged narcotics transactions but the Commonwealth presented evidence only on the one occurring on December 1, 1978. It was for this offense alone that the appellant was originally convicted. In the second trial, the judge below properly dismissed the charge covering the December 1, 1978 transaction on double jeopardy grounds and properly permitted the charges specified in Information Nos. 1548, 1549, and 1551 to stand, as appellant had not yet faced trial on those charges, i.e., he had not been twice placed in jeopardy for those offenses.

We, therefore, affirm the pre-trial order denying appellant’s motion to quash and dismiss Informations 1548, 1549 and 1551.

      . In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court held that the double jeopardy clause of the fifth amendment was binding on the states through the due process clause of the fourteenth amendment.

      . Notice of appeal was filed in this court on November 5, 1979 in accordance, with Pa.R.App.P. 902.

      . See abo, Commonwealth v. Santiago, 492 Pa. 297, 424 A.2d 870 (1981); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980); Commonwealth v. Clark, 287 Pa.Superior Ct. 380, 430 A.2d 655 (1981); Commonwealth v. Meekins, 266 Pa.Superior Ct. 157, 403 A.2d 591 (1979); Commonwealth v. Bycer, 254 Pa.Superior Ct. 336, 385 A.2d 1367 (1978), rev’d., 485 Pa. 224, 401 A.2d 740 (1979).

      . Judge Garb wrote:
      [In Commonwealth v. Bolden ] the basis for allowing a direct immediate appeal from the denial of a motion to dismiss on grounds of double jeopardy was articulated as being necessary to vindicate the right asserted by the defendant. The right, obviously, is the right not to be tried twice for the same offense____ Those rights not to be twice tried had already been violated when the defendant proceeded to trial without requesting a continuance or a supersedeas. In view of the fact that trial has been held, defendant convicted and post trial motions filed, the interests of judicial efficiency would be served by proceeding through argument and disposition of those motions prior to appellate review particularly since the rights to be protected by Commonwealth v. Bolden, supra and Commonwealth v. Haefner, supra can no longer be vindicated.
      Slip op. at 2-3.

      . For instance, in Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978), the issue was whether the defendant’s third trial for an offense was barred by double jeopardy. Before commencement of trial defendant moved to quash the indictment, the motion was denied and, as this trial took place before the decisions in Bolden and Haefner, no appeal was taken from the ruling, rather the issue was raised in post-trial motions. The supreme court stated, “Because, however, the instant appeal was taken in October, 1974, long before our decision in Bolden, supra, we cannot say that Potter’s failure to appeal from the order denying his motion to dismiss was a waiver of his double jeopardy claim,” Potter, supra, 478 Pa. at 256 n. 3, 386 A.2d at 920 n. 3, thus implying that after these holdings were announced failure to appeal from the interlocutory order could constitute waiver. See also,

        Commonwealth v. Gravely, 486 Pa. 194, 199 n. 2, 404 A.2d 1296, 1298 n. 2 (1979).

      . By so doing we do not repudiate or in any way discourage the policies espoused by our court in Commonwealth v. Splain, 242 Pa.Superior Ct. 503, 364 A.2d 384 (1976), and Commonwealth v. Rabik, 259 Pa.Superior Ct. 456, 393 A.2d 916 (1978) (a defendant must object on double jeopardy grounds at his first opportunity and cannot sit back and put the Commonwealth to the time and expense of presenting its evidence).

      . See also, Commonwealth v. Bellis, 279 Pa.Superior Ct. 421, 421 A.2d 271 (1980), vacated, 497 Pa. 323, 440 A.2d 1179 (1981); Commonwealth v. Russell, 261 Pa.Superior Ct. 161, 395 A.2d 1365 (1978).
      We also note our approval of the analysis of the District Court in United States v. Dierker, 164 F.Supp. 304, 306 (W.D.Pa.1958), wherein it stated:
      Facts alleged even in a Bill of Particulars ordinarily are not part of an Information or a substitute therefore, or an amendment thereto. They neither strengthen nor weaken the Information. They cannot change the offense charged.


author: CAVANAUGH, Judge:

text:
    456 A.2d 201
    Rose M. WISNIEWSKI, Appellant, v. G.W. EHEMANN and Bruce William Ehemann.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1982.
    Filed Feb. 4, 1983.

      Richard J. Fidei, John A. Miller & Assoc. Ltd., Beaver, for appellant.
    Bruce E. Woodske, Beaver, for appellees.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

The issues in this appeal from the denial of motions following a jury verdict for the defendant in an automobile accident injury claim are whether the verdict is against the weight of the evidence and whether in the circumstances of this case the court erred in refusing to charge the jury that there is a permissible inference of negligence when a moving vehicle collides with the rear end of a vehicle which has stopped and has a turn signal in operation. We find that under the circumstances the court erred in refusing the requested charge and grant a new trial.

On December 7, 1974 appellant Rose Wisniewski was on her way to work at the Sherwood Inn located on Brodhead Road, a two lane highway between Aliquippa and Monaca in Beaver County. She came to a stop and, according to her testimony, stood for about one minute with her right turn signal on awaiting the movement of traffic on the Sherwood Inn parking lot to permit her entry. Appellee Bruce Ehemann approached from the rear traveling on a downgrade in rainy weather with a view of a “couple” of hundred feet ahead. Although he applied his brakes he collided with the rear end of appellant’s vehicle.

At the conclusion of the evidence the court began its charge to the jury by ruling on requests for charge. After refusing requests for binding instructions submitted by both parties the court ruled on appellant’s only other point for charge as follows:

In addition, on behalf of the Plaintiff, we are also asked to instruct you “When a moving vehicle has collided with the rear end of a stopped vehicle with its right turn signal on, an inference of negligence arises.” That is likewise refused because we think negligence is a question for you to determine under all the evidence in the case.

The first question we must resolve is whether it is ever proper to charge a jury that they may infer negligence on the part of the driver who they find has struck a standing vehicle on the highway in the rear. We think the law permits such an inference and that the charge is a proper one to which the driver of the forward vehicle is entitled. In Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969) the plaintiff in a case similar to the present one testified that he stopped his vehicle on the highway, that the highway was dry; that after a few seconds his car was struck in the rear by defendant’s vehicle. The court found that while the plaintiff always has the burden of establishing the existence of negligence and its causal connection with the loss suffered, the plaintiff’s testimony established a prima facie case meeting his burden. The principle that a fact-finder is entitled to draw an inference of negligence from the fact of a rear end collision was also recognized in Ingram v. Commonwealth Unemployment Compensation Board of Review, 47 Pa.Commw. 496, 408 A.2d 570 (1979). And in another rear end collision case our court stated with respect to the defendant driver:

Since the automobile which caused the damage was driven by the defendant and was exclusively under his management and control, it was a fair inference for the jury that he failed to observe the degree of care required of him by law and that he therefore was chargeable with negligence which resulted in injury to the plaintiff. The question of defendant’s negligence was fact for the jury to be determined from all the evidence in the case (Cirquitella et ux. v. Callaghan, Inc., supra) and the evidence adequately supports the verdict.

Meek v. Allen, 162 Pa.Super. 495, 498, 58 A.2d 370, 371 (1948).

Since we have determined that facts which support the finding of a rear end collision on the highway are sufficient under Pennsylvania law to create a jury question of negligence it follows that a charge which advises the jury that they are permitted to infer the existence of negligence under such circumstances should ordinarily be given on request. To do otherwise would be to determine that a jury question was established yet fail to tell the jury the import of this determination, so that they may make the inference if they so desire. It would deny the jury the use of a deliberative tool which the law has forged in the plaintiffs behalf. Therefore, it was error for the court to refuse the point in this case.

However, our analysis is not complete for as recently noted by our court:

Appellant’s averment that the trial court’s jury instructions contained error is equally without merit. When reviewing an allegation of error in the court’s charge, we must “look to the charge in its entirety, against the background of the evidence in each case, in order to determine whether an error was committed and whether any prejudice resulted.” Jacob Kline Cooperage, Inc. v. George W. Kistler, Inc., 286 Pa.Super. 84, 89, 428 A.2d 583, 586 (1981). Accord: McCay v. Philadelphia Electric Co., 447 Pa. 490, 499, 291 A.2d 759, 763 (1972); Mount v. Bulifant, 438 Pa. 265, 270, 265 A.2d 627, 630 (1970); Whitner v. Lojeski, 437 Pa. 448, 454, 263 A.2d 889, 892 (1970); Smith v. Chardak, 291 Pa.Super. 173, 175, 435 A.2d 624, 625 (1981); Slavish v. Ratajczak, 277 Pa.Super. 272, 274, 419 A.2d 767, 768 (1980); Albert v. Alter, 252 Pa.Super. 203, 217, 381 A.2d 459, 466 (1977)

Brogley v. Chambersburg Engineering Co. v. Jones and Laughlin Steel Corp., 306 Pa.Super. 316, 452 A.2d 743 (1982).

When we review the charge in the present matter we conclude that prejudicial error occurred when the court refused the point for charge. In the first instance, as set forth above, the court not only denied the requested instruction but in fact read it to the jury and stated that it was refused, thereby negating in the jury’s mind any natural inferences that they might otherwise draw from the facts. Secondly, the court did not, in its charge, spell out any specific duties which the appellee driver owed to the appellant such as his duty to maintain a lookout or keep his vehicle under proper control.

The court further charged the jury that many accidents are pure accidents which give rise to no right of damages whatever, thereby inviting the jury to find that this accident was not the fault of either driver, an unlikely event in the occurrence of a two car collision involving no other instrumentalities. The evidence did not suggest any other reason for the happening of the accident.

We conclude that it was prejudicial error to refuse the requested point for charge and grant a new trial.

Judgment reversed.

      . A better point would read that the jury may infer negligence from the fact of a rear end collision. Of course, the court need not re-form a point for charge which is not wholly a correct statement of the law. However this is not so where, as we here find, the court’s instruction is inadequate on the important issue raised by the point. See McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980).

      . An inference, of course, differs from a presumption and is nothing more than the application of logic to support certain deductions made from relevant evidence. Our cases have noted that whereas a rebut-table presumption forces the defendant to come forth or suffer inevitable defeat on the issue in controversy, an inference does not put the defendant in such a position, i.e., it does not shift the burden of going forward with the evidence or the burden of persuasion. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727, cert. den., 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); Commonwealth v. Sheppard, 229 Pa.Super. 42, 324 A.2d 522 (1974), and in fact, in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974) our Supreme Court adopted § 328(D) of the Restatement (Second) of Torts (1965) which provides that in certain instances negligence may be proved circumstantially; that is, it may be inferred when the event is of a kind which ordinarily does not occur in the absence of negligence; that other responsible causes are sufficiently eliminated by the evidence, and the indicated negligence is within the scope of the defendant’s duty to the plaintiff. See also the discussion of inferences and presumptions in Jones on Evidence (6th Edition) § 3:2; Cirquitella v. C.C. Callaghan, Inc., 331 Pa. 465, 200 A. 588 (1938); Toff v. Rohde, 208 Pa.Super. 411, 222 A.2d 434 (1966).

      . A similar permissible inference is found in situations where our courts have held that the presence of a vehicle on the wrong side of the highway is prima facie evidence of defendant’s negligence. See Cwiakala v. Paal, 427 Pa. 322, 235 A.2d 145 (1967); Richardson v. Patterson, 368 Pa. 495, 84 A.2d 342 (1951). Therefore, it was error for the court to refuse the point in this case.

      . If no particular instructions are requested, the court is responsible for the general effect only, and is required to charge only as to matters of law which are fundamental. See 6 Standard Pennsylvania Practice 398 and 452 and cases therein cited. However, we have examined the entire charge herein to determine the possible prejudicial effect of the denial of the specific point which was requested. The court did charge the jury on a portion of the Motor Vehicle Code (see 75 Pa.C.S.A. § 3361) as follows:
      Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other restrictions or conditions then and there existing. No person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person, nor at a greater speed than will permit him to bring the vehicle to a stop within the assured clear distance ahead.
      However, the court failed to explain how a violation of this provision might relate to this case, and in fact advised the jury generally that it applied to both drivers. Under any interpretation of the evidence, the speed of appellant’s vehicle could not have been a factor in this accident. Finally, the court did not explain to the jury what is meant by the “assured clear distance ahead” language.


author: WIEAND, Judge:

text:
    456 A.2d 204
    COMMONWEALTH of Pennsylvania v. Robert William LAING, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1982.
    Filed Feb. 4, 1983.

      H. Rothman, Pittsburgh, for appellant.
    William G. Martin, Jr., Assistant District Attorney, Franklin, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND and BECK, JJ.
   WIEAND, Judge:

Robert William Laing, Jr. was found guilty by a jury of four counts of aggravated assault, four counts of recklessly endangering another person, one count of simple assault, and leaving the scene of an accident. The convictions were the aftermath of a brawl which occurred in the City of Franklin, Venango County, during the early morning hours of May 22, 1980. Laing was sentenced to serve a term of imprisonment of not less than one nor more than two years, together with a fine of $200.00, for each of three counts of aggravated assault and for each of the four counts of recklessly endangering. The terms of imprisonment were to run concurrently. An additional concurrent term of six to twelve months was imposed for the vehicle offense; and a consecutive five year period of probation was imposed for the remaining aggravated assault conviction. On direct appeal, Laing’s principal contention is that Section 308 of the Crimes Code, 18 Pa.C.S. § 308, which precludes the defense of voluntary intoxication, is unconstitutional. He contends also that the guilty verdicts were against the weight of the evidence and that the court erred in permitting the jury to consider multiple offenses arising out of' each criminal act. There is no merit in these contentions. However, for purposes of sentencing, the convictions for recklessly endangering merged in the aggravated assaults. Therefore, we vacate the sentences imposed and remand for resentencing.

The pertinent facts, as recited by the trial court, are that “[o]n May 22, 1980, defendant left a bar in Franklin and became involved in a fight during the course of which he was hit and kicked several times. Defendant then got in his van and proceeded down the street. Upon seeing the man with whom he had been fighting, defendant drove the van towards him. The man got on the other side of a chain across a parking lot entrance, and defendant stopped the van. Defendant then turned the van around and drove across the street towards a group of people standing on the sidewalk. Defendant drove the van onto the sidewalk, hitting and knocking down one person, striking the hand of another, and forcing two other people to jump out of the way. After proceeding down the sidewalk a short distance, defendant drove back onto the street and left the area.” Other evidence showed that Laing had been drinking heavily for several hours prior to the incident. A toxicologist estimated Laing’s blood alcohol level at between .26 and .27.

Section 308 of the Crimes Code, 18 Pa.C.S. § 308, provides that:

Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

Pursuant to this provision, the trial court excluded expert testimony to the effect that appellant had suffered an alcoholic blackout and was incapable of formulating the requisite intent. Earlier, the court had also disallowed questions of potential jurors concerning their ability and willingness to consider such a defense. Appellant contends that the statute offends constitutional guarantees of equal protection and due process. Similar constitutional attacks on Section 308 have been made and rejected. See: Commonwealth v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981); Commonwealth v. Rumsey, 309 Pa.Super. 137, 454 A.2d 1121 (1983); Commonwealth v. McConnell, 292 Pa.Super. 160, 163-164, 436 A.2d 1201, 1203 (1981); Commonwealth v. Hess, 270 Pa.Super. 501, 505, 411 A.2d 830, 831 (1979); Commonwealth v. Ruff, 266 Pa.Super. 497, 405 A.2d 929 (1979); Commonwealth v. Custor, 30 Bucks Co.L.Rep. 178 (1977), aff’g, 262 Pa.Super. 628, 396 A.2d 849 (1978). We also reject appellant’s present constitutional attack on this section of the Crimes Code and reaffirm the well-established principle that “voluntary intoxication neither exonerates nor excuses criminal conduct.” Commonwealth v. Bridge, supra 495 Pa. at 572-573, 435 A.2d at 153-154 (collecting cases).

Appellant’s second claim is that a new trial should have been awarded because the verdict was against the weight of the evidence. Such a determination is generally committed to the discretion of the trial court. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972); Commonwealth v. Starks, 298 Pa.Super. 213, 215, 444 A.2d 736, 738 (1982); Commonwealth v. Rodriquez, 291 Pa.Super. 239, 243 n. 3, 435 A.2d 888, 890 n. 3 (1981); Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981). A court will grant a new trial on the ground that the verdict was against the weight of the evidence only where it “appear[s] from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail.” Commonwealth v. Barnhardt, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). This, quite simply, was not such a case. Therefore the trial court did not abuse its discretion when it refused to grant a new trial for this reason.

Finally, appellant alleges error in the fact that the trial court submitted to the jury all offenses arising from the same episode. This contention is patently frivolous. It goes almost without saying that an accused may be charged, tried and found guilty of several offenses for but one criminal act. Indeed, “prosecutors generally offer the jury a smorgasbord of offenses.” Commonwealth v. Artis, 294 Pa.Super. 276, 282, 439 A.2d 1199, 1202 (1982). However, it is equally well established that “the imposition of two sentences under the guise of two offenses, where only one act was the basis for charge and sentence, is unlawful ____” Id., 294 Pa.Superior at 281, 439 A.2d at 1201 (emphasis added). The constitutional prohibition against double jeopardy not only bars successive prosecutions for a single criminal act, but it also forbids multiple punishments for the same offense. Commonwealth v. Bolden, 472 Pa. 602, 618, 373 A.2d 90, 97-98 (1977). So also, the doctrine of merger “ ‘prevents double punishment for a lesser offense when it is a necessary ingredient of the greater offense for which the defendant has also been indicted, convicted and punished.’ ” Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 545-546, 420 A.2d 674, 675-676 (1980) quoting Commonwealth v. Nelson, 452 Pa. 275, 280, 305 A.2d 369, 371 (1973) (Nix, J., concurring and dissenting). The trial court, in the instant case, erred when it imposed separate sentences for aggravated assault and recklessly endangering another person. Recklessly endangering was, under the facts of this case, a constituent offense of aggravated assault and, for purposes of sentencing, merged with the more serious offense. Accord: Commonwealth v. Williams, 290 Pa.Super. 209, 215-216, 434 A.2d 717, 720 (1980). Once the Commonwealth had proved the commission of four aggravated assaults with a motor vehicle, no additional facts were necessary to prove the offenses of recklessly endangering the same victims.

The judgment of sentence is vacated, and the case is remanded for resentencing on the convictions for aggravated assault and leaving the scene of an accident.

      . 18 Pa.C.S. § 2702.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 2701.

      . 75 Pa.C.S. § 3742(a). .

      . The trial court' determined that the simple assault offense had merged in an' aggravated assault.

      . Of the offenses with which appellant was charged and ultimately convicted, only aggravated assault required a specific intent. Where an aggravated assault entails an attempt to inflict serious bodily injury, it may properly be categorized as a specific intent crime. See: Commonwealth v. Grassmyer, 266 Pa.Super. 11, 16 n. 1, 402 A.2d 1052, 1054 n. 1 (1979).


author: MONTEMURO, Judge:

text:
    456 A.2d 208
    COMMONWEALTH ex rel. Goldie NOVACK v. Sheldon NOVACK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1981.
    Filed Feb. 4, 1983.

      Joseph W. Lonergran, Norristown, for appellant.
    Marvin L. Wilenzik, Norristown, for appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This case is before the court on appeal from an adjudication of contempt against appellant, Sheldon Novack. The facts of the case are as follows:

Appellant and appellee are husband and wife. Appellee brought a support action against appellant seeking support for herself and two children. At a hearing in July of 1979, before the Honorable William W. Vogel, Judge, Court of Common Pleas, Montgomery County, an order was read into the record which provided for the support of appellee and the two children and the payment of certain sums of money to appellee for medical bills, and reimbursement for medical expenses, and compliance in filing tax return.

On February 21, 1980, appellee filed a petition seeking to have appellant held in contempt for failure to make reimbursement for certain medical expenses, and for committing acts of fraud which had the effect of obligating appellee for debts which appellant had incurred. Appellee also requested reimbursement for attorney’s fees and costs which were incurred as a result of appellant’s contemptuous behavior. The rule to show cause was issued February 22, 1980, and March 13, 1980 was fixed as the time for the hearing. The Honorable Samuel W. Salus, Judge, Court of Common Pleas, Montgomery County, presided over the contempt proceedings. The appellant did not appear at the hearing. No answer was filed, but on the day of the hearing, appellant’s attorney attempted to file Preliminary Objections. The preliminary objections were denied and appellant was held in contempt of court for failure to appear.

A petition for rehearing was granted so that appellant could present a defense, and the hearing took place on May 6, 1980. Following this, a third hearing took place on May 14, 1980 to show why sanctions should not be imposed. At the end of this hearing, appellant was held in contempt of court and ordered to pay appellee the amount of the medical bills and attorney’s fees and costs to purge himself of the contempt.

Appellant initially contends that he was deprived of due process because the contempt procedure was improper. The first question to be posed is whether the contempt order was civil or criminal. Cahalin v. Goodman, 280 Pa.Super. 228, 421 A.2d 696 (1980). It is evident from the coercive nature of the order that the contempt was civil in nature. In a civil contempt proceeding, five steps are necessary for adjudication:

(1) a rule to show cause why attachment should issue; (2) an answer and hearing; (3) a rule absolute; (4) a hearing on the contempt citation; and (5) an adjudication of contempt.

Cahalin v. Goodman, supra.

It is clear from the previous recitation of the circumstances leading to the contempt adjudication that appellant was afforded the due process required in a civil contempt proceeding.

Appellant next contends that the repayment of medical expenses was simply a collateral agreement and not part of the temporary order issued by Judge Vogel at the support hearing. Appellant reasons that his failure to pay the bills, therefore, should not be the subject of a contempt proceeding, but, at most, a cause of action in assumpsit.

A reading of the notes of testimony of the July, 1979 support hearing indicates that Judge Vogel did intend to include the medical expenses in the Order. Judge Vogel merely stated that those obligations would not be present on the computer sheet which listed the $220 per week figure. We therefore find no merit in this contention.

Appellant next contends that only Judge Vogel should have been able to hear the contempt proceedings. When this request was made to Judge Salus, the Judge offered to bring in Judge Vogel but appellant’s counsel refrained from accepting the offer. This issue is therefore waived.

Appellant next contends that because the lower court did not permit any evidence into the record about his financial condition, a finding of willful non-compliance is unjustified. He also argues that the failure to receive evidence about his present ability to pay would effectively preclude him from showing that he could not purge himself of the contempt.

In Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977), the Supreme Court stated that the objective of civil contempt was to enforce compliance and not to inflict punishment. Therefore, a court “may not convert a coercive sentence into a punitive one by imposing conditions that a contemnor cannot perform and thereby purge himself of the contempt.” Barrett, id., 470 Pa. 262, 368 A.2d at 620. In the case before us, it is clear that the appellant did not comply with the original order. He did not reimburse the appellee for the medical expenses. Furthermore, it should be emphasized that at least a portion of these sums was actually paid to the appellant by his insurance company, and he simply did not repay the appellee for the money she had already expended. Therefore, the payment didn’t technically come out of appellant’s earnings. However, the lower court was still obligated to hear testimony regarding the appellant’s “present” financial ability to purge himself of the contempt order and failure to accept this evidence constituted error. See Barrett, supra.

The appellant finally argues that the lower court committed error in awarding reimbursement for attorney’s fees absent any evidence indicating that. such expenses were incurred by the appellee. “It is well settled ... that the court may, in a proceeding for criminal contempt, impose the remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damages he [or she] may have sustained by reason of the contumacious conduct of the offender.” Bata v. Central Penn Mutual Bank of Philadelphia, 448 Pa. 355, 372, 293 A.2d 343, 352 (1972) cert. denied, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973) (quoting from Brocker v. Brocker, 429 Pa. 513, 520, 241 A.2d 336, 339 (1968). Moreover, it is firmly established that attorney’s fees and disbursements necessitated by another party’s civil contempt are among the special damages for which recovery may be had. Bata v. Central Penn Mutual Bank of Philadelphia, supra.

In order to reconcile this point of law with the Barrett objective of enforcing compliance without inflicting punishment, we agree with the appellant that testimony should have been received in regard to this issue. Without such evidence there is no way the lower court could have determined what expenses were incurred and, just as important, whether the appellant was financially able to comply with the order.

For the reasons set forth herein, we remand this case to the lower court to receive testimony regarding the appellant’s financial ability as well as the incurrence and amount of attorney's fees. This court does not retain jurisdiction.

      . Appellant was ordered to pay the following: seven hundred dollars ($700.00) to his wife pursuant to Judge Vogel’s previous order; two hundred seventy-five dollars ($275.00) which represents the proceeds from checks sent to the appellant, which he converted to his own use; one hundred sixty dollars ($160.00) to his wife for his failure to appear and for her additional expenses; and six hundred dollars ($600.00) for attorney’s fees.

      . The evidence showed that the insurance company issued the checks in appellant’s name. According to Judge Vogel’s order, he was to turn the money over to appellee.


author: MONTGOMERY, Judge:

text:
    456 A.2d 211
    William C. RIES and Mallory Ries, husband and wife, v. MTD PRODUCTS, INC., a Corporation; National Independent Distributor Associates, Inc., a Corporation, Luigi P. Nudi, and Patrick V. Nudi t/d/b/a Bike N’ Things, a Pennsylvania partnership, Appeal of MTD PRODUCTS, INC. and National Independent Distributor Associates, Inc.
    Superior Court of Pennsylvania.
    Argued June 15, 1982.
    Filed Feb. 4, 1983.

      John Wesley Jordan, IV, Pittsburgh, for appellant.
    Jay W. Dawson, Pittsburgh, for appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellees instituted this products liability action in the lower court to recover damages arising out of injuries which the Plaintiff wife suffered as a result of an accident which occurred while she was riding a bicycle on May 27, 1976. The cause of action was instituted in assumpsit and trespass against the manufacturer of the bicycle, MTD Products, Inc., (hereinafter referred to as “MTD”), the distributor, National Independent Distributor Associates, Inc. (hereinafter referred to as “NIDA”), and the retailer, Patrick V. Nudi, t/d/b/a Bikes N’ Things (hereinafter referred to as “Bikes N’ Things”). The case was tried by a jury in the lower court. While the trial was in process, the Plaintiffs settled their claim against Bikes N’ Things and executed a joint tort-feasor release as to that Defendant. Before the issues were submitted to the jury for its consideration, the Plaintiffs dropped their claim against NIDA.

The jurors were instructed to answer special interrogatories rather than to render a general verdict. The special interrogatories pertinent to this appeal, and the answers thereto were:

• “1. Was the bicycle in question in a defective condition when manufactured by MTD Products, Inc. and sold by Bikes N’ Things to the plaintiffs on May 8, 1976?
ANSWER: Yes or No. Yes.
2. If your answer to the preceding interrogatory is yes, was the defective condition which you found in the bicycle a substantial factor in bringing about the plaintiffs injuries?
ANSWER: Yes or No. Yes.
3. Do you find that defendant Bikes N’ Things was negligent in connection with its assembly and inspection or subsequent repair and reassembly of the bicycle?
ANSWER: Yes or No. No.

Based upon these answers by the jury, the trial judge indicated he would mold the verdict into a nonsuit in favor of NIDA and a general verdict against MTD and Bikes N’ Things in the amount of the damages fixed by the jury. MTD thereafter filed motions for judgment n.o.v. and for a new trial, which were considered and denied by the lower court en banc. The court subsequently issued an Opinion and Order denying MTD’s motions and stating that Plaintiffs were entitled to a judgment against MTD and NIDA. The instant appeal followed by MTD, raising several claims of error.

Prior to any discussion of the contentions raised by MTD on this appeal, it is appropriate that we briefly note the evidence that was presented at trial by the parties. The record shows that the Plaintiffs established their purchase of the bicycle in question from Bikes N’ Things on May 8, 1976 and the delivery of it a couple of days later. It had been manufactured by MTD, and sold to Bikes N’ Things by NIDA, in the same condition. The final assembly of the bicycle was performed by Bikes N’ Things. That process included the installation and adjustment of the front wheel, handlebars, seat, pedals, and brakes for both front and rear wheels.

About a week after the Plaintiffs received the bicycle, the chain came off while the Plaintiff husband was riding. The chain was replaced by Bikes N’ Things the next day and the bike operated without further problems until May 27, 1976. On that date, the Plaintiff wife was injured when the rear brake failed to function, the bicycle began to “wobble” and the front wheel suddenly turned, all causing her to fall. The Plaintiffs presented an expert witness who opined that the accident was caused by an excessively wavy rear wheel, a loose and improperly assembled rear axle bearing, and an overly tightened rear brake anchor bolt which required a precise adjustment.

The Appellant MTD argues that the lower court in its instructions to the jury incorrectly extended the law in Pennsylvania to a new extreme which establishes a manufacturer’s liability for a defect which first arises after he sells his product to another party in the distribution chain. MTD contends that the law in our Commonwealth does not impose such liability on a manufacturer. Further, MTD maintains that the lower court’s charge compelled the jurors to find the Appellant responsible for the defects which caused the accident, even if the jurors rejected the Plaintiffs’ evidence and fully accepted the defense expert testimony which exculpated the Appellant from guilt for negligence in the manufacture. Finally, MTD asserts that even if it were found that it was liable for Bikes N’ Things’ improper assembly of the bicycle, the liability of MTD would be secondary to the primary liability of Bikes N’ Things. After a careful review of the record and analysis of the legal issues presented, we find no merit in the Appellant’s contentions. We reach that conclusion because it is clear that the jurors determined that MTD was itself negligent in its manufacture of the bicycle in question.

Our analysis of the Appellant’s position prompted our initial reference to the lower court’s charge. There we found, as Appellant contended, the trial judge appeared to have instructed the jury in a way that would advance the scope of a manufacturer’s liability in a manner not previously addressed to our knowledge in any reported decision by a court in our Commonwealth. In that regard, the record shows that the court instructed the jury that a manufacturer could be held liable for defects in a product which it sells in a partially assembled condition, to be further assembled by another, because the manufacturer thereby gives an implied guarantee that the final assembly will be properly performed. The parties to this appeal have each offered lengthy arguments as to whether or not the lower court erred in this statement of the law. We need not resolve that conflict or issue however, as our review of the rest of the record convinces us that the jury did not base its conclusions upon that theory.

The lower court also clearly instructed the jurors that the manufacturer of a product could be held liable for defects in its condition which made it unsafe at the time it left the manufacturer’s control. Specifically, the court used the following words:

“The manufacturer of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for use, and without any condition that would make it unsafe for use. So that if you find that the product at the time it left the manufacturer’s control, lacked any element necessary to make it safe for use or contained any condition that made it unsafe for use, then the product is considered to be in a defective condition, and the manufacturer would be liable for all harm caused by such defect.”

The Appellant does not contend that the Court erred in that statement of the law. We also note that the court further charged the jurors to consider the separate negligence of Bikes N’ Things. The jurors’ affirmative answer to the first special interrogatory, that the bicycle in question was in a defective condition when manufactured by MTD and sold by Bikes N’ Things, certainly leaves open the question of whether the defective condition may have arisen solely due to negligence by Bikes N’ Things. If the special interrogatories provided no further clue to the jury’s conclusions we could certainly surmise that MTD may have been found negligent upon the expanded theory of manufacturer’s liability now challenged on this appeal by the Appellant. However, such conjecture must be dismissed in light of the jury’s negative response to the third special interrogatory: “Do you find that the defendant Bikes N’ Things was negligent in connection with its assembly and inspection or subsequent repair and reassembly of the bicycle?” That conclusion by the jury left no room for question or doubt as to its conclusion that there was negligence by MTD itself in the manufacturing process. Based upon the answer to the third interrogatory we cannot agree with the Appellant’s contention that it was held liable on the basis of a lack of due care by Bikes N’ Things, either in the final assembly or in the repairs which took place.

These conclusions obviously lead to the rejection of the Appellant’s final argument on this appeal, regarding its liability being secondary to that of Bikes N’ Things. That theory was based upon the assertion that the retailer was negligent in its assembly of the bicycle. The jury’s finding as to Bikes N’ Things completely obviates the validity of the Appellant’s final claim.

The judgment of the lower court is hereby affirmed.

      . While both MTD and NIDA are listed as the Appellants on this appeal, no issue has been raised as to the lower court’s order indicating that a judgment should be entered against both, despite the fact that earlier indications were that a nonsuit would be entered for NIDA. It appears that a judgment may have been entered only against MTD. In any event, as this problem has not been raised as an issue by either listed Appellant on this appeal, we cannot address it.

      . The specific charge on this point was:
      "Now, the term 'defective condition’ is not limited to defect in design or manufacture. The seller of such a product must provide it with every element to make it safe for use. Now, where it is contemplated, like the facts show in the case, because the manufacturer assembles part of this product and sends it to somebody else to assemble the rest of it, when it is contemplated that the product would be assembled by another, there is an implied guarantee that such assembly would be properly done, so that a manufacturer of such a product cannot be absolved from liability when he knowingly relies on another to put the product in a finished state.”

      . In contending that the lower court was correct on the point of a manufacturer’s possible liability for the negligence of another in the later assembly of a product only partially assembled by the manufacturer when sold, the Appellee refers us to cases in other jurisdictions which have adopted such a theory. See Caporale v. Raleigh Industries of America, Inc., 382 So.2d 849 (Fla.App.1980); Sabloff v. Yamaha Motor Co., 113 N.J.Super. 279, 273 A.2d 606 (App.Div.), aff’d, 59 N.J. 365, 283 A.2d 321 (1971); and Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964).


author: PER CURIAM:

text:
    456 A.2d 214
    Robert Daniel CROSS, Appellant, v. Nancy Harvey CROSS.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1982.
    Filed Feb. 4, 1983.

      Kenneth W. Kubrick, Pittsburgh, for appellant.

      Robert C. Capristo, Pittsburgh, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from the lower court’s order requiring Robert Daniel Cross, appellant-husband, to pay appelleewife the sum of $215.00 per month, an amount representing the difference between Husband’s alimony pendente lite obligation to Wife ($275.00) and Wife’s child support obligation to Husband ($60.00). For the reasons below, we affirm in part and reverse in part.

The parties hereto were married on September 7, 1969, and separated in February of 1981, when Mrs. Cross left the marital residence. The parties’ two minor children remained with Mr. Cross, at the marital home where they continue to reside. A hearing was held on September 8, 1981, before a Hearing Officer, to determine the parties’ alimony pendente lite, counsel fee and child support claims. The Hearing Officer recommended denials both of Husband’s child support claim and Wife’s alimony pendente lite claim but recommended that Husband pay preliminary counsel fees to Wife’s attorney. Exceptions were timely filed by both parties and argued before the Honorable William L. Standish. Judge Standish subsequently entered an order requiring Husband to pay alimony pendente 'lite in the amount of $275.00 and Wife to pay child support in the amount of $60.00. He denied Wife’s claim for preliminary counsel fees without prejudice. Husband then filed this direct appeal.

Husband first contends that the lower court erred for a variety of reasons in awarding alimony pendente lite to Wife. Our review of such an award is limited to determining whether or not the trial court has manifestly abused its discretion in awarding or denying alimony pendente lite. Wechsler v. Wechsler, 242 Pa.Super. 536, 363 A.2d 1307 (1976).

Husband contends the lower court erred because: (1) both parties are gainfully employed; (2) Husband presently has custody of the minor children; and (3) Husband’s current obligations include payment of a joint mortgage and one child’s orthodontist’s bill. The fact that the Wife is employed must, of course, be considered by the lower court but certainly does not preclude an award of alimony pendente lite. Kordich v. Kordich, 192 Pa.Super. 33, 159 A.2d 274 (1960). The same is true of Husband’s financial obligations, such as the mortgage and the orthodontist’s bill. The record shows that the lower court did, indeed, consider all the relevant financial circumstances of both parties and, thus, we can find no abuse of discretion. The only relevance that Husband’s having custody of the children has is in regard to Husband’s expenses for the children. There is no evidence that the lower court disregarded or disbelieved any of these expenses. Under these circumstances, we cannot say that there was any abuse of discretion and, therefore, affirm the lower court’s award of $275.00 per month alimony pendente lite.

Husband also argues that the lower court erred in assessing an amount for child support without considering the effect of the alimony pendente lite award on the parties’ incomes. We agree. It is well-settled that, in determining a parent’s child support obligation, the court must consider the full nature and extent of the parties’ property interests and financial resources, including, of course, income from whatever source. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981). See, also, Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 403 A.2d 124 (1979) (new spouse’s contributions to family budget); Commonwealth ex rel. Platt v. Platt, 227 Pa.Super. 423, 323 A.2d 29 (1974) (child’s earnings); Commonwealth ex rel. Goichman v. Goichman, 226 Pa.Super. 311, 316 A.2d 653 (1973) (income from funds held in trust for children). We see no reason why the receipt of alimony pendente lite should be treated differently from any other financial resource. We will, therefore, remand this case to the lower court so it can consider all the financial resources, including the alimony pendente lite award. Pawol v. Pawol, 293 Pa.Super. 29, 437 A.2d 974 (1981).

The order of the lower court awarding appellee alimony pendente lite is affirmed; the order for child support is reversed and the case is remanded for reconsideration consistent with this opinion.

Jurisdiction is not retained.

      . The lower court stated, in its opinion, that the alimony pendente lite awarded to the Wife was not considered in determining her child support obligation.


author: CERCONE, President Judge:

text:
    456 A.2d 216
    COMMONWEALTH of Pennsylvania, Appellant, v. Merle Allen BEATTY.
    Superior Court of Pennsylvania.
    Submitted March 22, 1982.
    Filed Feb. 11, 1983.

      Merrill W. Kerlin, District Attorney, McConnellsburg, for Commonwealth, appellant.
    Philip Samuel Cosentino, Chambersburg, for appellee.
    Before CERCONE, President Judge, and WICKERSHAM and ROWLEY, JJ.
   CERCONE, President Judge:

Appellee, Merle Allen Beatty was found guilty of speeding by a district justice and appealed to the Fulton County Court of Common Pleas. After presentation of the Commonwealth’s case in the trial de novo, counsel for appellee demurred to the evidence on the grounds that no proof had been offered that the particular radar device, which was used to detect the speed of appellee’s vehicle, the Model 100 Decatur Gun, had been approved by the Pennsylvania Department of Transportation for use by law enforcement agencies. The Assistant District Attorney then suggested that the court take judicial notice of the Department’s approval. The lower court requested that each side present briefs on the issue of whether the Court must automatically take judicial notice of the face of the approval, or whether the Commonwealth must present a certificate of approval or actually request the court to take judicial notice before that element of the offense would be proved. The Court subsequently decided that the Commonwealth had failed to meet its burden of proving that the radar device was approved and found appellee not guilty. From the adjudication of not guilty, the Commonwealth appeals.

Case law is consistent and long-standing that the Commonwealth may not appeal a verdict of not guilty. This proscription results from the judicial interpretation of the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution and of Article I, § 10 of the Pennsylvania Constitution. That interpretation precludes review of a verdict of acquittal without placing the defendant twice in jeopardy. Sanabria v. U.S., 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43 (1978); Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981).

In the instant case, although it was appellee’s demurrer which initially raised the question of the insufficiency of the Commonwealth’s case, the lower court did reserve its ruling until after the defense presented its case and after the submission of briefs by counsel. In effect, the court’s not guilty verdict was an adjudication of not guilty, and not the grant of a demurrer.

Therefore, the Commonwealth’s appeal in the instant case must be dismissed.

      . 75 Pa.C.S.A. § 3362(a)(2).

      . This approval appears at Volume 10, No. 31 at page 3199 of the Pennsylvania Bulletin. The requirement that radar devices be approved by the Dept, of Transportation appears at 75 Pa.C.S.A. § 3368(d):
      All mechanical, electrical or electronic devices shall be of a type approved by the department....

      . Appellee has not filed an appellate brief in this case.

      . At any rate, this court has extended the right of a defendant to be free from being placed twice in jeopardy to situations in which a court sustains a defendant’s demurrer to the prosecution’s evidence (an ordinarily appealable order) but in addition erroneously enters a judgment of not guilty. Commonwealth v. Kerr, 150 Pa.Superior Ct. 598, 29 A.2d 340 (1942), cited with approval in Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963).


author: SPAETH, Judge:

text:
    456 A.2d 217
    COMMONWEALTH of Pennsylvania v. Edward J. CARNEY, III, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1982.
    Filed Feb. 11, 1983.

      A. Niccolo, Devon, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order dismissing appellant’s appeal from a conviction of failing to return to the scene of a motor vehicle accident. 75 Pa.C.S.A. § 3743 (1977) (summary offense). See generally Pa.R.Crim.P. 67 (Appeals from Summary Judgments). Because the order is not final, we quash the appeal.

It is well-settled that an appeal from an order dismissing an appeal from a conviction in a summary proceeding will lie only if judgment of sentence has been entered. Commonwealth v. Nugent, 291 Pa.Super. 421, 435 A.2d 1298 (1981). Since judgment of sentence has not been entered in this case, we must quash the appeal.

Appellant did not file post-verdict motions in accordance with Pa.R.Crim.P. 1123(c). However, in view of the fact that the lower court did not advise appellant on the record of his right to file such motions, our order quashing the appeal is without prejudice to appellant’s right to file post-verdict motions nunc pro tunc.

The appeal is quashed.

      . When we suggested at oral argument that it appeared that the appeal might have to be quashed, counsel for appellant argued that since, in his view, the evidence was plainly insufficient, it would save time if we were to consider the appeal on its merits. Counsel may be right about insufficiency, but even if he is, that fact does not confer jurisdiction on us to consider the appeal on its merits.


author: BECK, Judge:

text:
    456 A.2d 218
    COMMONWEALTH of Pennsylvania v. Ronald COLEMAN A/K/A Ronald Chevron, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 9, 1981.
    Filed Feb. 11, 1983.

      David J. Slesnick, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   BECK, Judge:

Appellant appeals from the judgment of sentence of the Court of Common Pleas of Allegheny County which imposed a six to twenty-three-month term of imprisonment upon Appellant after Appellant pleaded guilty to twelve counts of receiving stolen property. For the reasons stated herein we vacate the judgment of sentence and remand the case for resentencing.

On appeal Appellant contends that the sentencing court did not impose sentence in conformity with the Sentencing Code, 18 Pa.C.S. § 1301 et seq., and Pa.R.Crim.P. 1405(b).

In sentencing cases our scope of review commences with a determination of whether the sentencing judge adhered to the Sentencing Code guidelines.

If the sentencing judge followed the obligatory procedures enacted to assure careful, intelligent and informed sentencing, then this court may review the sentence only to ensure that there has not been an abuse of the wide discretion accorded the sentencing court ____ [I]f the sentencing judge did not follow the obligatory procedures, then this court must remand for resentencing in accordance with the applicable statutes and rules ____

Commonwealth v. Kraft, 294 Pa.Super.Ct. 599, 601, 440 A.2d 627, 628 (1982) (footnote omitted).

The Pennsylvania concept of indeterminate sentencing requires ‘an implicit adoption of the philosophy of individual sentencing____’ To assist in the proper exercise of judicial discretion in sentencing, the legislature promulgated guidelines in the Sentencing Code____ Under the Sentencing Code, a sentence must be imposed for the minimum amount of time that is consistent with the gravity of the offense, the rehabilitative needs of the defendant and the protection of the public____

Commonwealth v. O’Brien, 282 Pa.Super.Ct. 193, 196, 422 A.2d 894, 896 (1980).

The Sentencing Code affords the court various dispositional alternatives including probation (18 Pa.C.S. § 1322), partial confinement [“work release”] (18 Pa.C.S. § 1324), and total confinement (18 Pa.C.S. § 1325). It is the sentencing judge’s “responsibility ... to evaluate the information regarding the circumstances of the offense and the character of the appellant and then to formulate and explain the sentence in the light of the guidelines specified in the Sentencing Code.” Commonwealth v. Walton, 289 Pa.Super.Ct. 411, 419, 433 A.2d 517, 521 (1981).

At the sentencing hearing counsel for Appellant requested an award of probation for Appellant and enumerated several factors in support of such an award: (1) the twelve counts against Appellant involved misdemeanors, primarily theft of hubcaps, and the stolen items were returned to their owners; (2) Appellant was married and had two dependent children; (3) Appellant had a good employment history, having worked eleven years for United States Steel.

Although the sentencing judge had before him a pre-sentence investigation report submitted in conjunction with Pa.R.Crim.P. 1403 and the remarks of Appellant’s counsel arguing in favor of probation, the judge’s only comments on the record were that “[apparently ... [Appellant had] been stealing for some time, and it [wás] a widespread operation. There were hundreds of items found in his home____ There is no question about it that [Appellant had] to plead guilty ... He certainly couldn’t expect anybody to find him not guilty____”

While the judge’s statements evidence consideration of the nature of Appellant’s offense, they do not indicate that the judge also considered “factors individual to the offender.” Kraft, 294 Pa.Super.Ct. at 603, 440 A.2d at 629. Section 1322 of the Sentencing Code lists twelve factors to be examined by the court in ascertaining whether to grant probation. The judge’s scant statements on the record do not demonstrate that the court evaluated Appellant’s request for probation in light of the Code’s criteria. Here, as in Commonwealth v. Wicks, 265 Pa.Super.Ct. 305, 313-14, 401 A.2d 1223, 1227 (1979),

the court’s statements were insufficient because, in consequence of their brevity and conclusory quality, they do not manifest a consideration of the statutory guidelines for sentencing, nor otherwise explain the reasoning behind the sentences imposed____
... Testimony ... and the contents of a pre-sentence report, cannot constitute a statement of reasons; they rather constitute only the beginning of the process by which the court formulates its statement of reasons____
It is not our province to guess at the lower court’s reasons for the sentence, and we must not substitute our thought processes for what might have been the thought processes of the lower court.

(Emphasis in original.) (Footnotes omitted.) “[T]he mere presence in the record of evidence or testimony upon which the sentencing judge could have relied does not meet the requirement that the judge state what it was that the court did rely on in imposing sentence.” Kraft 294 Pa.Super.Ct. at 605, 440 A.2d at 630 (emphasis in original).

Because “[t]he statement by the sentencing judge in the instant case either fails to inform as to the weight accorded factors individual to [Appellant] ... or demonstrates that the only factor given any weight by the sentencing court was the nature of the crime,” Commonwealth v. Cruz, 291 Pa.Super.Ct. 486, 490, 436 A.2d 220, 222 (1981) (footnote omitted), we vacate the judgment of sentence and remand this case for resentencing in accordance with the Sentencing Code and this opinion.

JOHNSON, J., concurs in result.

      . Pursuant to Pa.R.Crim.P. 1410 Appellant filed a timely motion to modify sentence which was denied.


text:
    456 A.2d 221
    COMMONWEALTH of Pennsylvania ex rel. Barbara DEBEARY v. Robert DEBEARY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 28, 1982.
    Filed Feb. 11, 1983.

      Jimmie Moore, Philadelphia, for appellant.
    Henry J. Lunardi, Philadelphia, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   PER CURIAM:

This is an appeal from an order awarding custody of minor children to their mother. On appeal, the father makes several arguments, which may be compressed into two: that the lower court’s opinion is inadequate; and that the record does not support the lower court’s conclusion that an award of custody to the mother will serve the children’s best interests. We affirm.

The parties have three children: Robin, Barbara, and Robert. In May 1978 the father removed the two younger children from the mother’s home; Robin remained with the mother. The mother petitioned for custody of all three children. The petition was granted nearly four years ago.

-1-

The father is correct, that a remand is necessary where the lower court’s opinion does not adequately explain the reasons for a custody award. See, e.g., Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982); In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981). However, unlike the lower court opinions in other cases where remand was ordered, the opinion here, while brief, does refer to evidence, state the court’s reasoning (instead of merely its conclusions), and discuss demeanor and credibility.

-2-

Nor are we persuaded by the father’s argument that the record does not support the award. To the contrary, the record and the opinion provide a sound basis for the award in favor of the mother: the children’s caretaker in the mother’s absence—maternal grandmother or neighbor— seems more familiar to the children than the father’s girlfriend; witnesses testified to the mother’s suitability as a parent; Robin wanted to stay with her mother; and it is usually better for siblings to stay together.

Also, as mentioned, it has been almost four years since the mother was awarded custody, and on general principle, it is better for children’s lives not to be disrupted after this much time. If during these four years changes have occurred that show that nevertheless it would be better for the children to be with their father, nothing precludes the father, on appropriate petition to the lower court, from proving those changes. See, e.g., Friedman v. Friedman, 224 Pa.Super. 530, 307 A.2d 292 (1973); Commonwealth ex rel. Hickey v. Hickey, 216 Pa.Super. 332, 264 A.2d 420 (1970).

Affirmed.

      . Notice of appeal was filed on February 20, 1979. The record was not transmitted to this court until August 5, 1981. Thereafter, appellant's counsel filed numerous petitions for extensions, as well as a motion to withdraw as counsel, followed by a praecipe to withdraw his petition for withdrawal. Appellant’s brief was not filed until June 1, 1982. The case was argued to this court on September 28, 1982.


text:
    456 A.2d 222
    John B. HOUSEKEEPER v. Stephen FREDERICK and North Penn Music Aides, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1981.
    Filed Feb. 11, 1983.
    Richard W. Rogers, Norristown, for appellants.
    Thomas J. McNally, Lansdale, for appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.

       Died Jan. 30, 1983.

   PER CURIAM:

This appeal presents the question of the proper time for appeal from an award in compulsory arbitration, a matter which has been decided since this appeal was filed. In light of the intervening decisions in Turner v. May Corp., 285 Pa.Superior Ct. 241, 427 A.2d 203 (1981) and Acri v. Wintermeyer, 285 Pa.Superior Ct. 486, 428 A.2d 150 (1981), we hold that the applicable time period for appeal from such an award was thirty (30) days and reverse.

On July 25, 1979, a panel of arbitrators awarded appellee certain relief. On August 22, 1979, appellant filed an appeal from that award. On August 28, 1979, appellee filed a motion to quash the appeal on the grounds that the time period for filing such an appeal was twenty (20) days. The lower court accepted this argument and quashed the appeal. This appeal followed from that order.

In Turner, supra, this court considered all the arguments involved sub judice at length and concluded that the proper time period for appeals from arbitration awards was thirty (30) days. Nor does the shorter local rule help appellee, as decided a month later in Acri, supra.

Since the allowable time period for appeal was thirty days and since the appeal was taken within that time, it follows that the order quashing the appeal below must be and is hereby reversed. Jurisdiction is not retained.

This Decision was reached prior to the death of Judge PRICE.


author: HESTER, Judge:

text:
    456 A.2d 223
    Brian I. KING, Individually and/or as Administrator of the Estate of David J.I. King, Deceased, and on Behalf of All Members of a Class of Individuals Similarly Situated, Appellant v. LIBERTY MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 3, 1982.
    Filed Feb. 18, 1983.

      Morris M. Shuster, Philadelphia, for appellant.
    John Carl Janos, Philadelphia, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   HESTER, Judge:

Appellant, Brian I. King, as Administrator of the Estate of his deceased son, David King, brought a suit in assumpsit against the appellee, Liberty Mutual Insurance Company. This action evolved from an automobile accident in which appellant’s son was fatally injured when an automobile in which he was a passenger struck a utility pole. Since the appellant’s deceased son was listed as an insured under a policy issued by the appellee to the appellant, appellant’s complaint includes an allegation that appellant has been denied work loss benefits pursuant to the provision of the insurance policy and the Pennsylvania No-fault Motor Vehicle Insurance Act. In response to appellant’s suit, appellee filed a motion for judgment on the pleadings which was granted by the lower court on October 23, 1981. It is from this Order that the appellant files this appeal.

The issue presented is whether the estate of a deceased victim is entitled to recover work loss benefits under our No-fault Act. Our court, recently sitting en banc, decided this issue in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982) (Hester, J., Dissenting). The majority of our court held that the estate of a deceased victim is entitled to recover work loss benefits under the No-fault Act.

The order is therefore reversed and the case remanded for disposition not inconsistent with this opinion.