author: SPAETH, Judge:

text:
    467 A.2d 345
    John ANTANOVICH and Nellie Antanovich, Co-Administrators of the Estate of Gary Lee Antanovich, Deceased, Appellants, v. ALLSTATE INSURANCE COMPANY. Cynthia BRENDLINGER, Individually and as the Administra-trix of the Estate of Kenneth Brendlinger, and as natural guardian of Traci Brendlinger, Jodie Brendlinger, and Lonnie Brendlinger, and Traci Brendlinger, Jodi Brendlinger, and Lonnie Brendlinger, Individually, v. ALLSTATE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1983.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Granted Feb. 10, 1984.

      Anthony J. Seneca, Washington, for Antanovich, appellants (at No. 1230).
    Richard C. Angino, Harrisburg, for Antanovich, appellants (at No. 1230) and for Brendlinger, appellees (at No. 450).
    William T. Barker, Chicago, 111., for Allstate, appellant (at No. 450) and appellee (at No. 1230).
    Before CERCONE, President Judge, and SPAETH, BRO-SKY, ROWLEY, McEWEN, HOFFMAN and VAN der VOORT, JJ.
   SPAETH, Judge:

This case arises on two appeals, which we ordered consolidated because they both present the question whether the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, No. 40 P.S. 1009.101 et seq., requires that the basic loss benefits provided by Section 202 of the Act, 40 P.S. § 1009.202, are to be multiplied by the number of vehicles as to which security has been provided under an insurance policy entitling the victim to benefits. Stated differently, we are to decide whether basic loss benefits may be “stacked.” The Courts of Common Pleas have divided on this question, and it is one of first impression in this court. In Part -1 of this opinion we hold that basic loss benefits may not be stacked.

One of these appeals, Antanovich, presents a second question: whether post-mortem work-loss benefits are to be paid to the survivors of the victim at a monthly rate or in a lump sum. In Part 2 of this opinion we hold that post-mortem work-loss benefits are to be paid in a lump sum.

1.

Under the No-fault Act, “basic loss benefits” include several different items of loss. As to some of these items, the Act places no limits on the amount that may be recovered. As to others, the Act does place limits. The items without limits are the expense of medical treatment and care, the expense of emergency health services, and the expense of medical and vocational rehabilitation services. The items with limits are: funeral expenses—$1,500; work loss benefits—$15,000; replacement services losses—$25 per day for an aggregate period of one year; and survivors’ losses—$5,000. 40 P.S. §§ 1009.103, 1009.202.

In both Antanovich and Brendlinger the victim died as a result of injuries sustained in an automobile accident. In both cases the insurance policy was issued by Allstate Insurance Company, and in both cases more than one vehicle was covered under the policy.

In Antanovich, the policy covered four vehicles. The victim’s parents, as administrators of his estate, sued to recover work loss benefits in the amount of $60,000, on the theory that the benefits may be stacked (i.e., 4 x $15,000). They also sought to have the benefits paid to them in a lump sum, rather than at a monthly rate. On Allstate’s motion for summary judgment, the Court of Common Pleas of Washington County held that work loss benefits may not be stacked, and should be paid at a monthly rate.

In Brendlinger, the policy covered two vehicles. The surviving spouse and children of the victim, suing on the theory that benefits may be stacked, sought to recover $30,000 work loss benefits (2 x $15,000), $10,000 survivors’ loss benefits (2 x $5,000) and $2,117 funeral expenses (2 x $1,500 except not to exceed actual funeral expense). Allstate had made a total lump-sum payment to cover work loss in the amount of $13,903, and had paid $5,000 survivors’ loss benefits and $1,500 funeral expenses. On the Brendlingers’ motion for summary judgment, the Court of Common Pleas of Westmoreland County held that the benefits may be stacked, and ordered Allstate to pay, in addition to the sums it had already paid, work loss benefits up to $15,000, to be paid at a monthly rate, survivors’ benefits of $5,000, and funeral expenses of $617.

-a-

We may start our discussion by noting the terms of the Allstate policy, for in that way we may see just what is the issue we must decide.

In specifying “limits of liability,” the Allstate policy provides:

Regardless of the number of ... INSURED MOTOR VEHICLES to which this coverage [i.e., No-fault coverage] applies, Allstate’s liability for personal injury protection benefits with respect to BODILY INJURY to any one ELIGIBLE PERSON in any one MOTOR VEHICLE accident is limited as follows: (1) the maximum amount payable for WORK LOSS shall not exceed $15,000 ... (3) The maximum amount payable for FUNERAL EXPENSES shall not exceed $1,500; (4) The maximum amount payable for SURVIVOR’S LOSS shall not exceed $5,000.

The Antanovichs and Brendlingers do not argue that the Allstate policy is ambiguous, or that Allstate in some way misled them. Cf. Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979); Habecker v. Nationwide Insurance Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982); Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa.Super. 116, 386 A.2d 535 (1978); Barth v. State Farm Fire & Casualty Co., 214 Pa.Super. 434, 257 A.2d 671 (1979). Instead, they admit, as they must, that the policy clearly prohibits stacking. They argue, however, that this prohibition should be declared invalid as contrary to the No-fault Act. They acknowledge their inability to point to any provision of the Act explicitly providing that a policy may not prohibit stacking. Moreover, it is evident that the Insurance Commissioner is of the view that a policy that prohibits stacking is not contrary to the Act, for the Commissioner has approved the Allstate policy. See 31 Pa.Code § 66.101. However, even though the Commissioner has expert knowledge, to which a court must defer, Feingold v. Bell of Pennsylvania, All Pa. 1, 383 A.2d 791 (1977), he has on occasion issued invalid regulations, United Services Auto Ass’n Appeal, 227 Pa. Super. 508, 323 A.2d 737 (1974), and the position of the Antanovichs and Brendlingers is that here he has issued invalid regulations. While no provision of the No-fault Act explicitly provides that a policy may not prohibit stacking, neither does any provision explicitly provide that a policy may prohibit stacking. This being so, the Antanovichs and Brendlingers argue, we must consider the public policy underlying the Act. In their view, a proper understanding of that public policy leads to the conclusion that an insurance policy such as Allstate’s may not prohibit stacking.

Allstate generally agrees with this definition of the issue, but in its view, a proper understanding of the public policy underlying the No-fault Act leads to the conclusion that stacking is prohibited by the Act, and that therefore its insurance policy is valid.

-b-

As with other remedial legislation, like workmen’s compensation provisions, see Bley v. Commonwealth Department of Labor and Industry, 484 Pa. 365, 399 A.2d 119 (1979), Workmen’s Compensation Appeal Board v. Hartlieb, 465 Pa. 249, 348 A.2d 746 (1975), we are to construe insurance statutes liberally in order to effect their purposes. 1 Pa.C.S.A. § 1928(c); Miller v. U.S. Fidelity and Guaranty Company, 304 Pa.Super. 43, 450 A.2d 91 (1982); Chesler v. Government Employees Insurance Company, 302 Pa.Super. 356, 448 A.2d 1080 (1982); Dull v. Employers Mutual Casualty Co., 278 Pa.Super. 569, 420 A.2d 688 (1980). However, we are not free to create additional authority in a statute when its terms are unambiguous. In re Private Detective License of Keibler Detective Agency, Inc., 279 Pa.Super. 276, 420 A.2d 1331 (1980). “The court’s function is to interpret legislative enactments and not promulgate them.” Mayhugh v. Coon, 460 Pa. 128, 331 A.2d 452 (1975).

When the words of a statute are not explicit—no provision of the No-fault Act either explicitly requiring or explicitly prohibiting stacking basic loss benefits—we proceed as follows:

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation. .
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S.A. § 1921(c).

Here, the occasion and necessity for the No-fault Act, the circumstances under which it was enacted, the mischief to be remedied, and the object to be attained are readily ascertained, for they are all set forth in the comprehensive statement of “Findings and Purposes” with which the Act opens. 40 P.S. § 1009.102.

Several of the General Assembly’s findings are particularly relevant for our purposes; they may be summarized as follows: First, it is “essential” to provide “maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents.” 40 P.S. § 1009.-102(a)(3). Second, the traditional system of making compensation and restoration of victims and survivors contingent upon proof of fault and the existence of sufficient liability insurance is not a “low cost, comprehensive, and fair system,” whereas a system that “assures every victim payment of all his basic medical and rehabilitative costs, and recovery of a reasonable amount of work loss, replacement services and survivor’s loss,” and that “eliminates the need to determine fault except when a victim is very seriously injured” is such a system, id. § 1009.102(a)(5), (6), which it is “necessary and proper” to adopt, id. § 1009.-102(a)(4). Third, “throughout the Commonwealth there should be uniformity as to the essential elements of the system of motor vehicle accident and insurance law to avoid confusion, complexity, uncertainty, and chaos which would be engendered by a multiplicity of noncomplementary systems, ...” Id. § 1009.102(a)(8). Finally, “[i]t is necessary to afford required coverages for motor vehicles to economically disadvantaged individuals at rates not so great as to deny such individuals access to insurance which it is necessary for them to have in order to earn income and to be or remain gainfully employed.” Id. § 1009.102(a)(10).

Having made these findings, the General Assembly then set forth the purposes of the No-fault Act:

Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims. Id. § 1009.102(b).

It is now in order to consider the substantive provisions of the No-fault Act, so that we may see how the General Assembly sought to accomplish its purposes.

The owner of each vehicle registered in Pennsylvania is required to provide security (either by insurance or otherwise) for the payment of basic loss benefits. 40 P.S. § 1009.104. If an accident resulting in injury occurs, the victim or the survivor of a deceased victim “is entitled to receive basic loss benefits in accordance with the provisions of this act.” Id. § 1009.201(a). The “obligor providing security for the payment of basic loss benefits” is required to pay such benefits “without regard to fault to each individual entitled thereto, pursuant to the terms and conditions of this act.” Id. § 1009.111(b).

We have already briefly indicated, at the beginning of this part of our opinion, what are the several different items included within “basic loss benefits.” To state them more fully, they are as provided in Sections 202 and 103 of the Act:

§ 1009.202 Basic loss benefits
(a) Allowable expense limits.—Allowable expense, as defined in section 103 of this act shall be provided or the equivalent in the form of a contract to provide for services required.
(b) Work loss limits.—Work loss, as defined in section 103 shall be provided:
(1) up to a monthly maximum of:
(A) one thousand dollars ($1,000) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capita income in the United States, according to . the latest available United States Department of Commerce figures; or
(B) the disclosed amount, in the case of a named insured who, prior to the accident resulting in injury, voluntarily discloses his actual monthly earnings to his obligor and agrees in writing with such obligor that such sum shall measure work loss; and
(2) up to a total amount of fifteen thousand dollars ($15,000).
(c) Replacement services losses.—Replacement services loss, as defined in section 103 shall be provided up to a daily maximum of twenty-five dollars ($25) for an aggregate period of one year.
(d) Survivors losses.—Survivors loss, as defined in section 103 shall be provided in an amount not to exceed five thousand dollars ($5,000).
40 P.S. § 1009.202(a)-(d).

The term “allowable expense” used in Section 202(a) is defined in Section 103 as follows:

“Allowable expense” means reasonable charges incurred for, or the reasonable value of (where no charges are incurred), reasonably needed and used products, services, and accommodations for:
(A) professional medical treatment and care;
(B) emergency health services;
(C) medical and vocational rehabilitation services;
(D) expenses directly related to the funeral, burial, cremation, or other form of disposition of the remains of a deceased victim, not to exceed one thousand five hundred dollars ($1,500); and
The term does not include that portion of a charge for a room in a hospital, clinic, convalescent, or nursing home, or any other institution engaged in providing nursing care and related services, in excess of a reasonable and customary charge for semiprivate accommodations, unless more intensive care is medically required; or any amount includable in work loss, replacement services loss, or survivor’s loss.

As one considers these sections, one’s immediate and clear, albeit preliminary, impression is that stacking basic loss benefits is prohibited. The event giving rise to the accident victim’s right to receive basic loss benefits is the accident. Nothing in any of the sections suggests that the amount of these benefits should vary with—be contingent upon—the number of vehicles for which security has been provided. To the contrary: to make basic loss benefits thus contingent seems inconsistent with the sections, especially when they are read in the light of the General Assembly’s statement of its findings and purposes.

Having found it “necessary” to adopt a “low-cost, comprehensive, and fair system” of restoration and compensation for victims of motor vehicle accidents, the General Assembly explained exactly the sort of system it considered to be “low-cost, comprehensive, and fair.” It is a system that, among other things, “assures every victim payment of all his basic medical and rehabilitation costs, and recovery of a reasonable amount of work loss, replacement services and survivor’s loss.” 40 P.S. § 1009.102(a)(6) (emphasis added). Thus the General Assembly made plain its intention that with respect to so,me items of loss (“basic medical and rehabilitation costs”) a limit on recovery should not be imposed (“payment of all” such losses should be assured), but that with respect to other items of loss (“work loss, replacement services and survivor’s loss”) limits on recovery should be imposed (“recovery of a reasonable amount”). This intention is implemented by Sections 202 and 103: in providing basic loss benefits, no limits are imposed in recovery of basic medical and rehabilitative costs, but limits are imposed on recovery of work loss, replacement services and survivor’s loss.

This distinction between unlimited and limited recovery is at least some indication that basic loss benefits should not be stacked. For stacking is a way to avoid a specified limit. But if recovery is unlimited, there is no need to stack. However, there is another feature of Section 202, which clearly manifests an intention that basic loss benefits may not be stacked.

In providing in Section 102(a)(6) that recovery of work loss, replacement services loss, and survivor’s loss should be limited to “a reasonable amount,” the General Assembly did not say what it meant by “reasonable.” In Section 202, it did say: up to $15,000 for work loss, $25 per day for an aggregate period of one year for replacement services loss, and up to $5,000 for survivor’s loss. This is simply another way of saying that to permit recovery of more than these amounts, which is what would happen if stacking were permitted, would be “unreasonable.”

This initial impression that the General Assembly intended to prohibit stacking is strengthened as one continues to examine the No-fault Act. In ascertaining the General Assembly’s intention, we are to consider “[t]he consequence of a particular interpretation.” 1 Pa.C.S.A. § 1921(c)(6). And the consequence of interpreting the No-fault Act as permitting stacking would be to defeat objectives that the General Assembly sought to achieve.

We have referred to the General Assembly’s findings that a no-fault system should be “fair” and “uniform[ ] as to [its] essential elements.” 40 P.S. § 1009.102(a)(6), (8). To permit stacking would render the system both unfair and nonuniform. Suppose two victims of automobile accidents, each having suffered a work loss of $60,000. Why should the victim who owns only one automobile be limited to recovering $15,000 work loss, while the other, who owns four automobiles, recover $60,000? Such a result would be an invidious discrimination, favoring the wealthy over those of modest means or less. If $15,000 is a reasonable recovery for the one individual, then it is for the other one, too.

To permit stacking of basic loss benefits would permit some victims to circumvent the system of compensation that the General Assembly has provided. The General Assembly recognized that in many cases losses would exceed the limits imposed by Section 202 of the No-fault Act. However, under the system of compensation that the General Assembly has provided, limits are not subject to being escaped by resort to stacking if by chance more than one vehicle was covered under the policy. Instead, the victims must recover losses in excess of the limits imposed by the No-fault Act by establishing fault. See Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975); Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980).

This two-tier, or divided, system of compensation—providing for recovery of limited amounts under a no-fault system of compensation, and amounts in excess of those limits by an action under the traditional tort system of compensation, in which fault must be proved—is of fundamental significance. In its findings explaining what it meant by “a low-cost, comprehensive, and fair” no-fault system, the General Assembly has stated that such a system is one that “eliminates the need to determine fault except when a victim is very seriously injured.” 40 P.S. § 1009.102(6)(B) (emphasis added). Moreover, in upholding the No-fault Act as constitutional, the Supreme Court emphasized that the Act “create[d] two classes of motor vehicle accident victims, each with different items of compensable damage:” one class of victims, who have been involved in relatively minor accidents, who must rely solely on no-fault recovery, and a second class, involved in serious accidents, who upon proof of fault in a tort action may recover general damages without limit, as the evidence may warrant. Singer v. Sheppard, supra 464 Pa. at 396-403, 346 A.2d at 901-05.

Thus, the General Assembly has said: “We are abolishing your right to sue in tort, within stated limits. If you want to recover damages outside those limits, you may, but to do so you must sue in tort, and prove fault.” If we were to hold that basic loss benefits may be stacked, we should suppose that instead of this, the General Assembly had said: “We are abolishing your right to sue in tort, but not within stated limits. If there is only one vehicle on the policy, your right to sue is abolished up to $15,000, but if there are four vehicles on the policy, it is abolished up to $60,000.” Were we to say this, however, we should rewrite the statute, and we may not do that. See Mayhugh v. Coon, supra; In re Private Detective License of Keibler Detective Agency, Inc., supra. Moreover, it is questionable whether such a variable abolition of the right to sue in tort could withstand constitutional challenge. For while the Court in Singer v. Sheppard, supra, did not consider whether the No-fault Act prohibited stacking, that issue not being presented, the Court did throughout its decision make plain its conception of the Act as creating two classes of litigants, defined by the limits imposed by the Act, not any number of classes, defined by the contingency of the number of motor vehicles on the insurance policy (a $15,000 class, if one vehicle; a $30,000, if two; and so on).

The conclusion that the General Assembly intended to prohibit stacking is still further supported by Sections 207 and 204 of the No-fault Act.

Section 207 provides that an obligor, such as Allstate, “shall offer ... added loss benefits ..., including ... loss excluded from basic loss benefits by limits on allowable expense, work loss, replacement services loss, and surviv- or’s loss____” 40 P.S. § 1009.207(a)(1). Thus, there must be the opportunity to purchase additional protection. But if the opportunity is not taken, the “limits on [the several items of loss included in basic loss benefits]” must be adhered to.

Section 204 establishes the source of basic loss benefits. For example, if the victim is insured, he must submit his claim to his own insurer; if uninsured, to the insurer of the vehicle in which he was riding when the accident occurred. 40 P.S. § 1009.204(a)(2), (3). Section 204(b) provides that if the victim is entitled to recover from more than one insurer, he may recover basic loss benefits from any one of them, and the one that pays the claim may then seek contribution from the other insurers:

(b) Multiple sources of equal property.—If two or more obligations to pay basic loss benefits apply equally to an injury under the priorities set forth in subsection (a) of this section, the obligor against whom a claim is asserted first shall process and pay the claim as if wholly responsible. Such obligor is thereafter entitled to recover contribution pro rata from any other such obligor for the basic loss benefits paid and for the costs of processing the claim. If contribution is sought among obligors responsible under paragraph (4) of subsection (a) of this section, proration shall be based on the number of involved motor vehicles.
40 P.S. § 1009.204(b).

These provisions implicitly prohibit stacking, for to permit stacking would be inconsistent with the General Assembly’s intention to ensure uniformity and fairness in the no-fault system. The trial court in Antanovich aptly illustrated the chaos that would result if stacking were permitted. Said the court:

Stacking under No-Fault may create nightmares.
Assume an uninsured pedestrian who dies as a result of the collision of four automobiles. The source of basic loss benefits in this situation is Section 204(a)(4). Only one of these vehicles is the source of such benefits. Section 204(b) says:
“The obligor against whom a claim is asserted first shall process and pay the claim as if wholly responsible. If contribution is sought among obligors responsible under paragraph (4) of the subsection (a) of this section proration shall be based on the number of involved motor vehicles.”
Assume in our example, that automobile A is one of four vehicles insured under the same policy, automobile B is one of two automobiles, C only one, and automobile D is uninsured.
What amount of work loss benefit is payable? If we stack the benefits, the answer would appear to depend against whom the claim is first asserted. If the spouse of the deceased victim asserts a claim first against automobile A’s carrier, she is entitled to $60,000; but if a claim is first made against automobile C’s carrier the amount is $15,000, (assuming stacking).
If the carrier for automobile A pays the $60,000, it is entitled to proration on the basis of the number of involved motor vehicles. What is the prorated share of the carrier for automobiles B and C?
Antanovich v. Allstate Insurance Company, No. 299 June Term 1981, slip op. at 6, n. 5 (Washington County 1982).

-c-

In arguing that the No-fault Act requires stacking, the Antanovichs and Brendlingers rely heavily on the General Assembly’s finding that “the maximum feasible restoration of all individuals injured and compensation of economic losses of the survivors of all individuals killed in motor vehicle accidents ... is essential to the humane and purposeful functioning of commerce[.]” 40 P.S. § 1009.-102(a)(3) (emphasis added). But this argument lacks merit. “[M]aximum feasible restoration” cannot be read as meaning “feasible only by resort to a method of compensation prohibited by the Act.” Rather, it must be read as meaning “feasible within the system of compensation provided by the Act.” No phrase in a statute may be read in isolation; the statute must always be read as a whole. Wilson v. Central Penn Industries, Inc., 306 Pa.Super. 146, 452 A.2d 257 (1982); In Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981). Moreover, when specific provisions of the statute are in conflict with general provisions, the specific provisions prevail. Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975); Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980). Thus, “maximum feasible restoration” must be read in the light of, and subject to, the specific provisions of Section 102(a)(6)(A) of the Act, that a “low-cost, comprehensive, and fair” no-fault system is one that assures “recovery of a reasonable amount of work loss, replacement services and survivor’s loss,” and of Section 202, that these “reasonable amount[s]” are not to exceed, respectively, $15,000, $25 per day for an aggregate period of a year, and $5,000. In the General Assembly’s view, $15,000 is the “maximum feasible restoration” of work loss, consistent with its purpose of providing a “low-cost, comprehensive, and fair” no-fault system.

The Antanovichs and Brendlingers also argue that they have paid for additional coverage and are therefore entitled to a greater no-fault recovery. Antanovich Brief at 24; Brendlinger Brief at 6. But this argument also lacks merit; indeed, it is disingenuous. For whatever additional premium was paid, because there was more than one vehicle on the policy, was not paid to enable the insured to stack basic loss benefits. As we have seen, the policy clearly prohibited stacking. What the Antanovichs’ and Brendlingers’ argument is, when accurately stated, is that the premium they paid should entitle them to stack despite the fact that when they paid it, they knew that the policy prohibited stacking. If they wanted additional coverage, beyond the limits on basic loss benefits imposed by the No-fault Act, they had only to ask for it, and under the Act, Allstate would have been obliged to provide it. 40 P.S. § 1009.207(a)(1).

Finally, the Antanovichs and Brendlingers argue that they should be allowed to stack basic loss benefits because uninsured motorist benefits may be stacked. If one, why not the other? In response to this argument, another court has said:

In support of its claim to cumulative benefits plaintiff draws an analogy to uninsured motorist coverage in which Pennsylvania courts have allowed stacking in cases where one policy covered two or more vehicles. Marchese v. Aetna Casualty Insurance Co., 284 Pa.Super. 579, 426 A.2d 646 (1981); Sones v. Aetna Casualty Insurance Co., 270 Pa.Super. 330, 411 A.2d 552 (1979). These cases have allowed stacking based upon public policy and legislative intent to provide protection to innocent victims from injuries caused by the negligence of irresponsible drivers. Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 395, 241 A.2d 112 (1968). Plaintiff alleges that the public policy behind the Uninsured Motorist Act is the same as that underlying the No-Fault Act. Therefore stacking of no-fault benefits should similarly be permitted.
This argument fails, however, because the analogy to the Uninsured Motorist Act is faulty. The Uninsured Motorist Act was enacted specifically to provide coverage to innocent victims of negligent acts of uninsured third parties. The Act was not intended to limit causes of action against tortfeasors, but to assure recovery where tortfeasors are financially unable to pay any judgment awarded. The Act does not place any statutory maximum on the amount of coverage any individual insured can obtain, only the minimum amount of coverage each insurance policy must provide.
The No-Fault Act, on the other hand, has an entirely different purpose. The No-Fault Act provides for a specific amount of possible recovery to be awarded to victims of motor vehicle accidents, regardless of fault. This arrangement allows for prompt compensation to victims. However, once the statutory ceilings are exceeded, the negligent party is still liable for any further damages caused by his actions. The cause of action against the faulty driver is not limited at this point. Furthermore, the very fact that, unlike the Uninsured Motorist Act, the No-Fault Act does contain statutory ceilings in the amount of recovery indicates an intent to limit the amount of no-fault recovery under the statute. In the Harleysville case, the Pennsylvania Supreme Court, in their decision to allow stacking of uninsured motorist benefits stated:
The purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers. The amount of the coverage to be afforded by the uninsured motorist feature of the policy is set by the statute, but nowhere, explicitly or implicitly, does the act place a limit on the total amount a victim may recover, if he suffers a loss resulting from the negligence of an uninsured motorist, (emphasis added) 429 Pa. at 395, 241 A.2d 112.
Kirsch v. Nationwide Insurance Company, 532 F.Supp. 766, 768 (W.D.Pa.1982).

This is excellently put, and we see no need to add to it.

-2-

The Antanovichs present the additional question whether work loss benefits are to be paid in a lump sum to the victim’s survivors when the victim has died as a result of injuries sustained in the accident.

Section 106(a) of the No-fault Act provides:
(a) In general.—
(1) No-fault benefits are payable monthly as loss accrues. Loss accrues not when injury occurs, but as allowable expense, work loss and replacement services loss or survivor’s loss is sustained.
40 P.S. § 1009.106(a).

Allstate argues that work loss is “sustained” only when the victim would have received the income, had he lived. Some cases have suggested that such benefits should be paid monthly, as if the victim had lived. E.g., Baker v. Aetna Casualty & Surety Company, 309 Pa.Super. 81, 96, 454 A.2d 1092, 1100 (1981); Wercoch v. Liberty Mutual Insurance Company, 287 Pa.Super. 45, 52 n. 3, 429 A.2d 712, 715 n. 3 (1981). However, Hartleb v. Ohio Casualty Insurance Co., 305 Pa.Super. 231, 235, 451 A.2d 506, 510 (1982), holds that work loss benefits should be paid in a lump sum.

We can think of only one reason for the requirement that work loss benefits are to be paid monthly, namely, that it is not known when, or whether, the victim will be able to return to work. But when an accident results in death, this reasoning is inapplicable. It is known that the victim will not return to work. The amount of work loss benefits is therefore certain, and there is no need to extend the payments up to a period of fifteen months. See 40 P.S. § 1009.202(b). We therefore hold that post-mortem work loss benefits are to be paid in a lump sum. To the extent they are contrary, Baker and Wercoch are disapproved.

Reversed and remanded for the entry of judgments consistent with this opinion.

      . In addition to Antanovich v. Allstate Insurance Company, No. 299 June Term 1981 (Washington County 1982), which is one of the two appeals before us, Pontius v. United States Fidelity and Guaranty Company, 102 Dauphin 432 (1981), has held that basic loss benefits may not be stacked. See also Kirsch v. Nationwide Insurance Company, 532 F.Supp. 766 (W.D.Pa.1982).
      In addition to Brendlinger v. Allstate Insurance Company, No. 8420 Westmoreland County 1981, which is the other appeal before us, the following cases have held that basic loss benefits may be stacked: Lias v. Erie Insurance Group, No. 1612 Armstrong County 1981 (opinion sur exceptions 5/25/83); Isenberg v. Nationwide Mutual Insurance Company, 131 Pittsburgh L.J. 114 (1983); O’Bryan v. United States Fidelity and Guaranty Company No. 80-S-3732 (York County 1982); Heinsey v. Nationwide Insurance Company, 74 Berks L.J. 87 (1981); Wilson v. Keystone Insurance Company, 7 Phila. 274 (1981).

      . The Brendlingers elected to have work loss benefits paid in a lump sum settlement, and were therefore paid the present worth of $15,000. Brief for Allstate at 5 n. 3.

      . The No-fault Act is based upon S. 354, 93d Cong., 2d Sess. (1974), the proposed National No-Fault Motor Vehicle Insurance Act. The statement of legislative findings and purposes contained in the Pennsylvania Act is taken from the National Act. Our review of the no-fault statutes of twelve other states discloses that they contain either no statement of purposes, e.g., Ct.Gen.Stat.Ann. § 38-319 et seq. (West Cum.Supp. 1983-1984); Ga.Code Ann. § 33-34-1 et seq. (1982); Hawaii Rev.Stat. § 294-2 et seq. (Supp.1982); Mass.Gen.Laws Ann. c. 90, § 34A et seq. (West 1969 & Supp.1983-1984); N.J.Stat.Ann. 36:6A-1 et seq. (Supp.1982-1983), or a very brief one, e.g., Colo.Rev.Stat. § 10-4-703 (1973); Fla.Stat.Ann. § 627.731 (West Supp.1983); Kan. Stat.Ann. § 40-3102 (1981); Ky.Rev.Stat. § 304.39-010 et seq. (1981); N.D.Cent.Code § 26-41-01 et seq. (1978 & Supp.1981); S. Carolina Code Ann. § 56-11-10 et seq. (Law.Co-op.1976 & Supp.1982); Utah Code Ann. § 31-41-1 et seq. (1973 & Supp.1981).
      Counsel for the Brendlingers direct us to numerous authorities in the no-fault insurance field to support the argument that the No-fault Act requires stacking. E.g., Keeton & O’Connell, Basic Protection for the Accident Victim (1962); Franklin, Chanin & Mark, Accidents, Money and the Law: A Study of the Economics of Personal Injury Litigation, 61 Colum.L.Rev. 1 (1961); Hart, National No-Fault Auto Insurance: The People Need it Now, 21 Cath.U.L.Rev. (1971); Rosenberg & Sovern, Delay and the Dynamics of Personal Injury Litigation, 59 Colum.L.Rev. 1115 (1959). While we find these sources instructive on the circumstances surrounding the enactment of no-fault legislation generally, they are not especially helpful in ascertaining the intention of the Pennsylvania General Assembly in enacting the No-fault Act.

      . The Antanovichs and Brendlingers direct us to Wasche v. Milbank Mutual Insurance Company, 268 N.W.2d 913 (Minn.1978), and Travelers Insurance Company v. Lopez, 93 Nev. 463, 567 P.2d 471 (Nev.1977), cases that have permitted stacking of benefits analogous to basic loss benefits when the injured person or his survivor claims medical expense benefits under more than one policy of insurance. We are not persuaded by these cases. While the Wasche court relied on cases allowing stacking of uninsured motorist benefits, and the Lopez court based its decision on public policy, we note that the Minnesota and Nevada No-fault acts limit the amount recoverable for medical expenses under one policy. The Antanovichs and Brendlingers do not seek to stack medical expense benefits since these may be recovered to the extent of the loss under the Pennsylvania No-fault Act. It is also noteworthy that the Michigan and New Jersey No-fault acts, under which the courts have denied stacking, O’Hannesian v. Detroit Automobile Inter-Insurance Exchange, 110 Mich.App. 280, 312 N.W.2d 229 (1981); Riccio v. New Jersey Manufacturers Insurance Company, 179 N.J.Super. 65, 430 A.2d 641 (App.Div.1981), are like the Pennsylvania act in that they place no limits on the amount that may be recovered for medical expenses. Kansas and Georgia courts have also denied stacking, but the statutes in those states have explicit anti-stacking provisions. Georgia Casualty & Surety Company v. Waters, 146 Ga. App. 149, 246 S.E.2d 202 (1978); McNemee v. Farmers Insurance Group, 228 Kan. 211, 612 P.2d 645 (1980). See Ga.Code Ann. § 56-3403b (1982); Kan.Stat.Ann. § 40-3108(a) (1981). Though of some interest, these cases from other jurisdictions cannot of course be dispositive of the question of stacking under the Pennsylvania No-fault Act, for as noted, see note 3 supra, the Pennsylvania Act is unique in that it contains a comprehensive statement of purposes.

      . We have not overlooked Allstate’s argument that its premiums are calculated on the basis of the regulations of the Insurance Commissioner, with the expectation that its maximum liability for work loss benefits is $15,000. Allstate tells us that if stacking were required, insurance premiums paid by Pennsylvania insureds to all insurers would have increased $35 million in 1980. Antanovich Record 26a-27a. We have no way of appraising the accuracy of Allstate’s statistics, and they have played no part in our decision.


source: Caselaw Access Project

author:
CAVANAUGH, Judge:
      CIRILLO, Judge,

license: Public Domain

text:
    467 A.2d 355
    COMMONWEALTH of Pennsylvania, Appellee, v. Linn SIMLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 24, 1983.
    Filed Oct. 14, 1983.

      Paul David Boas, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CAVANAUGH, Judge:

Appellant Linn Simler was tried by a jury and convicted of simple assault. Post-verdict motions were denied and sentence was imposed. Appellant, represented by new counsel, took a direct appeal to this court, 280 Pa.Super. 154, 421 A.2d 451, raising the issue of trial counsel’s ineffectiveness. Because we were unable to resolve the ineffectiveness issues on the record before us, we vacated the judgment of sentence and remanded the case for an eviden-tiary hearing. A hearing was held and the lower court found that trial counsel had not been ineffective. The judgment of sentence was reimposed and the instant appeal followed. Appellant now claims, inter alia, that trial counsel was ineffective for failing to call character witnesses on his behalf at trial. We agree and, therefore, reverse the judgment of sentence and remand for a new trial.

The simple assault charge brought against appellant arose out of an incident which occurred on February 7, 1978. On that evening, the appellant became involved in a dispute with the owner of a dining and dancing establishment in suburban Pittsburgh. The manager asked appellant to leave, but he remained at his table. Shortly thereafter, the police arrived and appellant was escorted out. Appellant was licensed to carry a firearm and had one on his person at that time. He willingly relinquished his gun and produced his gun permit as requested by Officer Palon-der. An argument ensued, however, when Officer Palonder informed appellant that because appellant appeared intoxicated, his gun and permit were going to be confiscated and could be picked up at the police station the following morning. Appellant was ultimately arrested for disorderly conduct and taken to the police station.

According to the Commonwealth’s evidence, the appellant, while in custody at the police station, kneed Officer Palonder in the groin. This was the basis of the simple assault charge. Appellant testified that while at the station, his hair was grabbed and he was punched in the face and that, following the melee, his nose was bleeding and his lip was split. He maintained that he never swung at or kicked the officers. The police agreed that appellant did receive some injuries but claimed that they were sustained when Officer Palonder, having been kneed in the groin, pushed appellant away, causing him to fall and hit his face against the radiator. Since appellant was found guilty of simple assault, the jury obviously believed the Commonwealth’s version of the events rather than appellant’s.

As we stated in Commonwealth v. Jennings, 285 Pa.Super. 295, 298-99, 427 A.2d 231, 232 (1981):

[W]hen confronted with a claim of ineffectiveness of counsel, this Court utilizes a two-step analysis. The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests, (citations omitted).

Certainly there is arguable merit in appellant’s claim that his attorney should have called character witnesses in his behalf. Character evidence is always admissible for the defendant in a criminal case. In fact, “[ejvidence of good character is substantive and positive evidence, not a mere make-weight to be considered in a doubtful case, and ... is an independent factor which may of itself engender a reasonable doubt or produce a conclusion of innocence.” Commonwealth v. Padden, 160 Pa.Super. 269, 275, 50 A.2d 722, 725 (1947). See also, Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978); Commonwealth v. Yeager, 314 Pa.Super. 524, 461 A.2d 281 (1983); Commonwealth v. Farrior, 312 Pa.Super. 408, 458 A.2d 1356 (1983); Commonwealth v. Gaines, 167 Pa.Super. 485, 75 A.2d 617 (1950). Character evidence could have been a major factor in the trial of this case since virtually the only issue was the credibility of the police witnesses versus that of appellant. Commonwealth v. William Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983); Commonwealth v. Shapiro, 223 Pa.Super. 15, 297 A.2d 161 (1972).

We must now ascertain whether appellant’s counsel had a reasonable basis for not calling any character witnesses. Apparently, appellant did not discuss his case directly with his trial attorney, Mr. Diamond, until the morning of the trial, although he had discussed the case with Mr. Diamond’s associate. Appellant testified at the evidentiary hearing that he told Mr. Diamond that he had character witnesses readily available whenever he needed them, and that Mr. Diamond replied, “I don’t think we need them at this time. I will worry about that later.” (N.T. September 12, 1980, at 50). Appellant said he never got as far as naming the potential witnesses because Mr. Diamond never got back to him about it. At the hearing, appellant did name several people who had been ready to testify; one in particular who had told appellant, “I have a suit ready. When you are ready, call me.” (N.T. September 12, 1980 at 52).

Mr. Diamond testified at the evidentiary hearing that there was one potential character witness, a constable named Bonny Burns, who was present in the courtroom at the time of the trial. He considered calling her as a witness but decided not to because she told Mr. Diamond that although appellant was a very honest man as a whole, he had a propensity to be hot headed. (N.T. September 12, 1980 at 29). Mr. Diamond testified that he could not recall whether appellant had asked him to call other character witnesses. It is clear that Mr. Diamond did not pursue the possibility of obtaining other character witnesses despite knowing that there was a substantial issue of credibility involved and that appellant’s trait of peacefulness was at issue.

Assuming, arguendo, that Mr. Diamond had a reasonable basis for not calling Bonny Burns as a character witness, that does not explain his failure to pursue the possibility of obtaining other character witnesses who would testify on appellant’s behalf. We do not feel that there was a reasonable basis for counsel’s failure to pursue the issue and we hold, therefore, that appellant was denied the. effective assistance of trial counsel. See Commonwealth v. William Luther, supra, (counsel ineffective for failing to call character witnesses on behalf of defendant in rape prosecution).

Judgment of sentence reversed. Case remanded for new trial. We do not retain jurisdiction.

CIRILLO, J., files dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. The majority seems to acknowledge that counsel had a reasonable basis for not calling Bonny Burns as a character witness. See: Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, the majority feels that counsel was ineffective for failing to pursue the possibility of obtaining other character witnesses who would testify on behalf of the appellant. I am compelled to disagree.

There is a presumption in the law that counsel is effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Norris, 305 Pa.Super. 206, 451 A.2d 494 (1982). Thus, the burden is on the petitioner to prove counsel’s ineffectiveness. Commonwealth v. Helvy, 278 Pa.Super. 458, 462, 420 A.2d 631, 633 (1980).

At the evidentiary hearing regarding the issue of trial counsel’s ineffectiveness, the appellant testified as follows:

MR. ZUNICH: Okay. Now, Mr. Simler, when you did talk with him, or during the course of trial, did you ever have any discussions regarding character witnesses?
APPELLANT: Yes, I did.
MR. ZUNICH: Could you tell us about that?
APPELLANT: I told Mr. Diamond that I had character witnesses that would be readily available whenever he needed them. And he said: I don’t think we need them at this time. I will worry about that later.
MR. ZUNICH: And did, in fact, he ever call character witnesses?
APPELLANT: No, sir.
MR. ZUNICH: Did you let him know that you had more than one available?
APPELLANT: Yes.
MR. ZUNICH: Did you let him know who these people were?
APPELLANT: We never got as far as to sit down and write names down. It wasn’t material at that time.
MR. ZUNICH: Did he ever come back and say: who are these character witnesses?
APPELLANT: No.

(N.T. September 12, 1980 at 50-51).

The appellant’s failure at the time of trial to offer to counsel the names of these other possible character witnesses and the substance of their proposed testimony vindicates counsel from allegations of ineffectiveness. See: Commonwealth v. Blackwell, 312 Pa.Super. 117, 458 A.2d 541 (1983); Commonwealth v. Oliver, 280 Pa.Super. 274, 421 A.2d 719 (1980).

Trial counsel need not ring doorbells in order to procure character witnesses for trial. It is the duty of the appellant to at least furnish counsel with the names of possible witnesses and to give a clue as to the content of their testimony. In this instance, however, the appellant has made only general claims that he had some witnesses available. Without more, the appellant has failed to carry his burden in proving the ineffective assistance of counsel. Accordingly, I would affirm the judgment of sentence of the court below.

      . Due to our disposition of the case based on this claim, we need not address appellant’s claims that counsel was ineffective for failing to object to questions asked of appellant by the district attorney regarding his ownership of firearms and prior criminal activity.

      . It was not until the day of trial that appellant realized Mr. Diamond would be trying the case. Appellant had expected the case to be handled by Mr. Diamond’s associate.


author: BROSKY, Judge:

text:
    467 A.2d 359
    Paul M. MOORMAN and Diana C. Moorman, husband and wife v. J.B. TINGLE and Alma Tingle, husband and wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 29, 1983.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Granted Mar. 7, 1984.

      Susan H. Wilkie, Pittsburgh, for appellants.
    Richard A. Bell, Clearfield, for appellees.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

In this appeal, we are asked, to review an order awarding custody of Michael David Shofestall to his mother, Diana C. Moorman. Appellants, the Tingles, are Michael’s maternal grandparents with whom he lived for most of his first 5V2 years and who ask that custody be awarded to them. For the reasons that follow, we affirm.

Diana Moorman became pregnant with Michael in 1976 when she was an adolescent. She married his father before Michael was born, but the union was a short one, ending in divorce the following year. For a period prior to and around the time of their divorce, Diana and for some time, her husband, apparently resided in a trailer located on her parents’ property. It is undisputed that Michael lived on his grandparents’ property and was largely under their care from the time he was approximately six weeks old. Diana resided at her parents’ residence, apparently with some irregularity, until November, 1977 when she decided at the suggestion of a sister to move from their home in Rockton, Pennsylvania to Dayton, Ohio. In January, 1978, Diana began studying at Wright University where she was also employed.

Prior to her move, Diana requested that her parents care for Michael. Diana claims that it was understood that the arrangement was to be a temporary one; her parents disclaim any such agreement. In any event, Diana and Michael’s father agreed in November, 1977 that her parents would have custody of Michael and both signed consent forms to that effect. The Tingles sought and received an order of court awarding custody to them on December 30, 1977.

Diana visited with Michael following the custody award, although she and her parents disagree as to the frequency of such visits. The lower court found them to be “periodic.”

In August, 1979, Diana married Paul Moorman, who was also a Wright University student. Their first child was born in June, 1980.

In March, 1980, Diana commenced legal proceedings to obtain custody of Michael. In August, 1980, a consent order was entered which provided that Diana would have gradually increasing periods of partial custody, culminating in full custody in approximately one year. Unfortunately, the parties did not comply with this order and in July, 1981, a hearing was held to determine custody.

Following that hearing and an additional one held in March, 1982, the lower court issued its orders of April 19 and April 21, 1982 which are the subjects of this appeal and which directed that custody be given to Diana Moorman.

Appellants raise several issues but primarily they contend that the lower court abused its discretion in awarding custody of Michael to his mother despite the testimony of psychologists who said that Michael would suffer irreparable harm if he were forced to move from his grandparents’ home.

It is well established that our scope of review in custody cases is broad. Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). Nonetheless, a broad scope of review should not be construed as providing the reviewing tribunal with a license to nullify the fact-finding functions of the court of the first instance. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). The trial court is in a better position to appraise the credibility of witnesses and we will reverse only for an abuse of discretion. We are not, however, bound by the conclusions or inferences drawn from the facts by the trial court. Ferencak v. Moore, 300 Pa.Super. 28, 445 A.2d 1282 (1982).

In Ellerbe v. Hooks, 490 Pa. 363, 367-8, 416 A.2d 512, 513-14 (1980), our Supreme Court adopted the standard to be applied in custody disputes between a parent and third party which was described by Judge Spaeth of our court in In Re Custody of Hernandez, 249 Pa.Super. 274, 286, 376 A.2d 648, 654 (1977), as follows:

“When the judge is hearing a dispute between the parents, or a parent, and a third party, ... [t]he question still is, what is in the child’s best interest? However, the parties do not start out even; the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.”

Appellants, therefore, were faced with a very heavy burden in their effort to retain custody of Michael. It is because we agree with the trial judge’s conclusion that they failed to meet this burden that we affirm.

Appellants’ main argument in support of their custody request is that Michael would suffer irreparable harm if separated from them. In support of this argument, they introduced the testimony of Dr. Patricia Piper, a psychologist who had been treating Michael periodically since 1980. Dr. Piper expressed the opinion that the trauma suffered by Michael if he were forced to leave his grandparents would surely cause him to suffer psychological damage. She explained that the harm would result because Michael, who at the time of the hearing was 5V2 years old, viewed his grandparents as the primary nurturing figures in his life and that Michael would have a less than 50 percent chance of recovering from the trauma.

Dr. Stephen A. Ragusea, a psychologist appointed by the court to perform psychological testing and evaluation of the parties also recommended in a report admitted into evidence, that custody remain with the Tingles. Dr. Ragusea noted particularly the anxiety that Michael suffered at the thought of leaving his grandparents. He did observe in his report, however, that he believed that anxiety could be alleviated if the Tingles were to adopt a different attitude toward their daughter.

Michael’s pediatrician testified that Michael seemed to suffer some physical problems as a result of his anxiety about the situation, although we did not get the impression that he considered the problems to be serious.

The Moormans called as a witness Dr. William H. White, also a psychologist. Unlike Dr. Ragusea, who had interviewed and tested all of the parties, Dr. White’s testimony was based almost solely on his review of the reports made by Dr. Ragusea and a one-hour interview with Mrs. Moor-man. Dr. White testified that, inter alia, he believed that custody should be granted to the Moormans because their home offered a better climate for intimacy with the parental figures than did the Tingles.

The above-mentioned witnesses testified at the July, 1981 hearing. In March, 1982, an additional hearing was held at the request of the Moormans who presented at that time the testimony of Dr. Joseph S. Silverman, a psychiatrist who testified basically that although he believed that Dr. Ragusea had made a good report, he disagreed with Dr. Ragusea’s conclusion that the principle of parental continuity should be the paramount concern of the court. Dr. Ragusea had concluded in his report that because Michael had become “bonded” to the Tingles, he should remain with them. Dr. Silverman concluded that Michael’s opportunity to grow intellectually, emotionally, philosophically would be greater in the Moormans’ home than the Tingles’. Like Dr. White, Dr. Silverman had not interviewed Michael. His testimony was directed to his review and critique of Dr. Ragusea’s report. Dr. Silverman said that he believed Michael would recover from the trauma caused by change in custody.

The lower court judge after reciting, as we have, the basic thrust of the experts’ testimony, concluded that despite the fears of Dr. Ragusea and Dr. Piper, that Michael would be hurt by a change in custody, that he found that such damage would be remediable.

As a fact finder, it was clearly within the judge’s purview to determine what of the testimony he considered credible. He was not required to accept as true the dire predictions of Drs. Ragusea and Piper. As Dr. Piper herself said, “Psychology is not the type of science that you can ... use numbers very specifically and accurately...”

The judge did not reject in this case, concrete, irrefutable, evidence. Instead, he determined that the testimony of the psychologists and Tingles was not sufficient to meet the heavy burden placed on the Tingles to show by convincing evidence that Michael’s best interests would be served by awarding custody to them. See Ellerbe, supra.

Our conclusion that the judge did not abuse his discretion is supported by precedent in similar cases.

In Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980), this court was presented with a similar situation.

The child in Palmer had lived with his maternal grandparents for almost his entire life. They had cared for him as if he were their son. The natural father sought custody of his son when the boy was approximately six years of age. The grandparents opposed the change and presented the testimony of a psychologist who said that the boy would suffer severe trauma if separated from his grandparents.

The lower court in Palmer awarded custody to the father citing the testimony of a court-appointed psychologist who had said that although the boy would find, the move difficult, he could recover from the trauma.

Interestingly, we agreed that the trial court in Palmer correctly declined to grant custody to the grandparents on the basis that the child had stated that to be his preference. We wrote, “[TJhis preference for consistency must be outweighed by the right of the natural parent to custody.” Id., 279 Pa.Superior Ct. at 469, 421 A.2d at 295.

Appellants urge us to distinguish the present case from Palmer since in the present case, the court appointed psychologist concluded that Michael would suffer harm from a custody change.

Admittedly, Dr. Ragusea’s testimony was not as helpful to the appellee as was the testimony of the expert in Palmer to the father. Nevertheless, we find the principles enunciated in Palmer helpful.

In that opinion, we reiterated that the natural parents are not on equal footing with third parties. They are entitled to custody unless convincing reasons are shown that the child’s best interests would be served by an award to a third party.

We note that Dr. Ragusea’s report is far from completely favorable to the Tingles. True, he recommends that custody remain with them, but he does so based on a continuity theory. He also notes that when alone with the Moormans, Michael interacted well with them. He wrote, “It may be that much of the discomfort that Michael experienced during visitations (with the Moormans) could have been avoided had there been greater support from the Tingles and less tension between all the adults involved.” Moreover, Dr. Ragusea found Mrs. Moorman well adjusted and to appear to have “good parenting skills.”

Dr. Ragusea concluded that Mrs. Moorman sought custody of Michael because she believed that to be in his best interests.

Of Mr. Tingle, on the other hand, Dr. Ragusea wrote, The loss of his son many years ago in an accidental drowning greatly saddened Mr. Tingle. Indeed, in many ways, Michael appears to be his replacement for that lost child and this is one of the reasons why Mr. Tingle is struggling so hard to keep him.

Even in the segment of his report wherein Dr. Ragusea recommends that custody be awarded to the. Tingles, he notes as disadvantages that they are somewhat rigid, limited by health and age (both were in their fifties at the time of the hearing, while appellees were in their early twenties). Importantly, he concludes, “Certainly, there are no grounds upon which to claim that they are grossly unfit to continue functioning as Michael’s parents.” We find this statement a telling one.

The Tingles are not entitled to custody just because they are not grossly unfit and have been Michael’s caretakers; instead, the burden is on them to show why Michael’s mother is unfit to care for him. That, they have not done.

See generally, Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983); Commonwealth ex rel. Davenport v. Montgomery County Children & Youth Services, 305 Pa.Super. 545, 451 A.2d 781 (1982) (allocatur granted 2/17/83); compare: Albright v. Commonwealth ex rel. Fetters, supra.; Ellerbe v. Hooks, supra.

Appellants also argue that the lower court committed reversible error in admitting into evidence a letter from social workers whose letter contained the recommendation that the Moormans assume custody of Michael as well, as the conclusion that the Moormans’ home is “most appropriate.” The authors of the letter did not testify and appellants argue that their letter is therefore hearsay.

The letter in question does not appear in the record before us, although the transcript of the July, 1981 hearing indicates that it was in fact admitted into evidence over appellants’ objection. Therefore, we believe that although the original letter introduced at trial is not before us, we should comment on the propriety of its introduction. We note that we undertake to review the letter only because the record that we do have indicates that it was in part introduced. It is axiomatic that an appellate court will review only matters of record.

A copy of the subject correspondence contained in appellants’ reproduced record indicates that it explains the conclusions of two Ohio social workers as to the suitability of the Moormans as parents and as to their financial status and condition of their home.

In Palmer v. Tokarek, 279 Pa.Super. 458, 475, 421 A.2d 289, 298 (1980), we explained:

... Reports of investigators, agents and doctors cannot be received in evidence, or considered by the court in a contested case [citation omitted]. The ... agents ... must themselves be produced, sworn and examined as witnesses and be subject to cross-examination.

The letter should not have been introduced. However, we conclude that although its use was in error, that error was harmless. That is, we find that the conclusion reached by the lower court is supportable even without resort to the correspondence and therefore we will not reverse on these grounds.

We explained in Kessler v. Gregory, 271 Pa.Super. 121, 124-25, 412 A.2d 605, 607 (1979):

Among the factors to be considered in determining the best interests of the child are the character and fitness of the parties seeking custody, their respective homes, their ability to adequately care for the child, and their ability to financially provide for the child. Shoemaker Appeal, 396 Pa. 378, 381, 152 A.2d 666, 668 (1959). However, “ 'Unless the income of one party is so inadequate as to preclude raising the [child] in a decent manner, the matter of relative incomes is irrelevant.’ ” (Citations omitted.)

There is no indication in the record that the income of any of the parties is so inadequate as to preclude raising Michael. Both Mr. and Mrs. Moorman testified that their family lives in a three bedroom, two bath house. Mrs. Moorman explained that there is a yard adjacent to the house. Mr. Moorman earns $28,000 a year as a systems programmer and is a college graduate pursuing a masters degree. Mrs. Moorman is not employed' outside the home and cares for their young daughter.

Although we would have preferred to see testimony from an impartial observer as to the physical surroundings of the Moorman house, we are satisfied that the lower court had sufficient basis to conclude that they were adequate. Mr. Tingle, who had visited that home, did not contest the testimony of the Moormans in this regard; in fact, on cross-examination, he said that theirs is a “nice home.”

We also disagree with appellants’ claim that separate counsel should have been appointed to represent Michael’s interests. Of course, there is ill will between the parties, as appellants claim. We note, however, that there is almost always bitterness between the parties to a custody fight. The facts of this case do not indicate special circumstances requiring that Michael be represented separately. Both parties, while disagreeing as to how best to help Michael, nevertheless focused on his best interests. Independent counsel was not necessary. See Palmer v. Tokarek, supra.

We observe finally that although the parties to this case may presently bear some ill feelings towards one another, it is clear that they all love Michael and that Michael needs the love and affection of both the mother and the grandparents. It would certainly help Michael to adjust to his new home, as well as to develop into a full, happy person, if his mother and grandparents could get along.

Orders affirmed.

      . Appellants’ issues nos. 1, 5 and 6 essentially ask the same question and we will not refer to the stated issues separately, but respond to all in the following discussion.

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

      . But see Justice Flaherty’s Concurring Opinion in Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983), in which he criticizes the use of concepts like "right” with respect to custody cases and advocates strict adherence to the “best interest of the child” approach.

      . We believe that we have herein responded to appellants’ issues nos. 2 and 4.


author: W1EAND, Judge:

text:
    467 A.2d 364
    COMMONWEALTH of Pennsylvania v. Wayne PRITCHETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 28, 1983.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.

      Donald S. Bronstein, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before ROWLEY, WIEAND and POPOVICH, JJ.
   W1EAND, Judge:

Wayne Pritchett was tried by jury and found guilty of first degree murder, conspiracy and weapons offenses in connection with the ambush shooting of a rival gang member in Philadelphia on September 19, 1973. A sentence of life imprisonment was affirmed by the Supreme Court on direct appeal. Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976). On April 2, 1980, Pritchett filed a coun-selled P.C.H.A. petition which was denied after hearing. On appeal, Pritchett argues that trial counsel, who also represented him on direct appeal, was constitutionally ineffective (1) because he failed to object at trial to the introduction of inculpatory statements which allegedly were the product of unnecessary delay between arrest and arraignment; (2) because he failed to argue that Pritchett’s incul-patory statements had been obtained by police in violation of the interested adult rule; and (3) because he failed to raise on direct appeal the trial court’s refusal to instruct the jury on involuntary manslaughter. There is no merit in these contentions; and, therefore, we affirm the order dismissing Pritchett’s P.C.H.A. petition.

Pritchett was arrested at or about 3:15 a.m. on October 23, 1973. Upon arrival at the Police Administration Building, he was left alone from 4:02 a.m. until 5:27 a.m. At that time a police detective entered the room and advised Pritch-ett of his Miranda rights. Pritchett waived those rights and gave an inculpatory statement in which he said that he had been a member of the gang which had killed the victim and that he had been present with the killer at the time of the shooting. He denied, however, that he had done the shooting. This interview continued until 7:15 a.m., when Pritchett’s father was advised that his son had given a statement. At 8:00 a.m., Pritchett was taken to the rest room, given water and again left alone. At 9:25 a.m. he was told that a co-defendant had accused him of firing the shotgun which killed the victim. Pritchett was fed, met with his father and agreed to submit to a polygraph examination. This examination began at 12:15 p.m. After it had been completed, Pritchett was told that he had failed it. He thereupon confessed, at 2:30 p.m., to pulling the trigger of the fatal weapon. He was fed again and allowed to rest. He signed a formal, written statement in his father’s presence at 5:20 p.m.

Trial counsel filed a pre-trial motion to suppress Pritch-ett’s confession on grounds that the police had used coercion, including physical abuse, threats and vile language, to extract the confession and that Pritchett had been too frightened to comprehend what he was signing. The motion was denied, and the objection was not renewed at trial. On direct appeal, counsel attempted to argue that Pritch-ett’s statements had been the result of unnecessary pre-ar-raignment delay and that their suppression was required by Pa.R.Crim.P. 118 (now Pa.R.Crim.P. 130) and the holding in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The Supreme Court held that the issue had not been preserved by prior objection and refused to consider it. Commonwealth v. Pritchett, supra. Pritchett contends that trial counsel was ineffective for failing to preserve the issue for appellate review.

We determine first whether there is arguable merit to the claim that appellant’s confessions were the product of undue pre-arraignment delay. Only if we determine that there would have been arguable merit to such a contention must we inquire as to counsel’s reasons for not preserving the claim. See: Commonwealth v. Tann, 500 Pa. 593, 599-600, 459 A.2d 322, 326 (1983); Commonwealth v. Linch, 318 Pa.Super. 590, 592, 465 A.2d 1010, 1011 (1983); Commonwealth v. Costanzo, 309 Pa.Super. 267, 271-72, 455 A.2d 153, 155 (1983); Commonwealth v. Tran, 307 Pa.Super. 489, 496, 453 A.2d 993, 996 (1982).

Pritchett’s arrest was in 1973, well before the Supreme Court’s decision in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), which established a six hour rule. Under the Futch rule, a three pronged test was applicable to determine whether delay between arrest and arraignment required exclusion of an inculpatory statement given during such interval. “The delay must be unnecessary; evidence that is prejudicial must be obtained; and the incriminating evidence must be reasonably related to the delay.” Commonwealth v. Leroy Smith, 487 Pa. 626, 630, 410 A.2d 787, 789-790 (1980), quoting Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419, 420 (1974); Commonwealth v. Van Cliff, 483 Pa. 576, 587, 397 A.2d 1173, 1179, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979); Commonwealth v. Keith Smith, 317 Pa.Super. 118, 125, 463 A.2d 1113, 1116 (1983); Commonwealth v. Miller, 293 Pa.Super. 281, 286, 438 A.2d 995, 997 (1981) ; Commonwealth v. Hadden, 265 Pa.Super. 112, 115, 401 A.2d 826, 827 (1979). See also: Commonwealth v. Jenkins, 500 Pa. 144, 146 n. 2, 454 A.2d 1004, 1005 n. 2 (1982) (collecting cases). However, the only period relevant to a determination of whether there has been undue delay is the time between appellant’s arrest and the giving of his initial incriminating statement. Commonwealth v. Bogan, 482 Pa. 151, 159, 393 A.2d 424, 428 (1978) (plurality opinion); Commonwealth v. Carter, 481 Pa. 495, 500, 393 A.2d 13, 16 (1978); Commonwealth v. Rowe, 459 Pa. 163, 168, 327 A.2d 358, 361 (1974); Commonwealth v. Boykin, 276 Pa.Super. 56, 62, 419 A.2d 92, 95 (1980). See: Commonwealth v. Keith Smith, sufra 317 Pa.Super. at 126, 463 A.2d at 1117. Moreover, the time devoted to transporting appellant to the Police Administration Building after his arrest at home must be excluded from the relevant period. See: Commonwealth v. Hitson, 482 Pa. 404, 407, 393 A.2d 1169, 1171 (1978) (plurality opinion); Commonwealth v. Riley, 284 Pa.Super. 280, 288-289, 425 A.2d 813, 817 (1981); Commonwealth v. Terebieniec, 268 Pa.Super. 511, 520, 408 A.2d 1120, 1124 (1979).

Only two and one-quarter hours had elapsed between appellant’s arrest and his initial confession. Excluding the forty minutes devoted to transporting appellant to the Administration Building, the delay was approximately one and one-half hours. Under Futch and its progeny, this delay did not require the suppression of the ensuing confession. Although the reasons for this delay do not appear and, therefore, suggest that it was “unnecessary,” it seems clear that appellant’s first incriminating statement was not related to this delay, for appellant had been left alone to rest and was not interrogated during most of this period. See: Commonwealth v. Williams, 476 Pa. 344, 348, 382 A.2d 1202, 1204 (1978) (delay unrelated to confession where defendant interrogated for two hours and fifty-five minutes in four separate interviews out of a four and one-half hour period); Commonwealth v. Young, 460 Pa. 598, 600-601, 334 A.2d 252, 253 (1975) (delay unrelated to confession where defendant interrogated for one hour and twenty-five minutes during five hour period and otherwise left to rest, eat, or be processed); Commonwealth v. Hill, 267 Pa.Super. 264, 268, 406 A.2d 796, 798 (1979) (delay unrelated to confession where only half of four hour period of delay devoted to questioning). See also: Commonwealth v. Starks, 484 Pa. 399, 406-407, 399 A.2d 353, 356 (1979); Commonwealth v. Rowe, supra 459 Pa. at 169, 327 A.2d at 361.

The fact that the formal written statement in which appellant admitted to pulling the trigger of the murder weapon was not signed until 5:20 p.m., does not require a different result. The additional delay, explained in part by Pritchett’s resting, eating a meal and conferring with his father, the need to resolve the conflict between appellant’s statement and that of a co-defendant, and the use of the polygraph, was not prejudicial. Appellant had been fully inculpated by his earlier statement in which he admitted being a knowing accomplice to a willful, premeditated killing, and the delay thereafter did not increase the degree of his guilt. See: Commonwealth v. James Smith, 480 Pa. 524, 391 A.2d 1009 (1978); Commonwealth v. Bridges, 475 Pa. 535, 381 A.2d 125 (1977); Commonwealth v. Leach, 455 Pa. 448, 317 A.2d 293 (1974); Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973). See also and compare: Commonwealth v. Van Cliff, supra (subsequent written confession obtained five and one-half hours after arrest not prejudicial when it merely reiterated earlier oral confession unrelated to delay); Commonwealth v. Carter, supra (second statement following polygraph examination, pointing out inaccuracies in statement given five hours previously was properly admitted based upon only brief delay between arrest and first inculpatory statement); Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975) (although investigation took twenty hours, incriminating statement given two and one-half hours after arrest, and later statements not additionally incriminating); Commonwealth v. Hill, supra (written statement, given fourteen or fifteen hours after arrest, merely elaborated upon earlier statement given approximately four hours and five minutes after arrest).

We conclude, therefore, that appellant’s inculpatory statements were not subject to suppression on grounds of unnecessary pre-arraignment delay and that a contrary argument would have been lacking in merit. It follows that trial counsel was not ineffective for failing to preserve the issue for review on direct appeal. See: Commonwealth v. Keith Smith, supra.

In Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976), the Supreme Court established a per se rule that an accused under 18 years of age may not effectively waive his or her rights against self-incrimination without first being given an opportunity to consult with an attorney or with an interested adult. See also: Commonwealth v. Hernandez, 498 Pa. 405, 409, 446 A.2d 1268, 1270 (1982); Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980) (opinion in support of affirmance); Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978); Commonwealth v. Carr, 320 Pa.Super. 1, 7, 466 A.2d 1030, 1033 (1983); Commonwealth v. Green, 315 Pa.Super. 564, 462 A.2d 736 (1983); Commonwealth v. Paz, 313 Pa.Super. 250, 459 A.2d 834 (1983); Commonwealth v. Rochester, 305 Pa.Super. 364, 451 A.2d 690 (1982).

Pritchett’s trial had been completed prior to the decision in McCutchen. However, his appeal had not been argued when McCutchen was decided. He now contends that because he was 17 years, 8 months and 25 days old at the time of his arrest, prior counsel was ineffective for failing to raise a McCutchen issue on appeal.

It is well settled that counsel will not be deemed ineffective for failing to raise meritless claims on appeal. See: Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980); Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438 (1980); Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980); Commonwealth v. Donald Jones, 301 Pa.Super. 364, 447 A.2d 1009 (1982); Commonwealth v. Hook, 300 Pa.Super. 181, 446 A.2d 290 (1982); Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 422 A.2d 1126 (1980); Commonwealth v. Morgan, 273 Pa.Super. 124, 416 A.2d 1121 (1979); Commonwealth v. Fox, 272 Pa.Super. 8, 414 A.2d 642 (1979). Here the claim was meritless because it had not been preserved by objection during or prior to trial. Thus, if counsel had attempted to raise a McCutchen issue on appeal, it would have been rejected because the issue had not been preserved for appellate review.

When appellant was arrested on October 23, 1973, there was no provision in Pennsylvania law requiring that a waiver of Miranda rights by a juvenile be preceded by an opportunity to consult with an informed, interested adult. Pritchett’s pre-trial motion to suppress was filed on January 29, argued on February 28 and denied on May 28, 1974. Trial commenced on July 8, 1974 and concluded on July 12. Post verdict motions were filed on July 19, 1974, argued on October 22, and decided on December 20. Because Pritch-ett’s direct appeal was pending at the time McCutchen was decided, he could theoretically have taken advantage of the per se rule and argued a violation thereof before the Supreme Court. See: Commonwealth v. Hernandez, supra, 498 Pa. at 410, 446 A.2d at 1270-1271; Commonwealth v. Barnes, supra, 482 Pa. at 557 n. 2, 394 A.2d at 462 n. 2; Commonwealth v. Chaney, 465 Pa. 407, 409, 350 A.2d 829, 830 (1976); Commonwealth v. Carr, supra, 320 Pa.Super. at 8, 466 A.2d at 1034. In order to argue the issue on appeal, however, it was necessary that it first have been preserved for appellate review by having been raised in the trial court. Here, a McCutchen issue had not been preserved. In Commonwealth v. Hernandez, supra, a similar problem was addressed by the Supreme Court as follows:

The heart of the McCutchen rule is the concern that the immaturity of a minor defendant requires its added protection. See Commonwealth v. Barry Smith, 472 Pa. 492, 372 A.2d 797 (1977). Since the post-trial motions occurred before the definitive articulation of the McCutchen concept, some latitude must necessarily be allowed in a determination as to whether or not the issue was in fact raised. Nevertheless, the preservation of the question must depend on it being established that the gravamen of the concern was presented as a basis for relief. In this instance it is clear that the attack upon the confession did not touch upon those considerations which led to the formulation of the McCutchen doctrine.
Moreover, the Barnes and Chaney decisions providing for the retroactive application of McCutchen to then pending cases can in no way be construed as allowing new issues to be introduced which were not then under consideration in those proceedings. The retroactive application of McCutchen represented the implicit acceptance of the view that fairness dictated the applicability of the newly announced principle to all similarly situated litigants. Commonwealth v. Hill, 492 Pa. 100, 111, 422 A.2d 491, 497 (1980) (Opinion in Support of Reversal, Roberts, J.); Commonwealth v. Cain, 471 Pa. 140, 167, 369 A.2d 1234, 1248 (1977) (Opinion in Support of Affirmance, Pomeroy, J.). In such an instance it is fair to conclude that all of those litigants were in the same situation and the outcome of their lawsuit should not depend on a race to the courthouse. However, a different situation obtains where one has seen fit to raise the objection and another has not. We therefore conclude that appellant has failed to preserve the McCutchen claim for our review, (emphasis added).

Id. 498 Pa. at 411, 446 A.2d at 1271. Because a McCutchen issue, if raised on direct appeal, would not have been considered, prior appellate counsel cannot be deemed ineffective for failing to inject the issue at that time. He cannot be held ineffective for failing to do a useless act.

So also, counsel cannot be deemed ineffective for failing to raise a McCutchen issue at trial. He will not be deemed ineffective for failing to predict future developments in the law. Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977); Commonwealth v. McCloud, 312 Pa.Super. 29, 42, 458 A.2d 219, 225 (1983); Commonwealth v. Warren, 307 Pa.Super. 221, 224, 453 A.2d 5, 7 (1982); Commonwealth v. Brinton, 303 Pa.Super. 14, 21, 449 A.2d 54, 58 (1982). Pritchett’s trial preceded the McCutchen decision by more than a year. Although the legal profession had been given some warning that a per se rule requiring the presence of an interested adult was being considered by the Supreme Court in its decisions in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) and Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975), these decisions came too late to alert Pritchett’s trial counsel. Pritchett’s trial had been concluded on July 12, 1974; and post-verdict motions were due within ten days thereafter. They were filed timely on July 19 and argued on October 22, 1974.

At trial, counsel made an oral request for an instruction that the jury could find Pritchett guilty of involuntary manslaughter. This the trial court refused. Appellant contended at the P.C.H.A. hearing that counsel’s failure to argue on direct appeal that the trial court’s ruling was erroneous constituted ineffective assistance of counsel.

Under current law, an accused is entitled to a jury instruction on involuntary manslaughter upon request if the same has been made an issue in the case, and if the facts will support such a finding. Commonwealth v. D’Ambro, 500 Pa. 303, 307, 456 A.2d 140, 143 (1983), quoting Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980); Commonwealth v. Keaton, 494 Pa. 566, 568, 431 A.2d 999, 1000 (1981); Commonwealth v. Morris, 492 Pa. 565, 567, 424 A.2d 1336, 1337 (1981); Commonwealth v. White, 490 Pa. 179, 185, 415 A.2d 399, 402 (1980). This rule originated with a triumvirate of 1977 plurality decisions by the Supreme Court which interpreted the “new” Crimes Code, effective June 6, 1973, to require that a jury instruction on involuntary manslaughter be given even where there had been no separate indictment for that crime. See: Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977) (Opinion of Pomeroy, J., joined by Jones, C.J., announcing the decision of the Court); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (Opinion of Roberts, J., joined by O’Brien, J. and Manderino, J., announcing the decision of the Court); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (Opinion of Pomeroy, J., joined by Eagen, J., announcing the decision of the Court). Accord: Commonwealth v. Hinson, 485 Pa. 626, 403 A.2d 564 (1979) (Opinion of Roberts, J., joined by O’Brien, J. and Manderino, J. in support of affirmance); Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978) (Opinion of O’Brien, J., announcing the decision of the Court). Prior to these decisions, the law in Pennsylvania had been well settled that where a defendant in a murder case was not indicted for involuntary manslaughter, the jury could not properly convict on that charge and, therefore, jury instructions on involuntary manslaughter were unnecessary. See: Commonwealth v. Garcia, supra 474 Pa. at 455, 378 A.2d at 1203; Commonwealth v. Polimeni, supra 474 Pa. at 434-435, 378 A.2d at 1191 (collecting cases). Although Pritch-ett had been indicted separately for involuntary manslaughter when formal charges were lodged, that charge was officially withdrawn at arraignment and was not pursued thereafter. Under the law, as it was understood by bench and bar at the time of Pritchett’s trial, he could not have been convicted of involuntary manslaughter. Therefore, the court properly refused the requested instruction.

Although Pritchett was charged and convicted of murder under the Crimes Code, we decline to find that counsel was ineffective in 1974 for failing to predict the Supreme Court’s decisions in 1977. In Commonwealth v. Green, 487 Pa. 635, 410 A.2d 792 (1980), Green had been convicted of voluntary manslaughter upon indictments of murder and voluntary manslaughter in connection with a killing which had occurred on March 4, 1976, nearly two years after the conclusion of the Pritchett trial. Green contended in a P.C.H.A. petition that trial counsel had been ineffective in failing to request a jury instruction on involuntary manslaughter. The Supreme Court rejected Green’s contention because at the time of trial the Court had “not yet decided that a defendant charged with murder and voluntary manslaughter would be entitled to a charge on request on involuntary manslaughter.” Id., 487 Pa. at 637, 410 A.2d at 793.

The record supports the trial court’s determination that prior counsel was not constitutionally ineffective. The dismissal of appellant’s P.C.H.A. petition, therefore, was proper.

Order affirmed.

POPOVICH, J., concurred in the result.

      . The record in the instant proceedings suggests that appellant’s surname is more correctly "Pritchett.”

      . A polygraph examination is a necessary step in the investigative process, and delay related thereto is not unnecessary. See: Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982); Commonwealth v. Smith, 487 Pa. 626, 631, 410 A.2d 787, 790 (1980); Commonwealth v. Hitson, 482 Pa. 404, 407, 393 A.2d 1169, 1171 (1978); Commonwealth v. Blagman, 458 Pa. 431, 436, 326 A.2d 296, 299 (1974); Commonwealth v. Keith Smith, 317 Pa.Super. 118, 126, 463 A.2d 1113, 1117 (1983). In this case, two and one-quarter hours were consumed by preparation for and administration of the polygraph examination.

      . In Roane, the Court ruled that an accused's confession should have been suppressed where his mother wanted no statement taken without counsel, but the police nevertheless persuaded the accused to confess. In Starkes, the accused’s mother had been present to advise her son, but she was not informed of his constitutional rights before she advised him to give a statement.

      . In dismissing post-trial motions, the court en banc held that appellant had waived the involuntary manslaughter issue by failing to include it in written post-trial motions. However, counsel had submitted written motions on July 19, 1974, seven days after the verdict, which included an allegation that the court had erred in “refusing to grant further instructions as requested by defendant during oral exceptions to the charge.” The only additional instruction requested was for a charge on the lesser offense of involuntary manslaughter. Therefore, the issue was adequately raised in post-verdict motions. The Commonwealth’s argument to the contrary is without merit.

      . Previous law in Pennsylvania derived from the early holding in Commonwealth v. Gable, 7 Serg. & R. 423 (Pa.1821) that "involuntary manslaughter is never a permissible verdict on a murder indictment.” Commonwealth v. Garcia, supra 474 Pa. at 455-456, 378 A.2d at 1202. See, e.g., Commonwealth v. Jackson, 450 Pa. 417, 419 n. 2, 299 A.2d 209, 210 n. 2 (1973); Commonwealth v. Hoffman, 439 Pa. 348, 357, 266 A.2d 726, 731 (1970).