author: TAMILIA, Judge:

text:
    514 A.2d 948
    Joseph A. RUCKINGER, Appellant, v. Vernon D. WEICHT.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Aug. 28, 1986.

      Harold E. Miller, Altoona, for appellant.
    Karen Pfeffer, Hollidaysburg, for appellee.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order dismissing appellant’s action in mandamus.

Appellant posted bail of $8,500 in cash, ten per cent of the named bail for his son. Under Blair County court Rule 481, appellant was required to sign an agreement allowing the bail money to be used to pay any costs, fines or restitution which may result from the charges against his son.

Appellant’s son was found guilty and fined over $2,500. His appeal on that case is pending. While the son remained free on bail he was arrested and incarcerated on other charges. The appellant executed a bail piece authorizing the Blair County Prison warden to take his son into custody. Appellant then requested the return of his $8,500 and appellee, the Blair County Prothonotary and Clerk of Courts refused, based on local Rule 481.

Appellant filed an action in the nature of a mandamus. A hearing was held and the Order appealed from issued.

Appellant attacks the validity of the Blair County rule which requires the party posting bail to consent to the use of the money for purposes other than securing the appearance of the defendant.

We agree with appellant that the local rule is not in accord with the Rules of Criminal Procedure or the underlying purpose of bail and reverse.

The Pennsylvania Constitution, in Article 1, § 14, mandates all persons have a right to be released on bail prior to trial in all cases except those involving capital offenses. Commonwealth v. Truesdale, 449 Pa. 325, 327, 296 A.2d 829, 831 (1972); Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963). See also 42 Pa.C.S.A. § 5701.

The right to release before trial is thus predicated upon the accused providing adequate assurance, in the form of bail, that he or she will appear for trial. Truesdale, supra; Commonwealth v. Heiser, 330 Pa.Super. 70, 478 A.2d 1355 (1984). The fundamental purpose of bail is, therefore, established as being to assure the presence of the accused at trial.

There are also considerations which support the liberal granting of bail.

In the absence of evidence the accussed will flee, certain basic principles of our criminal law indicate bail should be granted; these are (a) the importance of the presumption of innocence; (b) the distaste for the imposition of sanctions prior to trial and conviction and (c) the desire to give the accused the maximum opportunity to prepare his defense.

Truesdale 449 Pa. at 335, 296 A.2d at 834-835. See also Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).

One of the underlying tenets of our legal system is the presumption of innocence. Bail allows an accused to be free of confinement until guilt is established. Without a liberal granting of bail, those wrongly accussed would frequently be punished by a period of incarceration while awaiting trial.

While the court has freedom within the proper use of its discretion to establish the amount of bail and set conditions, this must relate to the likelihood of flight by the accused. Truesdale, supra; Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983); Pa.R.Crim.P. 4004.

A local rule such as the one presently before us conditions the granting of bail in an improper manner. Bail is to insure the appearance of the accused, not to guarantee payment of fines, costs or restitution after conviction. Commonwealth v. McDonald, 476 Pa. 217, 382 A.2d 124 (1978). The principles discussed in Truesdale, supra, indicate the importance of the right to bail. Provisions not related to insuring the presence of the accused at trial improperly restrict the right to be free prior to trial.

Additional support is found in the Pennsylvania Rules of Criminal Procedure which have been established to govern criminal proceedings in all state courts.

Bail is first mentioned in the Rules of Criminal Procedure in Rule 3(b) where the definition is set forth as follows:

Rule 3 Definitions
(b) Bail is the security required and given for the release of a person in the custody of the law, conditioned upon a written undertaking that the person will appear when required to do all other things stipulated therein.

The rules deal with the administration of bail proceedings in Chapter 4000. Rule 4006 provides for six types of bail: (a) R.O.R. or nominal bail, (b) U.S. currency, (c) a sum of money not to exceed 10 per cent of the amount of bail set, (d) bearer bonds of the U.S. government or the Commonwealth of Pennsylvania or any political subdivision of the Commonwealth, (e) realty located within the Commonwealth, (f) surety bond of a professional, licensed bondsman.

The rules go on to spell out the conditions of bail in Rule 4013 which states:

Rule 4013. Conditions of Bail
When a person is admitted to bail, the conditions of the bail bond shall be that such person will:
(a) Appear before the issuing authority or court at all times required until full and final disposition of the case;
(b) Submit to all orders and process of the issuing authority or court;
(c) Give written notice to the issuing authority, the clerk of courts, the district attorney, and court bail agency or other designated court bail officer, of any change of address within forty-eight (48) hours of the date of such change.
(d) Comply with any specific requirement of release which may be reasonably imposed by the issuing authority or court to assure compliance with the conditions of bail, such as satisfactory participation in a designated program;
(e) Neither do, nor cause to be done, nor permit to be done on his or her behalf, any act proscribed by Crimes Code section 4952 (relating to intimidation of witnesses or victims) or section 4953 (relating to retaliation against witnesses or victims) (18 Pa.C.S.A. 4952, 4953); and
(f) Obey such other conditions as the issuing authority or court may impose, or any reasonable conditions as the court bail agency or other designated court bail officer may impose with leave of court.

Provisions for the return of bond funds are in Rule 4015 which provides:

Rule 4015. Receipt for Deposit; Return of Deposit
(a) The issuing authority or the clerk of the court who takes a deposit of bail other than a surety bond, shall furnish to the depositor an itemized receipt of such bail, and note on the transcript or docket the amount deposited, and by whom deposited. When the issuing authority takes such deposit of bail, he shall deliver it with the transcript to the clerk of the court, who shall place such deposit in a bank or other depository approved by the court and keep proper records thereof. Upon full and final disposition of the case, the issuing authority or the clerk of the court shall return the deposit promptly after twenty (20) days, less any fees or commissions authorized by law.
(b) When a sum of money equal to a percentage of the full amount of the bail has been deposited, the issuing authority or clerk of court shall return the same to the depositor within twenty (20) days after full and final disposition of the case, less a reasonable charge relating to the costs of administering the percentage cash bail program, (emphasis added)

In viewing these various sections of the Rules of Criminal Procedure it becomes more apparent that the function of bail is solely to secure the appearance of the accused. The comments to Rule 4006 provide that the list of permissible forms of bail is intended to be exclusive. The conditions set forth in Rule 4013 make no mention of guaranteeing potential fines or restitution. Likewise Rule 4015(b) calls for the return of the funds deposited less a reasonable administrative charge without imposing any other condition.

Appellees argue that the rules do not specifically prohibit local rules from adding conditions to the granting of bail and thus they are proper. We do not agree. Although Pa.R.Crim.P. 1(b) authorizes the adoption of local rules of procedure, this is restricted by Pa.R.Crim.P. 6(b) which states:

Rule 6 Local Rules
(b) Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.

Here the rule established is inconsistent with the rules governing bail in adding conditions which do not relate to requiring the appearance of the accused at trial. In addition the rule curtails the Pennsylvania Constitutional mandate that all persons have a right to be free prior to trial if their appearance is assured.

The fact that a third party paid the bail and signed a written agreement consenting to the application of the bail to fines, costs, etc. does not alter our finding but rather reinforces it.

A parent entering into such an agreement to secure the release of their child may be under extreme duress at such a time. The implications of agreeing to have the cash posted used to pay fines and restitution would not be clear since the amounts owed certainly would not be established until sentencing (and they could be in the thousands of dollars). If the risks are clear to the third party, they may well serve as a basis for refusing to make the funds available to the accused even though the third party is willing to assume the risk of the accused appearing for trial.

In any event, having a party agree to the requirements set forth in the local rule does not make the rule proper and enforceable. As we have stated the rule places improper restrictions on the granting of bail and cannot stand.

We reverse the Order of the lower court and direct the release of the funds held, minus administrative costs.

Order reversed, funds to be released.

      . Bail after a finding of guilt is governed by Pa.R.Crim.P. 4010.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    514 A.2d 1374
    Barbara KATZ, Appellee, v. Harold KATZ, Appellant. Barbara KATZ, Appellant, v. Harold KATZ, Appellee. (Four Cases)
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed Aug. 19, 1986.
    Reargument Denied Sept. 30, 1986.

      Theodore R. Mann, Philadelphia, for appellant in No. 1457 and for appellee in Nos. 1730-1733.
    David Hoffstein, Philadelphia, for appellant in Nos. 1730-1733 and for appellee in No. 1457.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

The principal issue in this appeal is whether divorce hearings pertaining to equitable distribution of marital property may be closed to the public. This is an issue of first impression and involves conflicting interests. The trial court concluded that it had been divested of discretion by the decision of the Court of Appeals of the Third Circuit in Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984) and ordered that the hearings be held in an open courtroom accessible to the public. We reverse and remand to permit the trial court to determine whether good cause exists for closing the hearings.

Harold Katz and Barbara Katz were married on August 27, 1974. No children were bom of this union, but each party had three minor children by a prior marriage. During the early years of their marriage, the parties enjoyed a comfortable, middle-class lifestyle. Although Harold had been involved in a weight loss business prior to the marriage, after marriage the nature of the business changed and became Nutri/System, Inc., which has developed into a multi-million dollar corporation. The modest lifestyle of the couple changed as well. Harold and Barbara entertained often and lavishly, traveled extensively, and purchased a thirty-five room mansion, maintained by a full-time domestic staff. Their annual income rose from approximately $25,000 in 1974 to more than five million dollars in 1981. In that year the parties separated. It was after their separation that Harold purchased the Philadelphia 76ers Basketball Club, Inc.

On April 6,1981, Barbara instituted an action for divorce, asserting, as well, claims for economic relief. Hearings on the equitable distribution claim were scheduled to begin on February 4, 1985. Prior to commencement of the hearings, Barbara requested that the equitable distribution hearings be held in open court. Harold objected to his wife’s request. During an in-chambers conference the trial court ruled that the hearings would be closed. Philadelphia Newspapers, Inc. (P.N.I.) then filed an appeal to this Court, challenging the closure order. The Honorable Phyllis W. Beck, motions court judge, directed that an immediate hearing be held before the trial court on the closure issue. At that hearing Katz advanced three reasons for closing the equitable distribution hearings. The trial court, as we have observed, felt constrained by Publicker Industries, Inc. v. Cohen, supra, to hold that the media had a right of access to the equitable distribution hearings. Therefore, the court entered an order on May 7, 1985, which directed that all future hearings in the divorce action be held in an open courtroom. Katz appealed.

In the meantime, Katz had filed a petition to bifurcate the request for divorce from the economic claims. The motion was granted, after hearing, on May 30, 1985, and a decree in divorce was entered on May 31, 1985. Barbara has filed appeals from the order granting bifurcation, from the denial of exceptions thereto, from the decree of divorce and from an order denying exceptions to the decree in divorce. All such appeals have been consolidated for purposes of review.

Before considering Katz’s appeal from the trial court’s order directing that equitable distribution hearings be conducted in open court, we must determine the appealability of such an order. “The question of the appealability of an order goes to the jurisdiction of the Court requested to entertain the question____ Questions relating to jurisdiction are not waived by the failure of the parties to raise them, and may properly be raised by the court sua sponte.” Fried v. Fried, 509 Pa. 89, 92, 501 A.2d 211, 212 (1985) (citations and footnote omitted).

“[A]n appeal will lie only from a final order unless otherwise permitted by statute or rule.” Id., 509 Pa. at 93, 501 A.2d at 213; Beasley v. Beasley, 348 Pa.Super. 124, 126, 501 A.2d 679, 679 (1985). A final order is one which either ends the litigation or disposes of the entire case. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-545 (1978). “Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical, effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.” Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975); Beasley v. Beasley, supra. See also: Praisner v. Stocker, 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258 (1983). An order directing that the trial of equitable distribution claims remain open to the public and press is obviously not a final order. Neither party is put out of court, and the order does not determine or end the economic claims. Cf. Beasley v. Beasley, supra, 509 Pa. at 126, 501 A.2d at 680.

This, however, does not end our inquiry. The courts of Pennsylvania have adopted and followed the rule announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which recognizes an exception to the final judgment rule. Fried v. Fried, supra 509 Pa. at 94, 501 A.2d at 214; Pugar v. Greco, supra 483 Pa. at 73, 394 A.2d at 545; Beasley v. Beasley, supra; Praisner v. Stocker, supra 313 Pa.Super. at 342, 459 A.2d at 1260-1261.

Under Cohen, an order which is separable from and collateral to a cause of action may become appealable under certain circumstances. Those circumstances, all of which must be present, are as follows: “[the order is] separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corporation, supra, 337 U.S. at 546, 69 S.Ct. at 1225-1226, 93 L.Ed.2d at 1536. See also: Pugar v. Greco, supra; Bell v. Beneficial Consumer Discount Company, supra, 465 Pa. at 228-229, 348 A.2d at 736; Praisner v. Stocker, supra.

Beasley v. Beasley, supra.

An order relating to the public or private nature of equitable distribution hearings is separable from and collateral to the main action for equitable distribution. C. v. C., 320 A.2d 717, 720 (Del.1974). The right alleged, i.e., the privacy to be afforded equitable distribution hearings, is too important to be denied review because the right, if there is one, is central to the manner in which the hearings will proceed. “The third factor requires a finding that the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. The corollary is that a claimed right which can be compensated through the final judgment is one that is not irreparably lost.” Fried v. Fried, supra. If review of the present order is postponed until after the final order of equitable distribution has been made, any information obtained from the hearings and made public will not be subject to recall, and the claimed right of privacy will have been lost. Moreover, it will not be possible to fashion a decree of equitable distribution which will compensate Katz for the harm, if any, which will be caused by a disclosure of his marital and financial circumstances. We conclude, therefore, that the order directing public hearings is appeal-able as a collateral order under Cohen v. Beneficial Industrial Loan Corp., supra.

Generally speaking, trials in courts of justice must be conducted in public. See: 75 Am.Jur.2d Trial § 33 (1974). The openness of proceedings has generally been raised in the context of criminal trials, and with respect thereto the courts have recognized both a common law and constitutional right of public access. See: Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973, 991-992 (1980); Commonwealth v. Contakos, 499 Pa. 340, 343-345, 453 A.2d 578, 579-580 (1982); Commonwealth v. Hayes, 489 Pa. 419, 426-427, 414 A.2d 318, 321 (1980).

“The requirement of public civil trials, though not an enumerated or even a penumbral constitutional guarantee, is nevertheless as old as the guarantee in criminal proceedings.” Comment, All Courts Shall Be Open: The Public's Right to View Judicial Proceedings and Records, 52 Temple L.Q. 311, 311 (1979) (footnote omitted). Until recently, it was clear that the right of access to civil proceedings was a common law right and did not rest upon judicial interpretation of the First Amendment guarantee of freedom of the press. The First Amendment, it was held, did not confer upon the media a right of access to civil trials greater than the right of access enjoyed by the general public. This view was articulated by the United States Supreme Court as follows: “ ‘Once beyond the confines of the courthouse, a newsgathering agency may publicize, within wide limits, what its representatives have heard and seen in the courtroom. But the line is drawn at the courthouse door; and within, a reporter’s constitutional rights are no greater than those of any members of the public.’ ” Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1318, 55 L.Ed.2d 570, 587 (1978), quoting Estes v. Texas, 381 U.S. 532, 589, 85 S.Ct. 1628, 1663, 14 L.Ed.2d 543, 584 (1965) (Harlan, J., concurring). See also: United States v. Criden, 648 F.2d 814 (3d Cir.1981).

The common law rule, which also confers a public right of access to court records, is that every person is entitled to access “provided he has an interest therein for some useful purposes and not for mere curiosity.” C. v. C, supra at 723; 24 Am.Jur.2d Divorce and Separation § 341, at 410 (1983). This common law right of access, of course, is not absolute. In re National Broadcasting Co., 653 F.2d 609, 613 (D.C.Cir.1981). Every court has supervisory powers over civil proceedings in progress before it and may deny access where such access may become a vehicle for harmful or improper purposes. See: Nixon v. Warner Communications, Inc., supra 435 U.S. at 598, 98 S.Ct. at 1312, 55 L.Ed.2d at 580. Thus, the public may be “excluded, temporarily or permanently, from court proceedings or the records of court proceedings to protect private as well as public interests: to protect trade secrets, or the privacy and reputations [of innocent parties], as well as to guard against risks to national security interests, and to minimize the danger of an unfair trial by adverse publicity.” In re National Broadcasting Co., supra at 613. “These are not necessarily the only situations in which public access ... can properly be denied. A bright line test has yet to be formulated. Meanwhile, the decision as to public access must rest in the sound discretion of the trial court.” Commonwealth v. Frattarola, 336 Pa.Super. 411, 426, 485 A.2d 1147, 1155 (1984) (Wieand, J., concurring).

This is also the present state of the common law right of access to civil proceedings in Pennsylvania. The Rules of Civil Procedure grant discretion to a trial court to exclude the'public from civil proceedings in the interest of “public good, order or morals.” Pa.R.C.P. 223(a)(4). The Divorce Code seems to confirm by implication the discretionary right of a trial court to close divorce hearings. Section 305(a) permits a party, after service of the divorce complaint, to request a jury trial on “any matter of fact that is affirmed by one and denied by the other” by directing a rule to show cause to the opposite party. Section 305(b) permits the trial judge in his or her discretion to discharge or make the rule absolute. However, “such rule shall not be made absolute when, in the opinion of the court, a trial by jury cannot be had without prejudice to the public morals.” Id. The Divorce Code does not otherwise address whether divorce hearings may be closed or whether they must, in all events, remain open to the public. Our research has disclosed no appellate court decision which has applied Pa.R.C.P. 223(a)(4) or the provisions of the Divorce Code to determine under what circumstances a court may exclude the public from hearings in an action for divorce.

However, the Supreme Court of Rhode Island, in a pretwentieth century decision, discussed this qualified, common law right of access in the context of domestic relations cases as follows:

[I]t is clearly within the rule to hold that no one has a right to examine or obtain copies of public records from mere curiosity, or for the purpose of creating public scandal. To publish broadcast [sic] the painful, and sometimes disgusting, details of a divorce case, not only fails to serve any useful purpose in the community, but, on the other hand, directly tends to the demoralization and corruption thereof, by catering to a morbid craving for that which is sensational and impure. The judicial records of the state should always be accessible to the people for all proper purposes, under reasonable restrictions as to the time and mode of examining the same; but they should not be used to gratify private spite or promote public scandal. And, in the absence of any statute regulating this matter, there can be no doubt as to the power of the court to prevent such improper use of its records.

In re Caswell, 18 R.I. 835, 836, 29 A. 259, 259 (1893). Whether divorce hearings are required to be open to the public was also considered by the Supreme Court of Delaware. In C. v. C, supra, the Court held that a statutory provision at 13 Del.C. § 1506, which provided that “[n]o record or evidence in any case shall be impounded or access thereto refused,” was not intended as a public access statute applicable to actions of divorce but was designed rather to guarantee the litigants absolute access to the judicial file in their own divorce cases. The Court held that a trial court could properly seal a divorce file from access by the general public pursuant to the common law rule of qualified access to public records. Id. at 727. Under this rule, the public and the media have a right of access to divorce files if they can demonstrate a legitimate interest for some useful purpose. Id. The Delaware Court observed further that the state constitutional guarantee that “[a]ll courts shall be open ...” was not directed to the issue of public trial but rather derived from the Magna Carta provision that “We will sell to no man, we will not deny to any man, either justice or right.” Id. at 728.

The United States Supreme Court, as we have observed, has not held that the First Amendment freedom of the press guarantee establishes a constitutional right of media access to civil trials. See: Richmond Newspapers, Inc. v. Virginia, supra 448 U.S. at 580 n. 17, 100 S.Ct. at 2829 n. 17, 65 L.Ed.2d at 992 n. 17 (Plurality Opinion); Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 611, 102 S.Ct. 2613, 2622, 73 L.Ed.2d 248, 260 (1982) (O’Connor, J., concurring). More recently, although recognizing that it was acting without prior Supreme Court precedent, the Court of Appeals for the Third Circuit, in Publicker Industries, Inc. v. Cohen, supra, held “that the ‘First Amendment embraces a right of access to [civil] trials ... to ensure that this constitutionally protected “discussion of governmental affairs” is an informed one.’ ” Id. at 1070, quoting Globe Newspaper Co. v. Superior Court for the County of Norfolk, supra 457 U.S. at 604-605, 102 S.Ct. at 2619, 73 L.Ed.2d at 256 (discussing criminal trials). The Court added, “[although the right of access to civil trials is not absolute, nevertheless, as a First Amendment right it is to be accorded due process protection that other fundamental rights enjoy.” Id. The Court concluded, therefore, that there is a presumption in favor of openness. Consequently, a party seeking closure has the burden of showing that the proceedings will involve material of the type which courts will protect and that there is good cause for closure. “Good cause,” the Court said, “is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure.” Id. at 1071, citing Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F.Supp. 866, 891 (E.D.Pa.1981). The Court of Appeals held, finally, that the trial court had “abused its discretion by closing [an injunction hearing] without explaining its reasons.” Id. at 1072.

The decisions from jurisdictions outside Pennsylvania which have applied the common law right of access to divorce proceedings suggest that divorce proceedings are the type of proceedings which have received protection against public scrutiny because the details thereof involve matters which are essentially private in nature and which lack any useful, public purpose. Trials of divorce issues frequently involve painful recollections of a failed marriage, details of marital indiscretions, emotional accusations, and testimony which, if published, could serve only to embarrass and humiliate the litigants. While the public has a right to know that its courts of justice are fairly carrying out their judicial functions, no legitimate purpose can be served by broadcasting the intimate details of a soured marital relationship. Similarly, the public can have little, if any, legitimate interest in the identification, evaluation and distribution of private property which the marriage partners have accumulated while they lived together and cohabited. Merely because marital property has been accumulated because of the financial successes achieved by an astute businessman does not alone justify opening equitable distribution hearings to the public. Cf. C. v. C., supra at 729 (“the mere fact that a divorce litigant is a public official does not in itself necessarily justify the public disclosure of the intimate details of his marital history. On the other hand, if the evidence in a divorce case relates to a litigant’s activities in his public capacity, that may well be an appropriate ground for the exercise of discretion and the grant of access [to the record], in whole or in part, to the press.”).

We hold, therefore, that divorce hearings are the type of proceedings which courts may close to protect the rights of the parties. The discretion of the court to close a divorce hearing, however, is not absolute. “Good cause” must be established before proceedings can be closed. What constitutes “good cause” may well depend upon whether the right of access is ultimately determined to be a common law right or a right guaranteed by the First Amendment. For present purposes, however, we will adopt and apply the standard articulated in Publicker Industries that closure is warranted where “disclosure will work a clearly defined and serious injury to the party seeking closure.”

Katz asserted several interests which he contended would be injured if the public were to be granted access to hearings being held to identify and distribute marital property. These included: (1) the right to have his personal life and family matters remain private; (2) the danger of harassment or physical injury if his property and financial holdings were made public; (3) the right to nondisclosure of his income tax returns; and (4) the danger that potential investors in Nutri/Systems, Inc. would be misled to their detriment by testimony attempting to place a value on the corporate stock. The trial judge did not make specific findings of fact, but the opinion which he wrote implies that he was willing to accept as valid at least the first two concerns.

With respect to the first reason for closure, the trial court said:

In contrast, Defendant’s complaint that his private life should not be bandied about in public is certainly legitimate. The United States Supreme Court has held that the right of marital privacy is within the penumbra of the specific guarantees of the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479 [85 S.Ct. 1678,14 L.Ed.2d 510], 1965. Defendant is entitled to protection from the prying eyes of the public in terms of what goes on in his own home.[]

Trial Court opinion at 4.

With respect to the second reason advanced by Katz for closure, the trial court said:

Defendant averred that continued discussion of his wealth would endanger his family. The Court sympathizes with Defendant on this point. While Defendant, as owner of the Philadelphia 76ers, a professional basketball team, and the visible head of a successful corporation, is in a very real sense a public figure, he need not be exposed more than is necessary to the less enviable features which accompany that public status. The more publicity Defendant receives in the setting of this action, the more likely it becomes that he and his family will be subjected to some form of harassment. This should not be.

Trial Court opinion at 5-6.

Despite the fact that the trial judge appears to have concluded that these two reasons warranted a closing of the hearings, he ordered that public hearings be held in an open courtroom because he was of the opinion that the Publicker Industries decision had divested him of discretion. This, we conclude, was an incorrect reading of Publicker Industries. As we have seen, the Publicker Industries Court reversed an order closing a preliminary injunction hearing because the trial court had failed to give reasons for its order. The Court did not otherwise command that all civil proceedings must invariably be open to the public.

We hold, therefore, that the trial court erred when it concluded that it had been divested of discretion and could not exclude the public from the equitable distribution hearings. Both the decision in Publicker Industries and Pa.R.C.P. 223(a)(4) direct that the trial court determine whether there is good cause for excluding the public from civil proceedings. This determination must necessarily depend upon the exercise of the trial court’s discretion, which will not be reversed absent an abuse thereof. So that its order may be reviewed on appeal, however, the trial court must state its reasons for the action which it takes.

In the instant case, the trial judge’s opinion leaves us with the impression that, if he were given discretion, he would exclude the public from the equitable distribution hearings in this divorce action. Because he has not expressly said so and also because he has made no specific findings, however, we cannot be certain. Therefore, we find it necessary to remand so that the trial court may exercise its discretion by entering an appropriate order, together with reasons therefor, consistently with the foregoing opinion.

We turn next to the several appeals filed by Barbara Katz, all of which are directed to the alleged impropriety of the trial court’s entry of a bifurcated decree in divorce. “[W]e will review [trial] court decisions pertaining to bifurcation by using an abuse of discretion standard. So long as the trial judge assembles adequate information, thoughtfully studies the information, and then explains his decision regarding bifurcation, we defer to his discretion.” Wolk v. Wolk, 318 Pa.Super. 311, 318, 464 A.2d 1359, 1362 (1983). In Wolk, our Court required that the trial judge examine both advantages and disadvantages of bifurcation before determining in each case whether bifurcation was appropriate.

The trial court, in determining that bifurcation was proper in the instant case, relied upon the following:

When the parties separated, the plaintiff received a car, a large amount of jewelry, a plethora of household furnishings, art works, a substantial lump sum from the sale of some bonds, plus an additional sum of $350,000.00, specifically for the purpose of purchasing a house. She also received other items not here enumerated. Currently, Plaintiff lives in a penthouse condominium in THE Philadelphian, she receives Seven Thousand ($7,000.00) Dollars per month, tax free alimony, she is covered by adequate health insurance, and is protected by an agreement for a Four Million ($4,000,000.00) Dollar fund, and by testimony of the Defendant in Open Court under oath, that should he die before equitable distribution is completed, the Dead Man’s Rule is to be waived, and as far as the Defendant’s assets are concerned, Plaintiff is to maintain the identical position she held at the Petition to Bifurcate Hearing held on May 29, 1985. It would therefore appear that the Plaintiff has not been prejudiced in any manner.

Trial Court opinion at 2. The facts in this case, therefore, were vastly different than the sparse testimony and bare conclusions which this Court found inadequate in Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985), and Hall v. Hall, 333 Pa.Super. 483, 482 A.2d 974 (1984). In the present case, the trial judge had presided over the litigation following its inception in 1981 and was familiar with the background and circumstances of the parties. The bifurcation hearing, moreover, produced a wealth of evidence. The parties had restructured their private lives following separation and had even filed separate income tax returns after 1981. The testimony revealed that Katz had given his wife $350,000 to purchase a new home and that after June of 1982 he had made and was continuing to make monthly payments of $7,000 as support. These payments were to continue by agreement until equitable distribution was decreed. Significant testimony was also received regarding Katz’s financial status, his holdings, and his net worth. The court observed that a four million dollar fund, consisting of various securities, had been set aside and was being held pursuant to Barbara’s petition for special relief under sections 401(c) and 403(a) of the Code. The court emphasized the fact that the two had lived separate and apart for more than three years and that the marriage was irretrievably broken. Katz is living with another woman and has fathered a child with her. Therefore, the trial court did not abuse its discretion by concluding that the parties should be divorced. Should Katz die before entry of an order decreeing equitable distribution, this Court has held, the action for equitable distribution will not abate and may thereafter be concluded. Pastuszek v. Pastuszek, 346 Pa.Super. 416, 423, 499 A.2d 1069, 1072-1073 (1985).

The decree of divorce is affirmed. The order denying appellant’s request for closed hearings is reversed, and this issue is remanded to the trial court for the entry of an order consistent with the foregoing opinion. Jurisdiction is not retained.

      . Pa.R.C.P. 223 provides specifically as follows:

        (a) Subject to the requirements of due process of law and of the constitutional rights of the parties, the court may make and enforce rules and orders covering any of the following matters, inter alia:
      (4) Regulating or excluding the public or persons not interested in the proceedings whenever the court deems such regulation or exclusion to be in the interest of the public good, order or morals.

      . Act of April 2, 1980, P.L. 63, No. 26, § 101, 23 P.S. § 101 et seq.

      . 23 P.S. § 305(a).

      . In State ex rel. Gore Newspapers Co. v. Tyson, 313 So.2d 777 (Fla. Dist.Ct.App.1975), the District Court of Appeals of Florida entertained a request for and granted a writ of prohibition preventing a trial judge from conducting a closed trial in a divorce action pending between Jackie and Beverly Gleason. However, Tyson was overruled in English v. McCrary, 348 So.2d 293 (Fla.1977). Tyson, therefore, is noteworthy only for the concerns raised therein. The Court held that a trial court could exclude the public and press in furtherance of the litigants’ right to a fair trial only upon a showing of "cogent reasons” for the closure. Tyson, supra at 782. Because the Gleasons had advanced no theory upon which it could be argued that they would not be afforded a fair trial if the public and press were present or that the administration of justice would be furthered by exclusion, the trial court could not properly close the proceedings.

      . In determining the existence of a constitutional right of marital privacy and writing for the Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), Mr. Justice Douglass said:
      We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

        Id. at 486. 85 S.Ct. at 1682. 14 L.Ed.2d at 516.


author: CERCONE, Judge:

text:
    514 A.2d 1382
    COMMONWEALTH of Pennsylvania v. Elsworth Leroy GROFF, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 26, 1986.
    Filed Sept. 15, 1986.

      Christopher M. Patterson, Leola, for appellant.
    Richard A. Sheetz, Jr., Assistant District Attorney, Lancaster, for Com., appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

On September 16,1983 following a trial by jury, appellant Elsworth Leroy Groff was found guilty of first degree murder. Post-trial motions were filed by trial counsel on September 23, 1983. Later on September 7, 1984 supplemental post-triál motions were filed on appellant’s behalf by a new public defender. After a hearing, the lower court denied post-trial motions on December 14, 1984. Then on April 18, 1985 supplemental post-trial motions alleging ineffectiveness of counsel were filed by appointed counsel. An evidentiary hearing on the ineffectiveness claims was held and on November 18, 1985 the court denied the supplemental motion for a new trial alleging ineffective assistance of counsel. Appellant was subsequently sentenced to life imprisonment on December 2, 1985. A timely motion to modify sentence was filed and denied. This appeal followed.

The conviction for first degree murder arose out of the shooting death of the appellant’s estranged wife. The shooting occurred in the family home and was incited by a marital dispute. At the time of the incident, one of appellant’s children called “911”, the police emergency telephone number, to ask for help. An automatic audio recording was made at the police center which picked up much of the noise, shouting and gun shots surrounding the event. Appellant left the home immediately after the shooting incident but was picked up by the local police shortly thereafter. He was initially stopped by the police for a traffic violation but upon approaching appellant’s vehicle, the officer realized that the truck matched the assailant’s truck as described by police radio. Appellant was arrested and taken to the police station at which time he gave an inculpatory statement. Appellant was given an intoxalyzer test which revealed a .10 blood alcohol count, and was then charged with criminal homicide.

In this appeal appellant raises numerous issues which we will address seriatim.

Appellant first claims that the lower court erred in permitting the jury to hear an electronically enhanced 911 emergency number tape recording which contained screams of the victim and her children and, further, that trial counsel was ineffective in failing to object to its use on the basis of the electronic enhancement. The recording was introduced by the Commonwealth as part of its case in chief.

Trial counsel did object to the introduction of the recording at trial claiming that the sounds of the victim’s and children’s screams would inflame the minds of the jury and that its prejudicial impact would outweigh its probative value.

Our review of the case law in this Commonwealth reveals no decisional law dealing with this type of tape recorded evidence. However, the general test for the admission of demonstrative evidence has been set forth on numerous occasions:

Where relevant photographs of the victim’s injuries are offered in evidence, a two-stepped analysis is employed. First, the court must decide whether a photograph is inflammatory in nature. If, but only if, the photo is deemed to be inflammatory, the court must then apply a balancing test, and determine whether the photo is of “such evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. Miller, 490 Pa. 457, 469, 417 A.2d 128, 134 (1980), cert. den. 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Commonwealth v. Batty, 482 Pa. 173, 177, 393 A.2d 435, 437 (1978).

Commonwealth v. Dennis, 313 Pa.Superior Ct. 415, 422 n. 4, 460 A.2d 255, 259 n. 4 (1983); see generally, Commonwealth v. Frederick, 327 Pa.Superior Ct. 199, 213, 475 A.2d 754, 761 (1984) (The test for admissibility of blood stained clothing as demonstrative evidence is same as that for photographs.) On appeal, this court must determine whether the lower court abused its discretion in applying this test to the facts.

We find, based on the facts of this case, that the lower court did err in admitting the 911 tape into evidence. However, we also find that error to have been harmless beyond a reasonable doubt.

There can be no doubt that hearing the reproduced sounds of a murdered wife and her children at the time of the shooting would inflame the minds and passions of the jury. We must thus determine whether the inflammatory nature of the evidence outweighed the evidentiary value of the tape recording. In this case the recording was merely cumulative evidence added to the Commonwealth’s overwhelming evidence of appellant’s guilt. There is no question that appellant shot his wife. He admitted as much. He claimed, however, that he did not have the requisite intent to commit first degree murder, i.e. premeditation, but rather that he acted in the heat of passion and was therefore guilty only of third degree murder. Contrary to appellant’s defense, the Commonwealth’s evidence showed that appellant prepared for the murder by borrowing the weapon he used earlier on the day in question, waited outside of his wife's residence, entered and shot her three times in vital areas of her body.

The Commonwealth’s case, without the tape recording, was more than sufficient to support a conviction for first degree murder. Further, the tape recorded evidence of screams did not supplement the Commonwealth’s case by providing evidence of appellant’s state of mind.

Although the recorded evidence was erroneously admitted, the record establishes beyond a reasonable doubt that the error did not contribute to the verdict and hence was harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

The doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. Its purpose is premised on the well-settled proposition that “[a] defendant is entitled to a fair trial but not a perfect one.” Commonwealth v. Thornton, 494 Pa. 260, 266, 431 A.2d 248, 251 (1981), citing Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953).

The undisputed facts as previously related provide overwhelming evidence of an intentional killing. Murder of the first degree is an “intentional killing,” 18 Pa.C.S.A. § 2502(a), one that is “willful, deliberate and premeditated.” 18 Pa.C.S.A. § 2502(d). It is well-settled that “the use of a gun on a vital part of the deceased’s body raises the presumption that the defendant shot with the intent to kill the deceased.” Commonwealth v. Ewing, 439 Pa. 88, 92, 264 A.2d 661, 663 (1970) (emphasis in original). The appellant’s preparation, lying in wait and entering the house with a loaded weapon are events which, even individually considered, are evidence of premeditation and, taken together, are overwhelming proof of appellant’s intent to take the life of his estranged wife.

The only evidence to support appellant’s theory of “heat of passion” was his own self-serving testimony that he shot his wife after she started “screaming and hollering.” Given the overwhelming evidence of an intentional killing as compared to the weak nature of appellant’s claims, we find the admission of the 911 tape recording to have been harmless beyond a reasonable doubt.

Appellant also claims that trial counsel was ineffective for failing to object to the admission of the tape recording on the basis that its enhancement by a technician rendered the tape incompetent as evidence. Appellant produced no evidence to explain how or why the enhancement altered the evidentiary value of the tape. During a post-trial evidentiary hearing, appellant’s trial counsel explained that he didn’t object to the recording on this basis because the difference between the original and the enhancement was so miniscule that it would not support such a claim. It is beyond cavil that counsel will not be deemed ineffective for failing to raise a futile claim, Commonwealth v. Davis, 313 Pa.Superior Ct. 355, 459 A.2d 1267 (1983). We find no error here.

As part of its case in chief, the Commonwealth called the victim’s attorney to present evidence of a filing of a protection from abuse petition by the victim against appellant. Appellant here alleges that trial counsel was ineffective for failing to object to the introduction of such evidence.

The evidence of the protection from abuse action was presented to establish that the shooting on April 16, 1983 was intentional. Our Supreme Court has stated that evidence of prior occurrences involving the accused and decedent may be admissible only if it is related to the offense for which the accused is on trial. Commonwealth v. Ulatoski, 472 Pa. 53, 62, 371 A.2d 186, 191 (1977). By showing a history of violence between the accused and the victim, the evidence presented clearly related to the offense for which appellant was convicted and, therefore, was properly admitted. See Commonwealth v. Ulatoski, id.; Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979).

Next, appellant contends that at the time of the shooting, he was under the influence of alcohol to a degree which would negate the element of intent required to sustain a conviction for first degree murder. On appeal, he argues that “the Commonwealth presented insufficient evidence to negate the evidence of involuntary intoxication which reduces murder in the first degree to murder in the third degree.” He also contends that trial counsel was ineffective for failing to object to the court’s jury instructions on this issue.

For intoxication to reduce murder from a higher to a lower degree, it must be proven by the appellant that he was overwhelmed by alcohol to the point of losing his faculties and sensibilities. Commonwealth v. Reiff, 489 Pa. 12, 413 A.2d 672 (1980). The Commonwealth’s burden to prove specific intent is neither increased nor diminished by an attempt of a defendant to disprove the element of intent due to intoxication. See Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The Commonwealth may offer any relevant evidentiary response to defense evidence of intoxication, or none whatsoever. See Commonwealth v. Fairell, 476 Pa. 128, 134, 381 A.2d 1258, 1261 (1977). The Commonwealth may rely on testimony of the surrounding circumstances to prove its case. The Commonwealth is not required to disprove appellant’s claim of intoxication.

The only evidence which related to appellant’s intoxication was the fact that at 2:30 a.m. on the morning of the homicide, his blood alcohol level was measured at .13 and at 4:34 that same morning, it was .10. The appellant told the police he drank four or five cans of beer prior to killing his wife. At trial, appellant did not testify that he was overwhelmed by the effect of alcohol at the time of the shooting.

Three officers interviewed appellant after he was arrested. The arresting officer testified that he smelled alcohol on appellant’s breath but that appellant appeared as if he knew what was going on, was cooperative and was able to follow instructions. The other officers stated that appellant was calm, well composed, had good speech and coordination and was able to follow instructions. The above stated evidence was submitted for the consideration of the jury. This evidence is sufficient to support the Commonwealth’s burden of proving the requisite intent beyond a reasonable doubt.

Appellant further contends that trial counsel was ineffective for failing to object to the accuracy of the court’s charge on voluntary intoxication as a defense. He argues that the court should have used the exact language of the Pennsylvania Suggested Jury instructions in its charge. As the Commonwealth correctly points out, it is well-founded that the court is not required to utilize the language of a specific point for charge, but is free to select any appropriate form of expression. The only question is whether the area is adequately, accurately and clearly presented to the jury for its consideration. Commonwealth v. Bryant, 316 Pa.Superior Ct. 46, 53 n. 2, 462 A.2d 785, 789 n. 2 (1983); Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977).

In determining the adequacy of the instructions to the jury on the relevant legal principles, the charge must be read as a whole. Commonwealth v. Bishop, 472 Pa. 485, 490, 372 A.2d 794, 796 (1977). In the instant case, the court read to the jury the exact language of Section 308 of the Crimes Code and then went on to explain to the jury in more detail what this section means. This specific instruction when considered with the court’s definition of a specific intent to kill and its instruction that the Commonwealth always has the burden of proving each and every element of the offense beyond a reasonable doubt adequately covers the law in the area. Therefore, trial counsel was not ineffective for failing to object to the court’s charge.

After the close of testimony, trial counsel submitted points for charge to the court. The court refused to read appellant’s point for charge number 7 which referred to evidence of good character and its affect in a criminal trial. The court based this ruling on the belief that it had adequately covered the evidence of good character.

The court’s charge was as follows:

The defense has also offered evidence tending to prove that the defendant is a person of good character. And I am speaking about that — the defense witnesses who were called to testify that he had a good reputation for honesty, for truthfulness, for peaceableness and for being a lawabiding citizen.
The law recognized that a person of good character is not likely to commit a crime which is contrary to his nature. Evidence of good character may in itself raise a reasonable doubt of guilt and justify a verdict of not guilty. You must weigh and consider the evidence of good character along with the other evidence in the case. If, after all the evidence you have a reasonable doubt of the defendant’s guilt, you must find him not guilty. However, if, in all the evidence, you are satisfied beyond a reasonable doubt that the defendant is guilty, you should return such a verdict.

The point for charge which trial counsel submitted was:

Defendant has introduced evidence of his reputation for truthfulness, peacefulness, and being a lawabiding citizen in the community. Evidence of good character, produced on behalf of the defendant in a trial is substantive evidence to be weighed and considered by the jury in connection with all other evidence of the case. If the evidence of good character, combined with all the other evidence in the case creates reasonable doubt of the defendant’s guilt in the mind of the jury then the defendant should be acquitted.
Such evidence of good character produced in behalf of the defendant in a trial is offered not simply to raise a reasonable doubt as to the defendant’s guilt but to establish in the minds of the jury the innocence of the defendant and it is to be regarded like a fact, like any other fact, tending to establish the innocence of the defendant and must be so regarded by the jury. Such evidence does not raise a distinct issue and is not brought to the case as a mere make weight. It must be taken into account with all the other evidence in the case, and if the whole of the evidence is sufficient in the judgment of the jury to show that the defendant is not guilty or to create a reasonable doubt on the point, the defendant must be acquitted.

In support of this request trial counsel cited Commonwealth v. Stoner, 65 Pa. 139, 108 A. 624 (1919).

Contrary to appellant’s suggestion, we do not find the instructions actually given were inadequate because it did not state that character evidence is “substantive” evidence. The given instructions clearly allowed the jury to weigh the character evidence in its determination of whether the Commonwealth carried its burden of proof. We find no error here.

Appellant contends that his trial counsel was ineffective in failing to move to suppress his statements because of what he claims to be an unlawful stop and arrest. The record in this matter clearly shows that the arresting officer had probable cause to stop the vehicle driven by appellant and subsequently arrest him. At approximately 3:15 a.m. on April 16, 1983, Officer Echternach, the arresting officer, observed appellant’s vehicle run a red light in the Borough of Strasburg. He immediately activated the lights on his police cruiser and stopped appellant’s vehicle. Approximately 35 minutes prior to this stop, at 2:40 a.m., Officer Echternach received information over Lancaster County Radio that there had been a shooting incident in southern Lancaster County and that a green pick-up truck was involved in that incident. At first, the officer only noticed the white bed of this truck and it was not until he approached the green cab that he realized that this vehicle matched the description earlier broadcast. When the officer confronted the lone occupant of this pick-up truck, appellant responded by saying “you might as well just follow me to the barracks or police station” and “I believe you’re looking for me” or something to that affect, according to the officer. Officer Echternach immediately inquired as to where the weapon was and appellant told him that he had gotten rid of it. Officer Echternach asked appellant to step out of the vehicle, handcuffed him and advised him of his Miranda rights. Appellant immediately admitted to Officer Echternach that he had shot his wife three (3) times.

The test for probable cause to arrest is “whether there were facts available at the time of the initial apprehension which would justify a person of reasonable caution to believe that a crime had been committed and that the individual arrested was the probable perpetrator.” Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119, 123 (1974). It is clear that all that is required to meet the probable cause standard is the probability and not a prima facie showing of criminal activity. Commonwealth v. Vessells, 273 Pa.Superior Ct. 100, 416 A.2d 1108 (1979). It is equally clear that a police officer may rely upon information received over a police radio. Commonwealth v. Prengle, 293 Pa.Superior Ct. 64, 437 A.2d 992 (1981).

Office Echternach knew that approximately 35 minutes earlier there had been a shooting involving a green pick-up truck in a nearby town. Appellant immediately stated that the officer might as well follow him to the police station, admitted that he was the one they were looking for and stated that he had gotten rid of his weapon, all before he had even gotten out of the truck. These facts clearly gave Officer Echternach probable cause to take appellant into custody and arrest him at that time. Immediately after being advised of his Miranda warnings and being placed in the police cruiser, appellant admitted that he had shot his wife three times. We find no merit to appellant’s claim that these statements should have been excluded.

Appellant also claims that trial counsel was ineffective for failing to raise the adequacy of his Miranda rights and the explicit waiver of those rights. These claims are meritless. Officer Echternach testified that he asked appellant whether he understood the rights and appellant responded yes. He asked whether appellant wanted to talk and appellant shrugged his shoulders and then related how he had just shot his wife. Although our courts have held that an explicit waiver of the right to remain silent is a mandatory requirement, Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979), an explicit waiver is any outward manifestation of waiver such as an oral, written or physical manifestation. Id. The record clearly indicates that appellant understood his Miranda rights and explicitly waived them prior to making any statements. All other permutations of the Miranda issue asserted by appellant are equally without merit.

Judgment of sentence affirmed.

      . At trial, the parties stipulated that the technician who enhanced the original recording would testify as follows:
      "From this copy, he then utilized studio tone enhancement and noise reduction equipment to produce an enhanced copy. This enhancement was accomplished by bringing out articulation of foreground and background speech or noise and by giving speech and noise even volume throughout the tape. The purpose of the enhancement was to increase the tonal quality of the recording. And at no time was there any splicing, dubbing or editing of the tape so as to alter the content."

      . We find the remaining issues raised by appellant to be meritless and not worthy of further discussion.


author: HESTER, Judge:

text:
    514 A.2d 1389
    Carol M. McCLOSKEY v. Edward C. McCLOSKEY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 4, 1985.
    Filed Sept. 16, 1986.

      Jeffrey J. Sikirica, Mars, for appellant.
    Richard E. Goldinger, Assistant Public Defender, Butler, for appellee.
    Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   HESTER, Judge:

This appeal challenges a final order of equitable distribution in a divorce proceeding. The trial court ruled, inter alia, that the increase in value of real estate, acquired during the marriage in exchange for appellant’s premarital property, is marital property subject to distribution, regardless whether the increase was due entirely to inflation. Edward McCloskey, husband-appellant, has appealed that portion of the trial court’s ruling. We affirm.

This court, sitting en banc, considered this question in Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986). Anthony differed factually from the present case in that the court initially was required to consider whether an increase in value of premarital assets constitutes marital property. The second issue was whether the increase in value should be reduced to reflect the factor of inflation. Anthony held that the entire increase in value is marital property subject to distribution, and that the increase is not reduced to reflect inflation.

The present case does not involve the initial consideration of Anthony. The marital property exceptions enumerated in 23 P.S. §§ 401(e)(lH7) provide, in pertinent part, that property acquired in exchange for property received prior to the marriage is excluded from marital property. 23 P.S. § 401(e)(1). However, the Divorce Code (hereinafter “Code”) declares that the increase in value of that property, during the marriage, is marital property. Id. At first blush, then, it appears that the Code clearly governs this situation.

Appellant argues, however, that “the bulk of the increase” in the present case is due to inflation and should therefore be excluded from marital property. He claims that section 401(e)(1) should apply only “to that percentage of the total appreciation in value shown to be due to the joint efforts of the parties____” Appellant’s brief at 10.

Anthony discussed, and rejected, the argument that any appreciation due to inflation should not be regarded as an increase in value subject to equitable distribution. Concluding that inflation as a factor cannot be eliminated from the determination of a property’s fair market value, the Anthony court stated, “massive and near impossible proof problems would be generated by attempting to eliminate inflation from a calculation of increased value.” Anthony v. Anthony, supra, 355 Pa.Superior Ct. at 612-613, 514 A.2d at 103. The court concluded that the Code includes inflation “as part of the appreciation in property value subject to equitable division and distribution.” Id., 355 Pa.Superior Ct. at 613, 514 A.2d at 104. It is when allocating and dividing the property that the court may consider the effort expended by each party. The Code provides that the court consider, inter alia, a party’s contribution to the appreciation of marital property when distributing it, 23 P.S. § 401(d)(7), not when determining whether it falls within the definition of marital property. The Anthony court made that clear when it stated:

Because it is the time, rather than the manner, of acquisition that determines whether property constitutes marital property under Pennsylvania’s Divorce Code, the spouses’ efforts and/or financial contributions are not germane to definition of marital property under the Code.

Id., at 99 (footnote and citation omitted) (emphasis added).

As this case is controlled by Anthony v. Anthony, supra, the decision of the trial court is affirmed.


author: KELLY, Judge:

text:
    515 A.2d 1
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph MALLON, John Mattero, William Sweeney, Kurt Hecker, and John Hartung, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 2, 1986.
    Filed Aug. 7, 1986.
    Reargument Denied Sept. 30, 1986.
    Robert A. Graci, Harrisburg, for Com., appellant.
    Robert W. Auve, Chester, for Mallon, appellee.
    Arthur T. Donato, Jr., Media, for Mattero, appellee.

      Steven C. Leach, Newtown Square, for Sweeney, appellee.
    James P. McHugh, Chester, Bala Cynwyd, for Hartung, appellee.
    William A. George, Media, for Hecker, appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   KELLY, Judge:

This case involves an appeal by the Commonwealth of an Order dismissing the criminal informations filed against each of the five defendants. The lower court found that further prosecution was barred by Pennsylvania Rule of Criminal Procedure 1100, which limits the time within which a criminal defendant must be brought to trial. We hold that the 180-day period set forth in Rule 1100 had not lapsed; we therefore reverse and remand the cases for further proceedings consistent with this Opinion.

The pertinent facts giving rise to this appeal are as follows. In early 1984, the Office of Attorney General, Bureau of Criminal Investigations, initiated an investigation into a possible bookmaking and sports gambling operation in Delaware County and the surrounding area. Application for telephone pen register devices, followed by applications for electronic surveillance of the telephone lines, were approved. The conversations recorded purportedly reflected a sports gambling operation involving each of the five appellees herein. On April 5, 1984, pursuant to search warrants, agents searched several homes and seized certain records. During the searches, each of the appellees was served with a subpoena ordering him to appear on April 25, 1984 before an investigating grand jury sitting in Harrisburg. The appellees invoked the Fifth Amendment privilege when they appeared before the grand jury.

On September 20, 1984, the grand jury returned presentments against the appellees. The presentments, which recommended that the Attorney General institute criminal proceedings, were approved by the grand jury judge and submitted to the Attorney General. The Commonwealth filed criminal complaints against each of the five appellees on October 11, 1984, and the appellees were arrested. Appellee Hartung filed a motion to dismiss on March 17, 1985, which the other appellees joined; the appellees contended that the time for trial provided in Rule 1100 had lapsed. Trial was scheduled to commence on April 1, 1985. On that date, after hearing the arguments of counsel, the court below granted the appellees’ motion and dismissed the cases. The Commonwealth appealed.

The issue presented on appeal is one of first impression: When does the Rule 1100 180-day period commence in a case which is based upon an investigating grand jury presentment which has been passed on to the Commonwealth attorney for possible action? The appellees argue, and the lower court agreed, that the 180-day period begins to run on the date that the investigating grand jury’s presentment is approved by the supervising judge. The Commonwealth argues that the period commences only after a formal complaint is filed.

In order to resolve the issue presented in the instant case, an understanding of grand jury proceedings is necessary. The majority of criminal actions today are commenced by simply filing a complaint. Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971). A minority of cases, however, involve one form or another of grand jury proceedings. There are two main types of grand juries, with differing powers and purposes. First, an indicting grand jury hears evidence and has the power to issue a “presentment”. The presentment of an indicting grand jury “is a written accusation of a crime,” and “[i]t is, in fact, as much a criminal accusation as an indictment, except that it emanates from their own knowledge, and not from the public accuser____” Commonwealth v. Silver, 238 Pa.Super. 221, 226-7, 357 A.2d 612, 614 (1976), citing Lloyd & Carpenter’s Case, 5 Pa.L.J. 55, 59, 3 Clark 188, 193 (Ct. of Qtr. Sess. of Phila. 1845); see also 1 Wharton’s Criminal Procedure § 216 at 470 (12th ed. 1974). The indicting grand jury may receive its information from the prosecutor, see Commonwealth v. McCloskey, supra, from the personal knowledge of the jurors, see McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936), or from the presentment of an investigating grand jury, see Commonwealth v. Silver, supra. Upon the filing of an indicting grand jury’s presentment, a defendant is subject to arrest and prosecution.

In contrast, the presentment of an investigating grand jury differs greatly from that of an indicting grand jury. An investigating grand jury presentment is defined as “[a] written formal recommendation by an investigating grand jury that specific persons be charged with specific crimes.” 42 Pa. C.S.A. § 4542 (emphasis added). A person named in an investigating grand jury presentment “is not ‘held to answer’ upon the filing of a presentment and the presentment itself is not sufficient to support a prosecution____

The presentment of the investigating grand jury is nothing more than ‘a rather complete summary of the grounds on which the investigating grand jury is making its recommendation.’ ” Commonwealth v. Silver, supra, 238 Pa.Superior Ct. at 229, 357 A.2d at 616 (citations omitted). “The characteristic that distinguishes [investigating grand jury presentments] from other grand jury activity is that they do not formally charge named persons with the commission of specific criminal acts.” Id.; see also 42 Pa. C.S.A. § 4548(c) (“Except for the power to indict, the investigating grand jury shall have every power available to any other grand jury in the Commonwealth”). “Unenviable as his position may be, the accused still has not had a criminal proceeding commenced against him____” Commonwealth v. Silver, supra, 238 Pa. Superior Ct. at 230, 357 A.2d at 616.

Traditionally, the “ordinary” or “regular” grand jury function was to receive complaints and accusations and to find bills of indictment; the investigative duties were considered “special” and occasional. See Commonwealth v. Hubbs, 137 Pa.Super. 229, 8 A.2d 611 (1939). Today, however, the majority of counties have discontinued the indicting grand jury process, replacing it with the filing of a criminal information. The indicting grand jury presentment is becoming obsolete and is little more than a rubber stamp in those counties in Pennsylvania where it is still used; the grand jury has evolved into an almost purely investigative body. See D. Savitt and B. Gottleib, Pennsylvania Grand Jury Practice 1-7 (1983); see also Ranney, Grand Juries in Pennsylvania, 37 U.Pitt.L.Rev. 1 (1975).

The instant case requires us to view the grand jury process as it relates to Rule 1100. The applicable provision, Rule 1100(a)(2), states:

Rule 1100. Prompt Trial
$ # * * * #
(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.

(Emphasis supplied).

Rule 1100 was promulgated “in order to more effectively protect the [Sixth Amendment] right of criminal defendants to a speedy trial ...,” and because our Supreme Court believed it “expedient to formulate a rule of criminal procedure fixing a maximum time limit in which individuals accused of a crime shall be brought to trial ...” Commonwealth v. Hamilton, 449 Pa. 297, 308, 297 A.2d 127, 133 (1972). “Only a formal indictment, information, or arrest, any of which binds an accused to respond to a criminal charge, invokes Sixth Amendment privileges. Once a citizen’s liberty is restrained, his speedy trial rights are activated.” Commonwealth v. Arnold, 331 Pa.Super. 345, 360, 480 A.2d 1066, 1074 (1984), citing U.S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Rule 1100 contemplates the commencement of the 180-day period at the point when criminal proceedings are initiated. Commonwealth v. Lomax, 324 Pa.Super. 549, 554, 472 A.2d 217, 219 (1984).

The A.B.A. Project on Standards for Criminal Justice, Standards Relating to Speedy Trial, although not dispositive, do offer some guidance. The comment to Section 2.2(a) (Approved Draft, 1968) states:

[I]f at the time of filing of the charge the defendant is being held to answer — whether in custody or on bail or recognizance — ____then the time for trial commences running from the date the defendant was held to answer. In all other cases the time begins running as of the date the charge is filed. Charge means a written statement filed with a court which accuses a person of an offense and which is sufficient to support a prosecution; it may be an indictment, information, complaint, or affidavit, depending on the circumstances and the law of the particular jurisdiction ...

The plain language of Rule 1100 tends to support the Commonwealth’s position that the applicable period of time is measured from the date that the complaint is filed. The Comment to the Rule, however, adds that:

... it is intended that “complaint” also includes special documents used in lieu of a complaint to initiate criminal proceedings in extraordinary circumstances; namely, the presentment of a grand jury, based on the personal knowledge of the jurors or drafted by the attorney for the Commonwealth, when submitted to subsequent indicting grand jury____

The lower court, citing the aforementioned comment and Commonwealth v. Silver, supra, held that the Rule 1100 period commenced at the point when the supervising judge approved the investigating grand jury presentment, and the presentment was handed over to the prosecutor for consideration. Upon reviewing Rule 1100 and the applicable caselaw, we reverse and remand for trial. We hold that, in cases originating with investigating grand jury presentments which are referred to the prosecutor, the Rule 1100 period begins to run only after the prosecutor reaches the decision to prosecute the defendant, publicly accusing him through the filing of a criminal complaint.

An investigating grand jury presentment, unlike an indictment, criminal complaint, or information, does not formally charge an accused. Instead, it is merely a recommendation, in advisory fashion, that the prosecutor should bring formal charges. Neither the governing statute, court rules nor common law expressly require the prosecutor to file charges against a person named in an investigating grand jury presentment. See Savitt and Gottleib, supra, at 218; 42 Pa. C.S.A. §§ 4542, 4551(c). This construction is consistent with the principle that a prosecutor is not bound to prosecute every alleged criminal offender, and that the decision of whether to prosecute is within his discretion. Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968); Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982). The individual named in the presentment is not subject to any liberty restraints, and the presentment itself is insufficient to support a prosecution. It is only when the prosecutor chooses to file a complaint that the accused is ‘held to answer’ a criminal charge and is subject to arrest and imprisonment. See Silver, supra.

Our decision today is consistent with the previous decisions in similar cases. In Commonwealth v. Kellie, 275 Pa.Super. 106, 418 A.2d 634 (1980), this court considered the question of whether the 180-day Rule 1100 period began to run at the time when a private complaint was signed by the complainant or upon its eventual approval by the prosecuting attorney. We concluded that proceedings against the defendant did not commence, and Rule 1100 did not start to run, until the prosecuting attorney signed the complaint. Until that time, neither a warrant nor a summons could issue against the defendant. See also Commonwealth v. Lomax, supra.

Commonwealth v. Silver, supra, cited by appellee, is also in accord with our holding. Silver involved an investigating grand jury presentment which was approved by the supervising judge and sent on to the indicting grand jury for action. See Rule 1100 Comment, infra. The indicting grand jury approved an indictment charging the defendant. Appellee herein misconstrues our holding in Silver by arguing that Silver requires us to find in the instant case that Rule 1100 began to run when the supervising judge accepted the presentment. We disagree. In Silver, the issue before us was whether the Rule 1100 period had commenced with the investigating grand jury’s presentment, or whether it commenced at the later date, when the indictments were handed down by the indicting grand jury. The Commonwealth argued that the criminal proceedings had commenced with the investigating grand jury presentment, and that the case was therefore instituted before the effective date of Rule 1100. The defendant argued that the proceedings began, and the Rule 1100 period commenced, only after the indicting jury filed its indictment, and that the case therefore fell within the mandate of Rule 1100. The lower court had held that, since 491 days had lapsed from the date of the indictment, the Rule 1100 period had expired. This Court affirmed.

We hold that the time period under Rule 1100 does not commence with the issuing of the presentment of an investigating grand jury, but rather it begins only when that presentment is submitted for action to a subsequent indicting grand jury. In the instant case that action took place subsequent to the effective date of Rule 1100; and therefore, the Commonwealth is bound by and the appellee is protected by the Rule’s rigid time restrictions.

357 A.2d at 616. (Emphasis added). In holding that the Rule 1100 period commenced with the grand jury’s indictment we reasoned that, with the mere filing of the presentment, the accused is not yet held to answer the charges. 357 A.2d at 616. Thus, the reasoning and the holding in Silver are consistent with our decision in the instant case.

One final comment is in order. The lower court based its holding in part on the proposition that delay between an investigating grand jury presentment “may interfere with employment, drain financial resources, curtail associations, and create problems for the defendant, his family and friends” (Opinion at 7). It is true that delay between public accusation and trial may result in such prejudice to the defendant. See Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). By tradition, however, investigating grand juries in Pennsylvania meet and investigate in secrecy. One of the primary reasons for maintaining secrecy is “to protect an innocent accused who is exonerated from disclosure of the fact that he has been under investigation.” In Re Investigating Grand Jury, 496 Pa. 452, 457-58, 437 A.2d 1128, 1130 (1981). The Pennsylvania legislature and Supreme Court have established rules to preserve this secrecy requirement. The only persons permitted to be present while an investigating grand jury is meeting are the alternate jurors, the attorney for the Commonwealth, the witness under examination, his counsel, and the stenographer. Pa.R.Crim.P. 264. Except under certain narrowly defined circumstances, no grand juror, attorney, stenographer, or other person associated with an investigating grand jury may disclose any information concerning the grand jury’s proceedings unless otherwise directed by the court. 42 Pa. C.S.A. § 4549(b). If necessary, the supervising judge has the power to seal the presentment, directing that the return of the presentment shall not be disclosed. 42 Pa. C.S.A. § 4551(b). Thus, the defendant may be protected from any possible prejudice resulting from a delay between the investigating grand jury presentment and a prosecutorial decision on whether or not charges should be filed.

The 180-day time period set forth in Rule 1100 did not commence until the date upon which the complaints were filed against appellees, October 11, 1984. As the Commonwealth certified its readiness for trial on April 1, 1985, day 172, the 180-day period had not lapsed. We therefore reverse the order of the lower court and remand for trial.

Order reversed; cases remanded for trial.

      . See 42 Pa. C.S.A. § 4544, relating to multicounty investigating grand juries.

      . The investigating grand jury presentment was approved on September 20, 1984, and the complaints were filed on October 11, 1984. Thus, under the appellees’ theory, April 1, 1985, the date trial was to commence, was the 194th day; under the Commonwealth theory, April 1, 1985 was only the 172nd day.

      ; The instant case involves a multicounty grand jury. 42 Pa. C.S.A. § 4551(c) states that “[wjhenever a multicounty investigating grand jury returns a presentment against any person the Attorney General ... shall ... be authorized to prosecute the person on behalf of the Commonwealth by instituting criminal proceedings ...”. (Emphasis added).

      . See Commonwealth v. Shelton, 239 Pa.Super. 195, 198, 361 A.2d 873, 874-5, fn.3 (1976), reversed on other grounds, 469 Pa. 8, 364 A.2d 694 (1976):
      [T]he Commonwealth suggests that the criminal proceedings commenced against the appellant on the date of the Presentment by the Special Investigating Grand Jury, rather than on the date of the indictments by the regular Grand Jury. This question was recently resolved by this Court in Commonwealth v. Silver____
      On appeal, the Supreme Court, in a footnote, appears to calculate the Rule 1100 time period as commencing on the date the presentment was approved. See Commonwealth v. Shelton, 469 Pa. 8, 14, 364 A.2d 694, 697, fn.9 (1976). This attempted calculation is mere dicta, however, since, as the Superior Court stated: "An exact determination of the operative date is unnecessary because the period had expired, whether measured from the date of the Presentment, the date of the Indictment, or any time therein." Shelton, supra, 239 Pa.Superior Ct. at 198, 361 A.2d at 875.

      . Rule 1100 required trial to commence within 270 days in actions between June 30, 1973, and June 30, 1974. In actions commenced after June 30, 1974, the time period was shortened to 180 days.


author: BECK, Judge:

text:
    515 A.2d 6
    Louis ETTER and the Estate of Sidney Goldberg, t/a Goldberg Bros. Co., Appellant, v. INDUSTRIAL VALLEY BANK AND TRUST COMPANY and the Pollock Corporation.
    Superior Court of Pennsylvania.
    Argued May 28, 1986.
    Filed Sept. 9, 1986.

      Paul Shalita, Philadelphia, for appellant.
    Alan Gershenson, Philadelphia, for appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   BECK, Judge:

Phoenixville Recycling Corporation (Recycling) purchased the scrap metal business of appellant, Louis Etter and the Estate of Sidney Goldberg, t/a Goldberg Brothers Company (Goldberg) for $550,000. The purchase was financed in part by a $450,000 loan from Industrial Valley Bank and Trust Company (IVB) to Recycling secured by (i) a mortgage on the land being purchased from Goldberg, (ii) a security interest in the machinery and equipment purchased from Goldberg, and (iii) a suretyship contract wherein The Pollock Corporation (Pollock) agreed to be Recycling’s surety for twenty-five percent (25%) of the outstanding loan. Pollock had a business relationship with Recycling.

At the time of purchase, Recycling paid Goldberg $400,-000 and as security for payment of the additional $150,000 due on the purchase price, Recycling gave Goldberg a second mortgage on the land bought from Goldberg and a security interest in the machinery and equipment bought from Goldberg. IVB was thus Recycling’s senior creditor with a lien position and security interest prior to that of Goldberg, Recycling’s junior creditor.

In 1980, Recycling defaulted in its IVB loan repayment, and IVB then sought payment from Pollock as Recycling’s surety of 25% of the 1980 loan balance. At the time of Recycling’s default, the loan balance was $442,573.26. Therefore, Pollock was obligated under the suretyship agreement to pay approximately $110,000, i.e. one-fourth of the balance due at the time of Recycling’s default. In 1981, Pollock paid $160,000 to IVB and received from IVB: 1) a release from the suretyship contract; 2) an assignment of the right to receive repayment of Recycling’s debt; and 2) the security instruments held by IVB relative to the debt.

Thereafter Pollock as assignee of IVB’s interests directed that the machinery and equipment which Recycling had purchased from Goldberg be seized and offered at a public sale. Pollock was the sole bidder at the sale and obtained the machinery and equipment for $10,000. Subsequently, Pollock commenced a mortgage foreclosure action against the land Recycling had bought from Goldberg. Before the date on which the land was to be sold at a sheriff’s sale pursuant to the mortgage foreclosure proceedings, Goldberg filed a complaint in equity which requested, inter alia, that the trial court enter an order stating that Pollock had “received from [Recycling] sufficient value in payment of all obligations due Pollock, and that accordingly, the judgment and mortgage lien ... against the ... Recycling ... property should be declared to be junior and subordinate to the existing liens in favor of [Goldberg].” Goldberg’s Amended Complaint in Equity at 6.

After Pollock had filed an answer to the complaint and the parties had engaged in various forms of discovery, the parties filed motions for summary judgment. Goldberg’s motion for summary judgment was denied, and Pollock’s motion for summary judgment was granted in part. This appeal from the February 11, 1985, order granting partial summary judgment followed. We affirm.

Summary judgment may be properly entered only when there exists no genuine issue as to any material fact and the party seeking summary judgment is entitled to such judgment as a matter of law. Pa.R.C.P. No. 1035(b); Johnson v. Baker, 346 Pa.Super. 183, 499 A.2d 372 (1985). The facts of the present case are uncontested. We conclude that the trial court correctly decided the issue of law and therefore properly granted partial summary judgment in favor of Pollock.

The issue before us is whether a surety (Pollock) who satisfies its obligation to the creditor (IVB) by paying a portion of the principal obligor’s (Recycling’s) indebtedness is barred from assuming the creditor’s senior lien position as against a junior lienholder of the debtor (Goldberg).

We hold that Pollock, having made full payment of its obligation under the surety agreement, was no longer in the position of surety but in the position of a bona fide third party assignee and, therefore, is not barred from assuming IVB’s senior lien position as against the junior lienholder.

The trial court’s order which granted Pollock partial summary judgment was premised on Pollock’s status as a third party assignee rather than a surety as to the remaining debt. We agree with this part of the trial court’s analysis, and conclude that after satisfying its obligation under the suretyship agreement, Pollock like any other third party assignee could succeed to IVB’s first secured position for the full amount of Recycling’s debt to IVB.

Challenging the trial court’s conclusion, Goldberg asserts that Pollock was ineligible to accept an assignment of Recycling’s debt because Pollock was Recycling’s surety. As we explained in Continental Bank v. Axler, 353 Pa.Super. 409, 510 A.2d 726 (1986), (reargument denied, June 30, 1986):

a suretyship arrangement arises when a creditor refuses to extend credit to a debtor unless a third party (the surety) agrees to provide additional security for repayment of the debt by undertaking the debtor’s obligation to the creditor if the debtor fails to perform____ In general terms, a suretyship represents a three-party association wherein a creditor is entitled to performance of a contractual duty by the principal debtor or alternatively, if the debtor defaults, by the debtor’s surety.

Id., at 729.

The law has recognized a special relationship between the principal debtor and his surety based upon reciprocal duties, Restatement of Security §§ 82, 103, 104, 112 (1941), and mutual confidence. Restatement of Restitution § 80 Comment a (1936). The core of this special relationship is the surety’s obligation to repay the debt of the principal debtor if the latter defaults due to inability to repay the creditor. Thommen v. Aldine Trust Co., 302 Pa. 409, 153 A. 750 (1931); Axler; Restatement of Security §§82, 112.

Goldberg incorrectly relies on principles of the law of suretyship that evolved to protect a principal debtor from sharp dealings by his surety. Specifically, Goldberg asserts that a surety cannot speculate with the interests of the principal obligor. In order to prevent such speculation a surety’s right of recovery from its principal debtor is limited to the amount the surety reasonably paid out to satisfy its obligation. In other words, a surety who compromises the debt of the principal obligor with the creditor and pays the creditor less than the face amount for satisfaction of the principal obligor’s debt has a limited right of reimbursement from the principal obligor. The surety is not entitled to be reimbursed for the face amount of the indebtedness, but is limited to the amount reasonably paid out. Tooks v. Indemnity Insurance Company of North America, 381 Pa. 607, 114 A.2d 135 (1955); Bishoff v. Fehl, 345 Pa. 539, 29 A.2d 58 (1942); Restatement of Security §§ 104, 105, 106; Restatement of Restitution § 80. The surety cannot use his position to enrich himself to the detriment of the principal obligor.

“The surety’s right of reimbursement is equitable in origin,” Restatement of Security § 104 Comment f, and is premised upon the concept of preventing unjust enrichment. Id. Comment h.; see Bishoff. Neither the principal debtor nor the surety may intentionally profit at the other’s expense. Restatement of Security §§ 104, 108, 110, 111; Restatement of Restitution § 80. “If the surety can satisfy his own obligation and obtain a discharge of the principal’s duty by paying less than the amount nominally due by the principal, [the surety’s] reasonable outlay [extent of reimbursement] is limited to that amount.” Restatement of Security § 104 Comment d; Restatement of Restitution § 80 Comment a.

Based on this principle Goldberg would have us limit Pollock’s recovery to the amount it actually paid in discharge of its obligations as a surety. He would like us to hold that once a party is a surety, it cannot profit from any transaction surrounding the suretyship. Goldberg misperceives the law. First, the principle of law Goldberg asserts is applicable only between sureties and principal debtors. Second, we conclude that IVB’s assignment to Pollock was not to Pollock as a surety but to Pollock as a third party assignee not bound by the limitations of the law of surety-ship.

Goldberg also suggests that the limitations imposed on the surety in dealing with his principal are also applicable to a junior lienholder. The principal that the surety cannot speculate with the interests of his principal obligor has no application to a junior lienholder, and Goldberg has stated no precedent, no logical argument and no valid policy reason to extend the principle of law to a junior lienholder.

After Pollock satisfied the obligation under the suretyship agreement for about $110,000 it was no longer a surety. Upon payment of $50,000, it became a bona fide third party assignee of the entire debt and stepped into IVB’s shoes. An assignment extinguishes the assignor’s right to performance by the obligor and transfers that right to the assignee. Purman Estate, 358 Pa. 187, 56 A.2d 86 (1948); Restatement (Second) of Contracts § 317 (1979). “Under the law of assignments, the assignee stands in the same shoes as the assignor. An assignment does not confer on the assignee any greater rights than those possessed by the assignor---- However, the assignee’s rights are not inferior to those of the assignor.” U.S. Steel Homes Credit Corp. v. South Shore Development Corp., 277 Pa.Super. 308, 314, 419 A.2d 785, 789 (1980).

As in the instant case the assignment can transfer the assignor’s security position to the assignee. “A purchase of a debt is a purchase of all the securities for it, whether named or not at the time of the assignment.” Beaver Trust Co. v. Morgan, 259 Pa. 567, 570, 103 A. 367, 369 (1918). In purchasing a debt, an assignee acquires all rights of priority or preference and all collateral securities and liens previously held by the assignor to secure repayment of the debt. Himes v. Cameron County Container Corporation, 497 Pa. 637, 444 A.2d 98 (1982); U.S. Steel Homes, 277 Pa.Super. 308, 419 A.2d 785; Andrews v. The Marine National Bank of Erie, 153 Pa.Super. 149, 33 A.2d 75 (1943).

Admittedly, Pollock made a profitable deal in purchasing the balance of Recycling’s debt at a discount, i.e. at less than the face value of the remaining unpaid debt. It appears that IVB made a business decision to accept approximately $50,000 as consideration for the assignment of a claim with a face value of more than $300,000. Recycling had already defaulted in repayment of its debt, and IVB undoubtedly anticipated difficulty in recouping additional payment from Recycling.

We conclude that Pollock has assumed the senior creditor position formerly enjoyed by IVB with respect to the collateral for Recycling’s loan repayment, and Goldberg remains Recycling’s junior creditor.

Judgment affirmed.

      . By agreement of counsel for Goldberg and counsel for Pollock, litigation was discontinued as to Industrial Valley Bank and Trust Company (IVB). Praecipe of December 17, 1984, filed by counsel for Goldberg and counsel for Pollock.

      . An order denying a motion for summary judgment is interlocutory and not appealable. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). The order granting partial summary judgment is appealable in accordance with the discussion of appealability in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

      . The surety has a right to equitable relief in the form of exoneration if the principal debtor’s obligation to the creditor has matured and the principal debtor is able to satisfy the obligation but refuses to do so. Allegheny Plastics, Inc. v. Stuyvesant Insurance Co., 414 Pa. 381, 200 A.2d 775 (1964); Restatement of Security § 112 (1941).

      . There is some suggestion by Goldberg that because Recycling did not contest the assignment to Pollock, the assignment resulted from collusion among Recycling, Pollock, and IVB. In fact, however, the debtor’s approval of an assignment is not necessary to make an assignment valid. Commonwealth v. Baldassari, 279 Pa.Super. 491, 421 A.2d 306 (1980). Therefore, regardless of any protest which Recycling might have made, IVB could still have made an effective assignment to Pollock.