author: JOHNSON, Judge:

text:
      597 A.2d 638
    In the Interest of G.T. Appeal of G.T., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1990.
    Filed Sept. 12, 1991.

      Bradley Bridge, Philadelphia, for appellant.
    Susan Wilcox, Asst. Dist. Atty., Philadelphia, for the Com., participating party.
    Before CIRILLO, President Judge, and CAVANAUGH, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

This case was certified for argument and decision by the court en banc to consider whether the enactment of the Juvenile Act, 42 Pa.C.S. §§ 6301 et seq., eliminated the common law presumption, in juvenile proceedings, that children between the ages of seven and fourteen years lack the capacity to commit crimes.

Although counsel for G.T., the minor appellant, contends that a much narrower issue is presented on this appeal— i.e., whether the juvenile hearing court, by striking a previously entered stipulation and refusing to allow G.T. to call a witness, denied G.T. his right to present a defensé, to compulsory process, and to a statutory right to call witnesses — a proper determination of this question requires that we address the issue as previously stated. In so doing, we hold that the common law presumptions regarding a child’s capacity to commit a criminal act are irrelevant to a determination of delinquency. We further conclude that the Honorable Joseph P. McCabe properly refused to receive proffered evidence of the juvenile’s mental age, and we affirm the adjudication of delinquency and order of disposition.

On March 25, 1989, G.T., who was then thirteen years of age, was arrested for possessing two vials which contained cocaine. In a subsequent juvenile proceeding, after the Commonwealth had established G.T.’s physical possession of cocaine, the defense offered a stipulation of counsel that Dr. Pino, a court psychologist, had examined G.T. and was of the opinion that G.T. possessed the mental capacity of a nine and one-half year old child. The hearing was recessed at this point without a ruling on the offer. When the hearing was resumed several days later, counsel for G.T. again offered the stipulation regarding Dr. Pino’s opinion of mental age. At this time, counsel also requested that the court receive a copy of Dr. Pino’s report or, in the alternative, hear Dr. Pino’s testimony. The court refused to receive Dr. Pino’s opinion in any form. Thereafter, G.T. was adjudicated delinquent and was committed to the Sleighton School on May 9, 1989. This appeal followed.

In his opinion, Judge McCabe acknowledged that he had refused to consider evidence of G.T.’s alleged mental age. The court stated that the Juvenile Act, 42 Pa.C.S. § 6301, et seq., abolished the infancy defense, i.e., the common law presumption that children between the ages of seven and fourteen years lack the capacity to commit crimes, for the purposes of juvenile proceedings. Opinion, McCabe, J., July 5, 1989, at 3, 4. The court concluded from the statutory definition of “delinquent child” that children ten years of age or older are conclusively presumed to be responsible for their acts of delinquency. Id.

On appeal, G.T. contends that, by refusing to accept the proffered evidence, the trial court committed reversible error, and states his issue as follows:

Did not the trial court err by denying the appellant his state and federal constitutional rights to present a defense, to compulsory process and to due process of law, and his right under Section 6338 of the Juvenile Act “to introduce evidence” at his adjudicatory hearing, when it refused to allow appellant to present evidence of a court psychologist that appellant, age thirteen, possessed the mental capacity of a child age nine and a half and, therefore, lacked the capacity to form the mens rea required to commit the offense for which he was charged?

Brief for Appellant on Reargument at 2.

G.T.’s assertion of error is premised upon the belief that mental age is relevant to a determination of capacity to commit a crime, and that such a determination of capacity is relevant in a juvenile delinquency proceeding. Because we conclude that capacity is not relevant to a determination of delinquency, we find no error in Judge McCabe’s refusal to admit the evidence offered to establish a lack thereof.

The Juvenile Act defines a child as an individual less than eighteen years of age, and a “delinquent child” as a “child ten years of age or older whom the court has found to have committed a delinquent act and is in need of treatment, supervision or rehabilitation.” 42 Pa.C.S. § 6302. That section further states, in pertinent part, that a “delinquent act” is “an act designated a crime under the law of this Commonwealth....” Id. We must therefore look to the Pennsylvania Crimes Code for substantive definitions of those acts which are designated as crimes, but which constitute acts of juvenile delinquency when committed by children from ages ten to eighteen.

We have stated that, except where the legislature has clearly defined a crime so as to make proof of criminal intent or guilty knowledge unnecessary, criminal intent or guilty knowledge is an essential element of any offense. Commonwealth v. Hogan, 321 Pa.Super. 309, 468 A.2d 493 (1983) (en banc) (citing Commonwealth v. Koczwara, 397 Pa. 575, 582, 155 A.2d 825, 828 (1959) cert. denied. 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (I960)); Commonwealth v. Grant, 235 Pa.Super. 357, 364-65, 341 A.2d 511, 515 (1975). Further, the Commonwealth has the unshifting burden of proof of each element of a criminal offense. Commonwealth v. Owens, 444 Pa. 521, 281 A.2d 861 (1971). During the adjudicatory stages of a delinquency proceeding, the juvenile is entitled to the same standards of proof as to all elements of an offense as in a criminal proceeding. In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368, 377-78 (1970); In Re Terry, 438 Pa. 339, 265 A.2d 350, aff'd sub nom. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

It follows that, where mens rea would be an element of an offense in a criminal setting, the Commonwealth is not relieved of its burden of proof merely by virtue of proceeding in a juvenile court.

Contending that capacity is relevant to a determination of whether a delinquent act has been committed, G.T. argues that a necessary element of mens rea would otherwise be impermissibly omitted. In so arguing, appellant appears to have commingled the entirely distinct concepts of mens rea and capacity, and it is at this point in the analysis that we differ from the propositions he posits.

The common law erected presumptions regarding a child’s age and capacity to appreciate the wrongfulness of his acts. A child between the ages of seven and fourteen was rebuttably presumed to lack such capacity, although the strength of the presumption grew weaker as the child aged. Parker v. Washington Electric Street Railway Company, 207 Pa. 438, 56 A. 1001 (1904). Counsel for G.T. argues that evidence relevant to G.T.’s alleged mental age of nine and one-half years, although G.T. is age thirteen, is relevant to demonstrate that G.T. would less likely command a capacity for such understanding. He contends that Judge McCabe erred by refusing to admit this evidence.

As opposed to capacity, however, the term mens rea refers to a mental state, often an element of an offense, which expresses the intentionality necessary for an act to constitute a crime. See, Commonwealth v. Zettlemoyer, 500 Pa. 16, 27, 454 A.2d 937, 943 (1982). Capacity, in terms of the infancy defense, refers, not to the ability to formulate mens rea, as argued by appellant, but to the ability to appreciate the criminality and wrongfulness of one’s acts. See F. McCarthy, The Role of the Concept of Responsibility in Juvenile Delinquency Proceedings, 10 University of Michigan Journal of Law Reform 181, 183-185 (1977). It is this capacity, and not the ability to formulate the necessary intention, that is the subject of the common law presumptions regarding children. These separate concepts were distinguished by the Supreme Court of Connecticut in In re Tyvonne, 211 Conn. 151, 558 A.2d 661 (1989), when it said:

The common law defense of infancy, like the defense of insanity, differs from the criminal law’s requirement of “mens rea ” or criminal intent. The law recognized that while a child may have actually intended to perform a criminal act, children in general could not reasonably be presumed capable of differentiating right from wrong. The presumptions of incapacity were created to avoid punishing those who, because of age, could not appreciate the moral dimensions of their behavior, and for whom the threat of punishment would not act as a deterrent.

Id. at 156, 558 A.2d at 664 (citations omitted). The Supreme Court of the State of Washington also recognized the distinction between these concepts in State v. Q.D., 102 Wash.2d 19, 685 P.2d 557 (1984), when it said:

While capacity is similar to the mental element of a specific crime or offense, it is not an element of the offense, but is rather a general determination that the individual understood the act and its wrongfulness — Were capacity an element of the crime, proof beyond a reasonable doubt would be required. But capacity, not being an element of the crime, does not require as stringent a standard of proof.

Id. at 24, 685 P.2d at 561 (citations omitted). In adjudicating G.T. delinquent, Judge McCabe concluded that the common law concept of capacity is irrelevant to a determination of whether a juvenile’s conduct amounts to an act of delinquency. For the reasons which follow, we agree.

As explained by the commentators on the subject, the common law presumptions were established long before the creation of juvenile courts in recognition of the fact that children should generally not be held criminally responsible for their acts. See F. McCarthy, The Role of the Concept of Responsibility in Juvenile Delinquency Proceedings, 10 University of Michigan Journal of Law Reform 181, 183-185 (1977). Within the juvenile justice system, however, there is no need for such presumptions, as the primary purpose of the juvenile system is not to punish children for their crimes but to “ascertain whether problems existed and if so, whether they could be rectified....” F. McCarthy, Juvenile Delinquency Practice and Procedure §§ 2-4, at 19 (1984). See also, 42 Pa.C.S. § 6301(b)(1)-(2), which provides that the purpose of the Juvenile Act is to:

(1) ... provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter[; and]
(2) ... to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation.

Confronted with whether capacity is relevant in juvenile delinquency proceedings, the Supreme Court of Connecticut stated:

With the enactment of juvenile justice legislation nationwide, several courts have addressed the issue whether the infancy defense applies to delinquency proceedings. Most have held that, in the absence of legislation codifying or adopting the defense, incapacity is not a defense in delinquency proceedings. These courts observe that because a delinquency adjudication is not a criminal conviction, it is unnecessary to determine whether the juvenile understood the moral implications of his or her behavior. In addition, some decisions recognize that the defense would frustrate the remedial purposes of juvenile justice legislation.

In re Tyvonne, 211 Conn. at 161, 558 A.2d at 666 (citations omitted). We agree. The purpose of determining delinquency under the Juvenile Act is to identify those children who have committed an act which would be a crime if it had been committed as an adult and who are, therefore, in need of special treatment, supervision and rehabilitation. Delinquency proceedings are not criminal in nature but are intended to address the special problems of children who have engaged in aberrant behavior disclosing a need for special treatment. Therefore, the defense of infancy, ereated to protect children from retribution in recognition of their inability to differentiate right from wrong, is irrelevant to a determination regarding a juvenile’s amenability to treatment, rehabilitation and supervision. Indeed, the Act provides that, in some instances where it is determined that rehabilitative goals cannot be met, the court may rule that the offense should be prosecuted, and transfer the matter to criminal proceedings. See 42 Pa.C.S. § 6355(a)(4)(iii)(A).

To permit the infancy defense in proceedings under the Juvenile Act would operate to remove some juveniles from both the adult and the juvenile systems, and prevent the child from receiving the care and rehabilitation that our Legislature has deemed appropriate. We are not inclined to interpret and apply the Juvenile Act in such a way as to frustrate what we perceive to be its purpose.

We believe that the Commonwealth correctly asserts that the Legislature, by defining a “delinquent child” to be “[a] child ten years of age or older whom the court has found to have committed a delinquent act....,” 42 Pa.C.S. § 6302 (emphasis added), has established conclusively that children aged ten years and older have the capacity to commit delinquent acts thereby abrogating any common law considerations to the contrary. A similar view was expressed by the Honorable Peter Paul Olszewski in In the Interest of EJ., 397 Pa.Super. 120, 125-126, 579 A.2d 960, 963 (1990) (en banc), where, in a concurring opinion, he stated:

Statutes are not presumed to change the common law unless expressly declared in their provisions, Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976); however, where the Legislature expressly provides a comprehensive definitional scheme, these provisions supercede [sic] the prior common law principles. Under the Juvenile Act of 1976 (as amended in 1977), the Legislature has expressly included specific ages and categories that replace the common law presumption concerning the capacity of a child to commit a criminal act. 42 Pa.C.S.A. §§ 6301-6302. The plain language of § 6302 provides that a “delinquent child” is “[a] child ten years of age or older whom the court has found to commit a delinquent act ...,” and a “dependent child” is “[a] child who ... is under the age of ten years and has committed a delinquent act.” 42 Pa.C.S.A. 6302.
Moreover, the common law presumptions are inapplicable to juvenile proceedings which were created in order to protect children from the harsh punishments of the adult criminal system. See Commonwealth v. Durham, supra [255 Pa.Super. 539, 389 A.2d 108 (1978)] (Price, J., dissenting). In my view, the Juvenile Act accomplishes the goal of removing the consequences of criminal behavior from those children who have committed delinquent acts and instead substitutes a program of supervision, care and rehabilitation. See 42 Pa.C.S.A. § 6301(b)(2).

Id. (Olszewski, J., concurring) (footnote omitted).

Furthermore, while we recognize that repeals of the common law by implication are disfavored, we are not of the opinion that our decision today encroaches upon the common law defense. The infancy defense arises in a criminal proceeding and, as we have stated, a delinquency proceeding is not criminal in nature.

Accordingly, we hold that any operation which the common law presumptions of capacity would otherwise have in adjudications of delinquency have been supplanted by our legislature’s comprehensive definitional scheme encompassed within the Juvenile Act.

Finally, the introduction of psychiatric testimony was also inadmissible to show a lack of specific intent. In this Commonwealth, “psychiatric testimony is admissible only to negate the specific intent required to establish first degree murder.” Commonwealth v. Garcia, 505 Pa. 304, 311, 479 A.2d 473, 477 (1984). See Commonwealth v. Swartz, 335 Pa.Super. 457, 484 A.2d 793 (1984) (psychiatric testimony cannot be considered to aid a jury in determining whether the defendant formed the necessary intent to commit robbery). See also, Commonwealth v. Terry, 513 Pa. 381, 393-394, 521 A.2d 398, 404 (1987), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976).

In conclusion, we hold that the infancy defense, created to protect children from being punished as criminals, is irrelevant in determinations of delinquency in our juvenile justice system. To the extent that Commonwealth v. Durham, 255 Pa.Super. 539, 389 A.2d 108 (1978) (en banc), a case which permitted the infancy defense in a proceeding under the former Juvenile Act, may be relied upon for a contrary result, it is expressly overruled by our decision today.

For the foregoing reasons, we affirm the adjudication of delinquency and order of disposition.

Order affirmed.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    597 A.2d 643
    Deborah O’CONNELL n/k/a, Deborah Hecker v. Daniel H. O’CONNELL, Appellant
    Superior Court of Pennsylvania.
    Argued July 31, 1991.
    Filed Sept. 24, 1991.

      James C. Sommar, Lansdale, for appellant.
    Joel Cardis, Lansdale, for appellee.
    Before MONTEMURO, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

Daniel H. O’Connell appeals from the August 2, 1990 Order directing him to continue paying child support for his minor son, Sean, and to contribute toward the college expenses of his daughter, Sarah.

The appellant and the appellee, Deborah O’Connell n/k/a Hecker, were married in May, 1969, and divorced in April, 1987. Two children were born of the marriage, Sarah, born February 21, 1972, and Sean, born January 15, 1976. Pursuant to an Order of support dated May 22, 1987, appellant was directed to pay $85 per week per child. On March 27, 1990, appellee filed a petition to increase support citing as reasons Sarah’s imminent entrance into college and the general increased expenses incurred in raising two teenage children. Appellant responded by filing a petition to decrease child support in light of the fact Sarah had reached age 18. A hearing was held and the Master recommended the appellant pay $160 per week support for Sean and 70 per cent of Sarah’s tuition, room and board, fees and direct college expenses. The Master’s recommendation was approved by Order of court dated July 6, 1990, and appellant’s exceptions were denied. After a hearing de novo, an Order was entered August 2, 1990, which stated, inter alia: 1) appellant’s defense of estrangement was inapplicable; 2) Sarah was entitled to support for college; 3) appellee was to receive $160 per week child support for Sean; and 4) wife was awarded $7,500 attorneys’ fees as reimbursement for appellant’s spurious suits opposing support and alleging fraudulent concealment of earnings/assets.

Appellant argues the trial court abused its discretion with regard to four issues: 1) failing to consider estrangement as a factor in awarding support for college expenses; 2) imposing an obligation for the payment of 70 per cent of Sarah’s college expenses; 3) failing to properly apply the Pennsylvania Support Guidelines and those set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); and 4) awarding attorneys’ fees.

The scope of appellate review in child support cases is very narrow and a trial court’s findings will be disturbed only where the judge has clearly abused his discretion. Fager v. Fatta, 395 Pa.Super. 152, 576 A.2d 1089 (1990). A finding of such abuse is not made lightly and rests upon a showing of clear and convincing evidence. Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986).

Appellant argues his daughter willfully estranged herself from him and is not, therefore, entitled to his monetary support while in college. We disagree. It has long been the position of this Commonwealth that parents have a duty to support a child pursuing post-secondary education if the child has the desire and ability and such support is not an undue hardship. See Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963). Recently, however, this Court has found such a duty does not exist if the child willfully estranges himself from his parents. Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989) (en banc), alloc. denied, 524 Pa. 598, 568 A.2d 1248 (1989).

Estrangement between a parent and child will only relieve or lessen a parent’s duty to pay support towards a child’s college education when that parent has made a concerted and good faith effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent’s out> stretched hand.

Bedford v. Bedford, 386 Pa.Super. 349, 357, 563 A.2d 102, 106 (1989).

When her parents separated, Sarah was not quite fifteen years of age. The record indicates that at this very painful and confusing time in Sarah’s life she was unable to accept the fact her father was in love with another woman and, therefore, reacted in a manner not unusual for a child of fourteen. Unfortunately for Sarah, appellant’s actions were then and continue to be equally immature. The record is replete with evidence demonstrating appellant’s lack of compassion and total disdain for Sarah and her brother to whom he refers as “disinherited mistakes” and “the defendant’s children.” Appellant’s degradation of Sarah, characterizing her demonstrated artistic talent as “Sarah’s mediocre ability to draw,” and describing her personality as “listless and drug-laden,” is not indicative of a parent’s concerted and good faith effort to develop a relationship with one’s daughter. See Bedford, supra. To the contrary, we find appellant’s adolescent behavior reprehensible. The defense of estrangement is not available to the appellant and his appeal related thereto is without merit.

Next, appellant argues considering the amount of Sarah’s projected college expenses and his income, the imposition of an obligation to pay 70 per cent of the expenses constitutes an unreasonable pro rata sharing of the costs and places on him an undue hardship. Appellant also contends the court erred by failing to consider Sarah’s income from her summer job.

The amount of a support Order is largely within the discretion of the trial court whose judgment should not be disturbed absent an abuse of discretion. Melzer, supra; Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989), alloc. denied, 524 Pa. 621, 571 A.2d 383 (1989). The determination of the parties’ respective net incomes is governed by Pa.R.C.P. 1910.16-5(b) unless their combined net income exceeds $8,000 at which point the support shall be determined by case law. See Pa.R.C.P. 1910.16-5(d).

Appellant’s attempt to reduce his monthly net income and his respective obligation to Sarah is evidenced by his creative tax return. In 1989, appellant’s reported income was $81,971. Federal income tax was withheld total-ling $20,098, $17,478 of which was returned to appellant by refund (net deduction of $2,620). Appellant’s attempt to give this refund to his wife and eliminate it from the court’s consideration is a sham. Also shown as a deduction was a $12,950 charitable contribution. As appellee stated, appellant should be reminded “charity begins at home.” (Appellee’s brief at p. 16.) Finally, in addition to his full-time employment as general counsel for Spring House Corporation, appellant is also general counsel for the nonprofit organization, Lamb Foundation, established by his second wife, Mengel. Appellant purchased the property where Lamb Foundation is located and transferred it to Mengel yet continues to enjoy personal tax deductions and other amenities related to the Foundation. When convenient, appellant claims as his own the expenses incurred for his present home and the Lamb Foundation, while in the next breath argues the expenses incurred by his second wife and her three children and one step-child are borne solely by Mengel. (N.T., 7/30/90, p. 54; Plaintiff’s Exhibit No. 1.) The court correctly calculated appellant’s net income to be $1,560 per week or $6,760 a month and the appellee’s net income to be $651.96 per week or $2,825.16 a month for combined total of $9,585.16.

Sarah was fortunate to matriculate to Carnegie Mellon, a prestigious college known for its excellence in the fields of science and fine arts. In light of the mathematical certainty appellant’s net monthly income represents 70.5 per cent of the parties’ total net monthly income, and the fact the court did consider Sarah’s obligation to contribute to her own support via loans, grants, scholarships and work study programs, we find it was not an abuse of discretion for the court to find appellant responsible for 70 per cent of the college expenses incurred while Sarah attends Carnegie Mellon.

Appellant argues the $160 per week child support award for Sean was improper because the trial court, in arriving at this amount, failed to follow either the Pennsylvania child support guidelines or the Melzer formula. Our standard of review on this issue remains abuse of discretion. See Melzer and Griffin, supra.

While conceding the support guidelines are inapplicable here because the parties’ net income exceeds $8,000, appellant argues the trial court could have extrapolated and applied to this situation the formula provided in the guidelines for parties whose income is less than $8,000. Appellant’s argument based on what the trial court could have done cannot sustain an abuse of discretion standard and will not be speculated upon by this Court.

Appellant’s arguments, the court failed to make findings with respect to Sean’s needs in accord with the Melzer formula and the Order directing appellant to pay $160 weekly places on him an undue hardship, were not issues preserved for appeal and will not be addressed by this Court. See Hreha v. Benscoter, 381 Pa.Super. 556, 554 A.2d 525 (1989), alloc. denied, 524 Pa. 608, 569 A.2d 1367 (1989) (only issues specifically raised in post-verdict motions will be preserved for appeal and can be considered, and those issues raised for the first time in appellate briefs in support of those issues may not be considered). Accordingly, appellant’s arguments attacking the Order directing him to pay $160 per week for Sean are without merit.

Lastly, appellant argues the award of attorneys’ fees to the appellee was improper and unsupported by the evidence. Specifically, appellant avers attorneys’ fees are not authorized by law in child support cases and in support thereof cites Dena Lynn F. v. Harvey H.F., 278 Pa.Super. 95, 419 A.2d 1374 (1980). While we find appellant’s reliance is not fully justified, the holding in Dena Lynn F. being limited to the peculiar facts of that case, we reverse that portion of the trial court’s Order awarding counsel fees.

It is well settled this Court will not reverse the trial court on its decision to award counsel fees absent an abuse of discretion. Wayda v. Wayda, 395 Pa.Super. 94, 576 A.2d 1060 (1990). Although there is no specific statutory authorization for the imposition of attorneys’ fees in support cases, neither is there specific statutory prohibition of such awards when sanctions in the nature of counsel fees may be imposed for inappropriate behavior. Reasonable attorneys’ fees are provided by statute to:

(6) Any participant who is awarded counsel fees as a sanction against another participant for violation of any general rule which expressly prescribes the award of counsel fees as a sanction for dilatory, obdurate or vexatious conduct during the pendency of any matter.
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.

42 Pa.C.S. § 2503.

Unlike the facts in Dena Lynn F., the award of attorneys’ fees in this matter is not alleged to be the result of costs generally incurred in bringing a lawsuit for support. Rather the $7,500 award was imposed because throughout this spurious litigation appellant assumed a posture with “... very little legal substance and no legitimate proof in pursuing actions that the Court views as vexatious and recrimatory.” (Finding of Fact No. 9, 8-2-90). The court found appellant, as an attorney acting pro se, consistently exhibited his “litigiousness, vexatiousness and willingness to cause expenses to his former wife when she is seeking for her children only what is their logical entitlement.” Id.

Although at several times during these proceedings the court voiced its disdain for the manner in which appellant has treated his ex-wife and his children, and bearing in mind we are not contesting the court’s authority to impose attorneys’ fees, we must reverse this portion of the August 2, 1990 Order as, despite the court’s obvious anger toward appellant and some of his actions, the record does not support the stringent requirement that appellant’s behavior was dilatory, obdurate or vexatious during the pendency of this matter or that the action was arbitrary or in bad faith. Such findings are necessary to sustain the court’s award of counsel fees. Admittedly, appellant was antagonistic and pursued a vigorous defense to continuing support payments, but in the context of a bitterly contested support matter, we cannot conclude his behavior was such as to permit an award of counsel fees. When there is an arguable basis or change of circumstance which the law will recognize as a ground for petitioning to modify an existing support Order, the trial court may not award counsel fees against the party pursuing that remedy. The facts that the court had to review the status of the parties to apportion the payment of college expenses and the issue of estrangement required judicial review to be resolved establishes the petition to modify was not totally without merit. The award of counsel fees under these circumstances would have a chilling effect on legitimate pursual of court action when the law requires free and open access to the courts.

Based on the foregoing facts and reasoning, we affirm the Order of August 2, 1990 in its entirety with the exception of the award for counsel fees which we vacate.

Order affirmed in part and vacated in part.

Jurisdiction relinquished.

      . In its Opinion (Slip Op., Salus, J., 11/25/90, p. Costs and fees, which provides:
      (b) Lack of good cause for failure to pay on time. — If the court determines that the person subject to a child support order did not have good cause for failing to make child support payments on time, it may further assess costs and reasonable attorney fees incurred by the party seeking to enforce the order.
      This section permits recovery of counsel fees only when there has been a willful failure to pay on an existing Order. This is not to be confused with 23 Pa.C.S. § 3702, Alimony pendente lite, counsel fees and expenses, which allows an award of counsel fees during the pendency of divorce and alimony proceedings.


author: JOHNSON, Judge: WIEAND, Judge,

text:
    597 A.2d 648
    IN re D.D. Appeal of D.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1990.
    Filed Sept. 24, 1991.

      Troy H. Wilson, Philadelphia, for appellant.
    Susan E. Willcox, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

The Honorable Abram Frank Reynolds adjudicated D.D. delinquent, placed the juvenile on probation and imposed a fine of $300 payable within one year. On this appeal from the order of disposition, D.D. contends that (a) the evidence was insufficient to demonstrate his participation in an attempted auto theft and conspiracy and (b) being thirteen years of age, he was entitled to a presumption that he lacked the capacity to form the necessary mens rea to commit the offenses for which he was charged.

We find the evidence to have been sufficient to support the adjudication of delinquency. We conclude that the issue regarding the presumption of incapacity was not properly raised and preserved in the trial court. Accordingly, we affirm the adjudication of delinquency and the disposition order.

First, we consider D.D.’s contention that insufficient evidence was presented to support a finding of delinquency. To support the adjudication of delinquency in the face of a claim of insufficiency, we must find that the evidence meets the standard of “beyond a reasonable doubt.” In Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In so doing, we must consider all the evidence presented, and all the inferences therefrom, upon which, if believed, the finder of fact could properly have based its verdict. DelSignore; Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902 (1991).

On July 21, 1989, at about 11:50 p.m., Philadelphia Police Officer William Repsch and his partner, both in plain clothes, observed D.D., then age thirteen years and nine months, and five other males sitting on a bench in the 2400 block of Pennsylvania Avenue in Philadelphia. The officers watched as the males walked to the 2600 block of Pennsylvania Avenue, peering into cars. Officer Repsch remained in his unmarked vehicle and watched the group through binoculars, while his partner watched on foot.

The males returned to the bench in the 2400 block of Pennsylvania Avenue. D.D. rose from the bench, wound up as if he were throwing a baseball, and threw a rock through the passenger side window of a car parked about ten feet away, shattering the window glass. D.D. returned to the bench where the group of males stayed for approximately two minutes. Two other members of the group then entered the car. The vehicle’s interior lights went on, and the car rocked back and forth as a result of the activity inside.

After Officer Repsch called by radio for backup, an unmarked police van pulled within six parking spaces of the bench where D.D. and three other males were waiting. The two males got out of the car that was under surveillance, and returned to the bench. Shortly thereafter, the six males began walking away. Police then moved in and arrested all of the males.

When the officers examined the car, they found the passenger window broken, and the steering wheel bent so that an anti-theft device was within one-quarter inch from being removed. The owner of the car reported that she did not know D.D. or any of his companions.

We find this evidence is sufficient to show beyond a reasonable doubt that D.D. had committed the crime of attempted theft. The Crimes Code states that:

§ 901. Criminal attempt
(a) Definition of attempt. — A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

18 Pa.C.S. § 901(a). The elements of theft are: (1) unlawful taking or exercising unlawful control over (2) movable property of another (3) with the intent to deprive the owner thereof. 18 Pa.C.S. § 3921(a). We also find that the evidence was sufficient to show beyond a reasonable doubt that D.D. was guilty of criminal conspiracy. The Crimes Code defines criminal conspiracy:

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

18 Pa.C.S. § 903(a).

We reject as frivolous D.D.’s assertion that reasonable doubt exists because the owner of the car failed to testify that she had not given permission to D.D. or his companions to use the car. In fact, she testified that she did not even know them. Equally meritless is D.D.’s contention that, because there was no evidence that the steering wheel had been straight or the anti-theft device had been secure prior to the incident, there was no evidence that the males were attempting to steal the car.

Given that, as a group, the males broke the window of the car, entered the car, engaged in an activity which caused the car to rock back and forth, the wheel was bent and the anti-theft device loose, coupled with the testimony of the owner of the car that she did not know any of them, we find that sufficient evidence existed from which a finder of fact could conclude that the males were attempting to steal the car.

D.D. also contends that the evidence presented was insufficient because Officer Repsch’s testimony was not credible. Issues of credibility are properly left to the trier of fact for resolution. Commonwealth v. Fahy, 512 Pa. 298, 308, 516 A.2d 689, 694 (1986). The finder of fact is entitled to give credence to witnesses’ testimony, and we must defer to the court’s determination of the officer’s credibility and acceptance of his recollection of the events. The significant phrase in our standard of review is “all the evidence and all the reasonable inferences therefrom, upon which, if believed, the finder of fact could properly have based its verdict.” Issues of credibility are left to the trier of fact; there is no justification for an appellate court, relying on the cold record, to review determinations of credibility made in the trial court. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976).

Finally, D.D. contends that the evidence proves only that he “was ‘merely present’ at the scene of the incident when he threw the rock through the window.” The assertion negates itself. That D.D. broke the window of the car which his companions proceeded to enter in an attempt to steal it, in itself negates any inference of mere presence.

We turn, then, to D.D.’s only other contention, that he was entitled to a presumption that he lacked the capacity to form the necessary mens rea to commit the offenses for which he was charged. Commonwealth v. Durham, 255 Pa.Super. 539, 389 A.2d 108 (1978). As a threshold matter, we must address whether D.D. had presented and preserved, in the trial court, this issue of the infancy defense.

Judge Reynolds filed an Opinion pursuant to Pa.R.A.P. 1925 following his receipt of D.D.’s Concise Statement of Matters Complained of on Appeal. With respect to the preservation of any issue on the infancy defense, Judge Reynolds informs us:

The third allegation of error is that the court misstated the holding in the Durham case. Commonwealth v. Durham, [255 Pa.Super 539] 389 A.2d 108.
The issues in that case are nowhere mentioned in the notes of testimony for the reason that they were at no time raised at trial. In fact, the Durham case was mentioned by the court to the assistant district attorney after trial and after argument.
Since this third issue was not raised at trial, it is not appealable now (See: Rule of Appellate Procedure 302(a)).

Opinion, Reynolds, J., Petition No. 4805-89-07, November 28, 1989, page 4.

A month after Judge Reynolds filed his Rule 1925 Opinion, counsel for D.D. and for the Commonwealth attempted to add to the record by filing, in the Superior Court, a document styled “Stipulation of Counsel to Correct the Record”. Attached to that document were affidavits of counsel for the Commonwealth, counsel for D.D., and counsel for another juvenile involved in the same adjudicatory hearing, all purporting to set forth what had transpired during closing arguments on August 4, 1989.

Ten days later, the same counsel filed another document, again in the Superior Court, styled “Praceipe [sic] to Correct Record Pursuant to Stipulation of Counsel” to which were attached two other documents titled “Additional Stipulation of Counsel to Correct Record”.

Neither of these documents are properly before this court as part of this appeal.

First, the content of the certified record on appeal is controlled by Rule 1921 of our Rules of Appellate Procedure which provides:

Rule 1921. Composition of Record on Appeal
The original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases, [emphasis added],

Under this rule, during our consideration of an appeal, we must accept and review only those papers which have been properly filed and docketed in the trial court. For reasons which do not appear of record, counsel chose to by-pass the trial court and file their purported stipulations and “corrections” directly with this court, without any apparent attempt to contact the trial court in the matter. This is not in conformity with the Rule.

Second, the procedure for supplementing the existing record is equally explicit. Nowhere does counsel set forth its assumed authority for filing in the Superior Court, on December 29, 1989, the Stipulation of Counsel to Correct Record. As to the documents submitted with and attached to the so-called Praceipe to Correct Record Pursuant to Stipulation of Counsel filed on January 8, 1990, the “Additional Stipulation of Counsel to Correct Record” presents as its first averment:

1. This Stipulation of Counsel to Correct Record is filed pursuant to the authority granted in Pa.R.A.P. 1926. However, that Rule sets forth:
Rule 1926. Correction or Modification of the Record
If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court, [emphasis added].

While Rule 1926 permits parties to stipulate to facts omitted from the record by error or accident, the rule does not permit parties to stipulate, in the absence of a transcript, as to what would have been reported had the proceedings been transcribed. Rather, appellate proceedings in the absence of a transcript are governed by Rules 1923 and 1924, which read as follows:

RULE 1923. STATEMENT IN ABSENCE OF TRANSCRIPT
If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.
RULE 1924. AGREED STATEMENT OF RECORD
In lieu of the record on appeal as defined in Rule 1921 (composition of record on appeal), the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the lower court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the lower court may consider necessary fully to present the issues raised by the appeal, shall be approved by the lower court and shall then be certified to the appellate court as the record on appeal and transmitted thereto by the clerk of the lower court within the time prescribed by Rule 1931 (transmission of the record). Copies of the agreed statement and the order from which the appeal is taken may be filed as the reproduced record, [emphasis added, both Rules].

Under either rule, appellants are required to submit their statement to the trial court for that court’s approval. Neither rule purports to permit an appellant to submit to the Superior Court, in the first instance, affidavits of what transpired in the trial court in order to procure review. Such filings are not part of the record as defined by Rule 1921, for the record consists only of “[t]he original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court ... in all cases.” Furthermore, it does not appear to us that Judge Reynolds would have “approved” of this statement of the proceedings. As stated, he expressly denied in his opinion that any such argument had been made. Opinion of November 22, 1989, at 3.

This case presents a classic example of why each of the Rules here under review mandates the participation of, and highlight the responsibility of, the trial court. Rule 1923 requires that any statement “be submitted to the lower court for settlement and approval” and thereafter is included in the record “by the clerk of the lower court”. Where an agreed statement of the case is prepared and signed by the parties pursuant to Rule 1924, there again it must be “approved by the lower court” and thereafter certified and transmitted “by the clerk of the lower court”. It is equally clear under Rule 1926 that corrections or modifications of the record “shall be submitted to and settled by [the lower] court”.

As we may consider only the certified record on appeal, and the record fails to support D.D.’s contention that the issue of capacity was preserved, we hold the issue was waived.

We are mindful of the long-standing rule that trial court opinions are not part of the record. Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 330 Pa.Super. 420, 459, 479 A.2d 973, 993 (1984) rev’d. on other grds. 507 Pa. 204, 489 A.2d 1291 (1985); Commonwealth v. Darush, 501 Pa. 15, 23 n. 8, 459 A.2d 727, 732 n. 8 (1983); Independence Party Nomination, 208 Pa. 108, 57 A. 344 (1904). We review Judge Reynolds’ Rule 1925 Opinion not for the purpose of establishing that the infancy defense was not, in fact, raised but for the purpose of pointing up the apparent lack of unity between the trial court and the several trial counsel as to what exactly transpired after the record was closed.

We may consider only material duly certified to us by the trial court. Commonwealth v. Ingber, 516 Pa. 2, 8 n. 3, 531 A.2d 1101, 1104 n. 3 (1987); Graham v. Sky Haven Coal, Inc., 386 Pa.Super. 598, 612 n. 1, 563 A.2d 891, 898 n. 1 (1989) (Brosky, J. dissenting), alloc. granted 525 Pa. 600, 575 A.2d 566 (1990); General Accident Fire & Life Assurance Corp., Ltd. v. Flamini, 299 Pa.Super. 312, 317 n. 3, 445 A.2d 770, 773, n. 3 (1982). Where material in a supplemental record has not been included in the record as certified and transmitted by the trial court, it cannot be considered on review. Ritter v. Ritter, 359 Pa.Super. 12, 19, 518 A.2d 319, 323 (1986). For purposes of appellate review, what is not of record in the trial court does not exist. Frank v. Frank, 402 Pa.Super. 458, 461-65 n. 5, 587 A.2d 340, 342-43 n. 5 (1991).

It is the obligation of the appellant in the Superior Court to ensure that the record on review will be adequate to permit meaningful scrutiny. Hart v. W.H. Stewart, Inc., 523 Pa. 13, 18, 564 A.2d 1250, 1253 (1989) (Larsen, J., dissenting); Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). Both our Supreme Court and this court have recognized that mechanisms exist for reconstruction of a record where critical gaps appear. Id., See: Chapter 19 — Preparation and Transmission of Record and Related Matters. Pa.R.A.P., 42 Pa.C.S.

It is not entirely clear that the post-trial arguments by counsel, occurring after the record has been closed without objection, constitute either “evidence or proceedings at a hearing or trial” as contemplated by Rule 1923. Compare Commonwealth v. McLaughlin, 393 Pa.Super. 277, 282, 574 A.2d 610, 613 (1990) (informal in-chambers conference conducted just prior to sentencing hearing held outside the ambit of Rule 1923). Assuming that these arguments could have been reconstructed under the Rule, it is clear that they have not been submitted to the trial court for settlement and approval. It is also clear that the failure to secure Judge Reynolds’ settlement and approval operates to prohibit these documents from being included by the clerk of the trial court in the record on appeal. Rule 1923, supra.

Based upon our analysis of the procedures contemplated by the rules and the purposes sought to be advanced thereby, we must conclude that D.D. has failed to present and preserve the issue of the claimed lack of capacity to form mens rea for review by this court.

In his brief, D.D. contends that the trial court “may have inadvertently failed to remember that the appellant did in fact affirmatively raise the [infancy defense] issue, during the trial by entering into evidence a stipulation that the defendant is a thirteen year old juvenile with good character.”

Brief for Appellant, page 15. The certified record contains this portion of the proceedings, at the conclusion of the adjudicatory hearing, and following the close of the Commonwealth’s case:

MR. COARD [CO-DEFENDANT’S COUNSEL]: At this time, your Honor, we would demur to the PIC charge.
THE COURT: Sustained.
The demur to the PIC charge, the rock, is sustained.
MR. COARD: Thank you, Your Honor. We’d also demur, at this point to the conspiracy.
THE COURT: Denied.
MR. COARD: In addition, Your Honor, we’d argue that the demur [sic] should be granted in regard to the theft charge for several reasons.
THE COURT: The question involved in here is has the Commonwealth produced enough evidence to take this case to a judge; they have.
It’s denied.
MR. COARD: That concludes my demur [sic], Your Hon- or.
THE COURT: Mr. Wilson [D.D.’s counsel].
MR. WILSON: No argument at this point, Your Honor.
MR. WILSON: Your Honor, we also have a stipulation. I will call the Defendant’s mother. There’s two parts, Your Honor.
The first part is that we want on the record the Defendant’s age was 13 years of age; and secondly, that if called, the defendant’s mother would have testified to his good character.
MR. TAYLOR [ASST.D.A.]: So stipulated.
THE COURT: All right.
MR. WILSON: With that, Your Honor, defense would rest, at this particular point.
I would like to make argument.
THE COURT: Commonwealth?
MR. TAYLOR: Commonwealth rested already.
(Whereupon, closing arguments were held.)

Notes of Testimony, August 4, 1989, pages 16-19.

At no point prior to the close of the hearing did counsel for D.D. place at issue his claimed right to a presumption. Assuming that the capacity of D.D. to form the necessary mens rea was properly an issue in this case, it would not have to await the stipulation of defense counsel offered as part of the case for the juvenile. D.D.’s age was already before the hearing court through the petition alleging delinquency executed July 21, 1989 and a part of the record at the beginning of the hearing. In order to place the minor’s capacity at issue, a motion for a directed verdict should have been made at the close of the Commonwealth’s case. Commonwealth v. Durham, supra, 255 Pa.Super. at 540-41, 389 A.2d at 109; 42 Pa.C.S. § 6336. Counsel for D.D. has not referred us to any cases, nor has our research unearthed any, which would support the proposition that a defense of lack of capacity may be placed at issue merely by introducing, by stipulation, the age of a respondent as part of the case for the juvenile.

In an appropriate case, this court may revisit the so-called Durham rule for the purpose of reviewing whether the common law presumptions concerning the capacity of minors are applicable in delinquency proceedings under the Juvenile Act. Compare Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (recognition of common law presumptions regarding capacity in criminal prosecution); In the Interest of E.J., 397 Pa.Super. 120, 579 A.2d 960 (1990) (common law presumption not considered upon finding of double jeopardy). On this appeal, we are again constrained to forego that re-evaluation since the issue is not properly before us. The issue was not raised and properly preserved on the record in the juvenile court and is therefor waived. It cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).

The evidence was sufficient to support the finding of delinquency on both the attempted theft and conspiracy charges. We find the attempt to argue the common law presumption as to capacity to be without support in the record on this appeal. We affirm the adjudication of delinquency and the order of disposition. Jurisdiction is relinquished.

WIEAND, J. files a concurring statement in which DEL SOLE, J. joins.

WIEAND, Judge,

concurring:

I agree with the majority that the Commonwealth presented sufficient evidence to support a finding that appellant was delinquent based upon acts which constituted the crimes of attempted theft and criminal conspiracy. I also agree that the adjudication of delinquency must be affirmed. I would do so, however, because the Commonwealth did not have a duty to prove appellant’s capacity to commit the criminal offenses forming the basis for the adjudication of delinquency. See: In the Interest of G.T., 409 Pa.Super. 15, 597 A.2d 638 (1991).

DEL SOLE, J., joins.


author: FORD ELLIOTT, Judge: DEL SOLE, Judge,

text:
    597 A.2d 655
    Nancy A. GIGLIOTTI, also known as Nancy Moran, Appellant, v. Mel MACHUCA, Parent and Natural Guardian of Todd Machuca, a Minor.
    Superior Court of Pennsylvania.
    Argued April 17, 1991.
    Filed Sept. 25, 1991.

      Michael C. George, Pittsburgh, for appellant.
    Robert J. Marino, Pittsburgh, for appellee.
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Allegheny County, in favor of appellee, Todd Machuca. On December 15, 1989, a jury returned a general verdict in appellee’s favor. Appellant, Nancy Gigliotti, filed timely post-trial motions which were subsequently denied. This appeal followed. For the reasons which follow, we affirm the judgment.

The lawsuit giving rise to this appeal was the result of an automobile collision involving a car being driven by Todd Machuca and a car being driven by Ms. Moran’s then fiance, now husband, in which she was a passenger. The vehicle in which Ms. Moran was a passenger was stopped at a stop sign on an off-ramp from Route 19, when it was rear-ended by the Machuca vehicle. Todd Machuca admitted that he had turned his attention away from the road ahead of him, and that this caused him to rear-end the Moran vehicle. The parties are in agreement as to the facts up to that point. However, there is substantial disagreement between the parties as to the severity of the collision and the amount of injury suffered by Ms. Moran. Appellant had a preexisting neck and back condition as the result of an injury she sustained while working as a licensed practical nurse. The work-related injury occurred on September 2, 1985, when Ms. Moran was attempting to administer medication to a combative patient. The patient pulled on her uniform causing her to suffer a severe cervical strain. Ms. Moran was receiving treatment for this injury up until the present accident occurred, on December 19, 1986. At trial, the jury was presented with numerous expert witnesses who presented conflicting opinions as to the extent of appellant’s injuries attributable to the car accident as opposed to her previous work-related injury. The jury returned a general verdict in Todd Machuca’s favor.

Appellant has raised the following issues for our consideration.

I. Whether the trial court erred by failing to direct a verdict for Appellant and [sic] liability or, alternatively, failed to enter a judgment NOV in favor of Appellant on issue of liability and order new trial as to damages?
II. Whether the trial courts [sic] charge to the jury violated the collateral source rule and was otherwise prejudicial to Appellant, thus entity Appellant [sic]?

We shall address the issues in the order presented.

Appellant, in her first issue, maintains that the trial court erred by failing to direct a verdict in her favor on the issue of liability. Alternatively, appellant argues that the trial court should have granted her motion for judgment notwithstanding the verdict on the issue of liability and ordered a new trial on the issue of damages. The standard employed by this court when reviewing a denial of a motion for a directed verdict or motion for judgment n.o.v. is the same; this court will reverse the trial court only if it finds an abuse of discretion or an error of law which controlled the outcome of the case. Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). When reviewing the propriety of an order denying a motion for judgment n.o.v. the sole duty of this court is to determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be drawn from the evidence and rejecting all unfavorable testimony and inferences. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 546 A.2d 639 (1988), appeal denied, 522 Pa. 576, 559 A.2d 37 (1989).

In support of her contention that the trial court erred by denying her motions for a directed verdict and a judgment n.o.v., as to liability, appellant relies upon the arguments that Todd Machuca admitted driving negligently and that the expert testimony reveals that Ms. Moran suffered some injury as a result thereof. The record does support Ms. Moran’s argument that Todd Machuca was driving in a negligent manner. Todd, himself, testified that he had turned his attention away from the road ahead of him to talk to one of the passengers in his vehicle. In doing so, Todd Machuca failed to observe the Moran vehicle stopped at the stop sign and subsequently collided with the rear of the vehicle in which Ms. Moran was a passenger. However, negligent conduct alone is insufficient grounds for recovery. It is also necessary that plaintiff prove that the negligent conduct was a substantial factor in bringing about plaintiff’s injuries. Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985). To that end, the jury was presented with conflicting testimony from several medical experts as to what extent, if any, appellant’s injuries were caused by the accident in question. With the appropriate standard of review in mind, we shall review the expert medical testimony presented to the jury.

Appellant offered the testimony of five physicians who had, at some point in time, treated her. The first, Dr. Vates, began treating Ms. Moran prior to the automobile accident. Dr. Vates initially saw her in April 1986 regarding neck and back pain which resulted from the work-related incident. At that time, Ms. Moran had been off work since October 1985. Dr. Vates found that Ms. Moran suffered from tenderness of the vertical angle of the left scapula and limited motion of the neck. He prescribed a treatment of physical therapy and muscle relaxers. One month prior to the automobile accident, Dr. Vates recommended that Ms. Moran return to light-duty work. However, she continued to complain of pain and did not return to even light-duty work. After the automobile accident, Ms. Moran continued to treat with Dr. Vates. She was, at that time, diagnosed as suffering from cervical strain secondary to the automobile accident.

The second physician to testify during appellant’s case in chief was Dr. Thomas Ulincy. Dr. Ulincy, a neurologist, prescribed in-patient treatment in April and October of 1987, for cervical traction. Dr. Ulincy, according to the record, offered no expert opinion as to the cause of appellant’s injuries.

Dr. Maroon was the third medical expert called to testify on behalf of appellant. Dr. Maroon first examined Ms. Moran in October of 1987, ten months after the automobile accident, with regard to neck and left arm pain. Dr. Maroon testified that appellant told him that she had developed these complaints following a 1985 work-related injury. Dr. Maroon performed a myelogram and CAT scan which revealed degenerative changes at the C5/C6 level of the neck. Dr. Maroon testified that, within a reasonable degree of medical certainty, based upon Ms. Moran’s entire history, that the work-related injury was the initial cause of the problems, which were then aggravated by the automobile accident. While Dr. Maroon believed that there was a relationship between the automobile accident and Ms. Moran’s complaints of pain, he could not state the degree of that relationship. Dr. Maroon gave appellant the option of surgery but, as he testified, he informed her that there were no guarantees it would help and that her situation was not a clear-cut case calling for surgery. Surgery was performed on January 18, 1988. Following surgery, Ms. Moran continued to complain of pain in her arm and neck, which Dr. Maroon characterized as markedly atypical and most unusual. Dr. Maroon testified that, at that time, appellant was diagnosed as suffering from emotional overlay and psychiatric problems as the result of the surgery. There was also a subsequent diagnosis of “conversion hysteria”; a condition wherein Ms. Moran complained that her legs were paralyzed, yet there was no objective reason for the paralysis. Testifying as to the significance of appellant’s history, Dr. Maroon recalled that Ms. Moran had told him, in her history, that the automobile accident caused only a minimal and temporary increase of pain. Finally, Dr. Maroon testified that following appellant’s surgery he could find no objective findings to support the subjective complaints of pain. At that point, according to Dr. Maroon, there was no further treatment he could offer Ms. Moran.

The fourth physician to testify on appellant’s behalf was Dr. Stept, of the Shadyside Pain Clinic. Dr. Stept first saw appellant on June 30, 1988, as a self-referral. Dr. Stept commented that it was unusual to see a patient on a self-referral basis, as 95% of the patients at the clinic are referred by other physicians. Dr. Stept testified that he performed several nerve block treatments on Ms. Moran in an attempt to alleviate her pain. The doctor stated that while he believed that she was making significant progress with her treatments, Ms. Moran nevertheless sought treatment from another physician.

The final physician called to testify by appellant was Dr. Samuelson. Of all the doctors to testify, Dr. Samuelson was the only one to state, within a reasonable degree of medical certainty, that appellant’s injuries were causally related to the automobile accident. However, there were numerous factors which could have raised serious doubts, in the minds of the jurors, as to the credibility to be given to this doctor’s opinion. First, Dr. Samuelson admitted that he had reviewed no diagnostic test results showing the condition of appellant’s disc prior to the automobile accident. Further, Dr. Samuelson stated that he had not reviewed the records of Drs. Vates or Amayo, two of Ms. Moran’s treating physicians, in rendering his opinion. Finally, Dr. Samuelson’s work-related history may have undercut his effectiveness as an expert witness. Dr. Samuelson confirmed that he had been fired by Dr. Spitz, whom he had worked for in Philadelphia. During that same period he was released from his duties at the Broad Street Hospital in Philadelphia. Later, after becoming an associate staff member at St. John’s Hospital in Steubenville, Ohio, he was denied full clinical privileges and later had his staff privileges revoked. Dr. Samuelson also admitted that he had been denied privileges at Ohio Valley Hospital, Weirton Hospital, and that his application for privileges at East Liverpool City Hospital has never been acted upon and he has never received privileges at that hospital. The only hospital at which Dr. Samuelson has privileges, according to his testimony, is Potter’s Medical Center, a 50-bed hospital owned by his wife.

Appellee called two expert medical witnesses, neither of whom had been hired by appellee to examine appellant. Dr. Amayo first saw Ms. Moran on March 3, 1986, at the Allegheny Center Mall, a sub-division of the Harmarville Rehabilitation Center. Ms. Moran, during her history, informed Dr. Amayo of the work-related incident involving the combative patient. Ms. Moran also informed the doctor that she had pain in her neck which occasionally radiated to the left upper extremity. Dr. Amayo performed a physical examination and diagnosed Mrs. Moran as suffering from chronic cervical strain. He prescribed physical therapy. Dr. Amayo next saw Ms. Moran on March 18, 1986, at which time she complained that she was not improving with physical therapy. During that visit Ms. Moran also related an incident where her husband had forcefully grabbed her causing pain in her neck. Dr. Amayo prescribed continued physical therapy and informed Ms. Moran that he would soon release her to go back to work. During her next visit with Dr. Amayo, Ms. Moran continued to complain of pain although the doctor could find no significant problems. The doctor again informed Ms. Moran that he was ready to release her to return to work. Subsequent to that visit, Ms. Moran failed to attend three scheduled appointments as well as her physical therapy sessions.

Finally, appellee offered the testimony of Dr. Durning. The doctor first examined Ms. Moran on June 5, 1988, at his office. While giving Dr. Durning a history, Ms. Moran told him of the work incident involving the combative patient. Ms. Moran also told Dr. Durning that she was under the care of Dr. Vates when she was involved in an automobile accident. Dr. Durning testified that Ms. Moran told him that the automobile accident had caused only a temporary increase in her symptoms. Dr. Durning testified, to a reasonable degree of medical certainty, that the then-current symptoms he observed were principally the result of the work-related incident. He was unable to determine what part of the current symptoms were causally related to the automobile accident.

Following this extensive medical testimony the jury returned a general verdict in Todd Machuca’s favor.

As stated previously, when reviewing the propriety of an order denying a motion for a directed verdict or for a judgment n.o.v., the sole function of this court is to determine whether there was sufficient competent evidence to support the verdict. Curran v. Philadelphia Newspapers, Inc., supra. This court will reverse the trial court only when there has been an error of law or a clear abuse of discretion. Timbrook v. Foremost Insurance Co., supra. In order to successfully prove liability against appellee, it was necessary for appellant to establish that the automobile accident was a substantial factor in causing her harm. Here, the expert medical testimony was conflicting as to what extent, if any, of appellant’s injuries were related to the automobile accident. A jury, when confronted with conflicting expert testimony, is free to determine which opinions it will believe and which it will discredit. Clearly, there was conflict among these various experts. At best, appellant’s most credible experts could only opine that the automobile accident caused some injury to appellant, but could not distinguish the extent caused in the automobile accident from that caused by the work-related incident. Appellant argues that the fact that any injury was suffered as a result of the accident, coupled with the appellee’s admitted negligence, entitles her to a directed verdict on liability, or at least to a judgment n.o.v. on liability with the grant of a new trial as to damages. Such an argument ignores our previous ruling in Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984), wherein we held that the mere fact that an expert medical witness testifies that a vehicle collision from the rear can cause soft-tissue injury to the cervical area, and that the plaintiff might have very well suffered such an injury, did not require the jury, even after finding the defendant to have been negligent, to award plaintiff any amount of damages. Clearly, the present case is controlled by our holding in Holland. The jury was free to return a general verdict in appellee’s favor, in this case. The trial court committed no error of law, nor did it abuse it’s discretion by denying appellant’s motions for a directed verdict or for a judgment n.o.v.

Appellant’s second issue raises questions concerning the trial court’s ruling on a motion in limine and charge to the jury. At the pretrial conference, appellant presented the trial court with a motion in limine requesting, inter alia, that appellee be prevented from introducing any evidence to the jury about the existence or receipt of worker’s compensation, medical or wage loss benefits paid to appellant as a result of the work-related incident. The trial court denied the motion and instead fashioned an order treating medical benefits and wage loss benefits separately for evidentiary purposes. Regarding medical benefits, the trial court ruled that if appellant attempted to introduce any medical bills incurred after the date of the automobile accident and paid for by, or submitted to, the compensation carrier, appellee would have the opportunity to explore the existence and receipt of these benefits by appellant. Regarding lost wages, the trial court ruled that appellant could introduce evidence of past lost wages, but the court would instruct the jury to deduct $168.00 per week from any past wage loss determination. At the close of the trial the court gave the following charge to the jury with respect to the medical bills incurred by appellant:

Now, then first, let me sort of, before we go further, say what the case involves and what it does not involve. You have listened to and observed a great deal medical evidence in this case, and you have also heard quite a large number, I, think, of Doctors and so forth to whom the Plaintiff went for treatment or consults and what not, who didn’t even appear in court: which, of course, is perfectly natural because when you have so many, there is a limit to the number you can call, you know. But undoubtedly, it has occurred to you that there must be enormous medical expenses involved here because you know how they have gone through the roof. I am sure they are far greater than I would even be able to pay. But they are not involved here in this case at all because that is taken care of here from a source that has nothing to do with your deliberations. So all medical expenses which have occurred and been paid or which have occurred and not been paid, presumably will undoubtedly be paid, and it will not cost the Plaintiff anything and it will not cost the Defendant anything. So don’t think about things that are not in this case, just what is____ And for the same reason and following the same — for the same reason, if you were to find that the Defendant is liable here and that the Plaintiff should be awarded for damages for lost earnings up to the time of the trial from the time of this automobile accident, you would be required to deduct from any such finding the sum of $168.00 a week, which, again, she receives just as the medical bills were paid, you see what I mean, having nothing to do with this — costing nothing more to this Defendant or this Plaintiff.

Appellant maintains that this charge, and the trial court’s ruling on the motion in limine were both violative of the collateral source rule. According to appellant, the jury was influenced by evidence of collateral benefits when making its determination as to liability.

Regarding appellant’s argument that the trial court’s ruling on the motion in limine violated the collateral source rule, we must disagree. In response to the motion in limine, the trial court ruled that if appellant attempted to introduce any medical bills incurred subsequent to the automobile accident, which had already been paid by the compensation carrier, then appellee was going to be allowed to bring to the jury’s attention that these bills were paid in connection with her work-related injury. Such a ruling by the trial court is logically consistent with our holding in Collins v. Cement Express Co., 301 Pa.Super. 319, 447 A.2d 987 (1982). In Collins the plaintiff raised the argument before this court that the introduction, at trial, of testimony that he had received Social Security Disability benefits was violative of the collateral source rule. This court concluded that because plaintiff, himself, had first introduced the subject at trial, defendant could properly probe into the subject on cross-examination. Similarly, that was the result produced by the trial court’s ruling in the present case. The ruling merely provided that if appellant was going to introduce medical bills relating to the compensation claim, appellee was going to be permitted to explore the source of payment of those bills. The ruling did not permit appellee to address the subject of compensation payments unless and until this subject was first addressed by appellant. Indeed, appellant did not introduce any medical bills at trial, and the subject of worker’s compensation was never mentioned by appellee. As to the part of the ruling on the motion in limine dealing with past lost wages, again we find the trial court did not err. By introducing evidence of past lost wages, appellant was entering into the realm of the worker’s compensation subject area. The order fashioned by the trial court was a means of balancing the interests of both parties. The order did not allow the appellee to engage in questioning as to other sources of payment for past lost wages, yet it safeguarded against an undue windfall for appellant by calling to the jury’s attention that a certain sum had to be deducted from any award for past lost wages, as those amounts were paid to compensate for a work-related injury that was in no way associated with the automobile accident giving rise to the instant lawsuit.

Finally, we conclude that the trial court’s charge to the jury was not violative of the collateral source rule. As appellee notes, this situation is distinguishable from the normal scenario in which collateral source issues arise. All of the cases cited by appellant involve situations wherein a plaintiff is injured in an accident, receives medical and/or wage loss benefits for the injuries sustained as a result of that accident, and during the subsequent suit against the tortfeasor to recover for those same injuries, the tortfeasor attempts to introduce evidence of the payments from the collateral source. In those situations the rationale behind the application of the collateral source rule is that it would be unfair for the wrongdoer to receive the benefit of payments made by the collateral source. As stated by the Supreme Court in Boudwin v. Yellow Cab Co., 410 Pa. 31, 33, 188 A.2d 259, 259 (1963), “a tortfeasor may not ride to immunity from his wrong on the back of worker’s compensation paid by someone else.” In the present situation, appellant had suffered a prior accident and was already receiving worker’s compensation benefits for those injuries when the accident giving rise to this litigation occurred. Thus, this was not a situation where appellee was attempting to receive the benefit of the compensation payments for injuries he may have caused to appellant. The payment of the compensation pre-dated the happening of the accident in this instance. The trial judge was therefore faced with a difficult situation. The trial judge realized that after listening to seven different doctors testify regarding the various tests and treatments administered to appellant, the jurors would realize that appellant had incurred some tremendous medical expenses. However, many, if not all, of those expenses had nothing to do with the alleged injuries suffered as a result of the automobile accident. Therefore, the trial court was faced with balancing the interests of each party without prejudicing either. To leave the jury with the impression that all of this medical treatment had gone uncompensated would have been prejudicial to appellee. As a result, the trial court fashioned a jury charge that we believe struck a proper balance in light of the facts, and prejudiced neither party. This same conclusion holds true for that part of the charge respecting past lost wages. Again, appellant was already receiving such benefits for injuries related to a separate accident when this accident occurred. Furthermore, Ms. Moran’s own doctor testified that he had examined her approximately one month prior to the auto accident and although he had cleared her to return to light-duty work, appellant had not done so as of the date of the automobile accident. By all accounts, it did not seem as though appellant was planning to return to work at any time in the near future when the automobile accident occurred. Thus, any award for past wage loss had to be reduced by $168.00 per week as appellant was already receiving that amount as the result of a prior injury unrelated to the automobile accident. These were dollar amounts that the jury could not properly impose upon appellee even if it had found him liable. Therefore, we conclude that the trial court’s charge to the jury was not violative of the collateral source rule.

Judgment affirmed.

DEL SOLE, J. files a concurring statement.

DEL SOLE, Judge,

concurring.

Upon review of the effect of the trial court’s ruling on the motion in limine which resulted in the exclusion of evidence relating to the benefits paid through worker’s compensation, I conclude that a proper result was achieved in accordance in 75 Pa.C.S.A. § 1722 entitled “Preclusion of pleading, proving and recovering required benefits.” Because this evidence was not introduced, and because in my view it could not have been under the Motor Vehicle Financial Responsibility Law, I would find no need to discuss the applicability of the collateral source rule to this case.

      . During the pendency of this action, Todd Machuca turned 18 years of age. By stipulation of the parties, the action was dismissed as to Mel Machuca.

      . During the pendency of this action, appellant married Michael Moran. At that time she changed her surname to Moran and will hereinafter be referred to as Ms. Moran.

      . Appellee also urges us to quash the appeal because appellant violated Pa.R.A.P. 2154 by failing to include the entire transcript in the reproduced record as requested by appellee in his counter-designation of the contents of the reproduced record. We find it unnecessary to enter sanctions in this case, for while the record is somewhat deficient as to the amount of transcript it includes, the full transcript is available to this court in the case file. We remind the appellant, however, that the rules are mandatory, not directory, and that in appropriate cases we will not hesitate to impose sanctions, including the dismissal of an appeal. See, e.g., Pa.R.A.P. 2188.


author: ROWLEY, President Judge:

text:
    597 A.2d 662
    NEWS PRINTING COMPANY, INC. v. Eric J. ROUNDY and Laine E. Roundy, Appellants. NEWS PRINTING COMPANY, INC., Appellant, v. Eric J. ROUNDY and Laine E. Roundy. NEWS PRINTING COMPANY, INC., Appellant, v. Eric J. ROUNDY.
    Superior Court of Pennsylvania.
    Submitted July 22, 1991.
    Filed Sept. 26, 1991.

      Frank J. Hartye, Hollidaysburg, for Roundy, appellant (at 1899) and appellee (at 1900 and 1901).
    Paul M. Puskar, Hollidaysburg, for News/Printing, appellant (at 1900 and 1901) and appellee (at^1899).
    Before ROWLEY, President Judge, and BECK and HOFFMAN, JJ.
   ROWLEY, President Judge:

These consolidated appeals arose from two separate actions brought by News Printing Company, Inc. (“News”) to recover on a loan made to its former employee, Eric J. Roundy (“Roundy”), during the course of their employment relationship.

I. HISTORY

The rather complex history of the instant case is as follows. In July, 1980, Harold Barnhardt (“Barnhardt”), the owner of the News, hired Roundy, who lived in Massachusetts, to work for the News as the general manager. Roundy, his wife, and their daughter moved to Hollidaysburg, Pennsylvania, where the News is located. On July 30, 1980, the News loaned Roundy $1,500.00 to enable him to pay an advance deposit on a house in Hollidaysburg which the Roundys were buying. The News also loaned Roundy $13,935.96 on September 30, 1980, for the down payment on the house. On September 30, 1980, Roundy signed an I.O.U. for $15,435.96 in which he promised to repay the loans on October 22, 1980. Roundy did not repay the loans and, on October 25, 1980, his employment with the News was terminated.

On November 13, 1980, the News instituted an action against Mr. and Mrs. Roundy, as husband and wife, to recover the loans. This action was docketed in the trial court at No. 2045 C.P. 1980. On January 21, 1981, the News instituted an action against Roundy, individually, to recover on the loans. This action was docketed in the trial court at No. 147 C.P. 1981. On December 4, 1981, Roundy filed an answer and counterclaim in the case docketed at No. 147 C.P. 1981 in which he alleged, inter alia, that the News had breached its employment contract with him. The two actions were consolidated for a jury trial.

On October 17, 1986, the jury found in favor of the News on its complaint against Mr. and Mrs. Roundy, docketed at No. 2045 C.P. 1980, and awarded it $15,435.96 plus interest. At No. 147 C.P. 1981 there was a stipulation for a directed verdict, in which the News was awarded $15,435.96 against Roundy. N.T. 10/16/86, at 295; N.T. 10/17/86, at 430. Also at No. 147 C.P. 1981, the jury found in favor of Roundy on his counterclaim and awarded him $18,280.00 against the News. Following the jury’s verdict, the parties filed post-trial motions, which were denied in an order entered on August 9, 1990. Judgment was entered on the verdict in favor of Roundy on November 14, 1990 and on the verdicts in favor of the News on November 20, 1990.

The parties filed notices of appeal. At No. 2045 C.P. 1980, Mr. and Mrs. Roundy filed an appeal which was docketed in this Court at No. 1899 Pittsburgh 1990. Also at No. 2045, the News filed a cross-appeal, which was docketed in this Court at No. 1900 Pittsburgh 1990. Finally, at No. 147 C.P. 1981, the News filed an appeal from the judgment entered on the jury’s verdict in favor of Roundy’s counterclaim. This appeal was docketed in this Court at No. 1901 Pittsburgh 1990. The appeals have been consolidated for our review. On appeal, the parties have raised the following two issues:

1) whether the evidence was sufficient to overcome the presumption of at-will employment; and
2) whether the trial court erred in its instruction on property held by tenants by the entirety.

Having carefully reviewed the record and considered the arguments presented, we affirm the judgments of the trial court.

II. SUFFICIENCY OF EVIDENCE

In its appeal from the judgment entered in Roundy’s favor on his counterclaim, the News argues that the evidence presented at trial was insufficient to overcome the presumption of at-will employment. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to Roundy, as the verdict winner. Our sole task is to determine if there was sufficient evidence to sustain the verdict. Fannin v. Cratty, 331 Pa.Super. 326, 331, 480 A.2d 1056, 1058 (1984).

In light of the foregoing standard of review, the evidence in the instant case is as follows. In 1980, Harold Barnhardt, the sixty-year-old owner of the News, decided to hire a general manager, who would be Barnhardt’s personal assistant and help him in running the News. In his search for a general manager, Barnhardt contacted Gardner Personnel, a New York City “head-hunting” agency. Eric J. Roundy, who was seeking employment in a managerial position, also contacted Gardner Personnel, and was informed of the opening at the News. On June 13, 1980, Barnhardt interviewed Roundy, then a Massachusetts resident, for the position at the. News. During the interview, Barnhardt stated that, as he was sixty years old, it was time for him to cut down on his participation in the business. He further stated that he was looking for someone to oversee all aspects of the business so that he could walk away from the News knowing that it was being run effectively. N.T. 10/16/86, at 206.

Roundy expressed his interest in the job, and said he would need six months to become effective. N.T. 10/16/86, at 261. Barnhardt stated that he would give Roundy the time he needed to “get into” the job. N.T. 10/16/86, at 179, 184-85. “As part of the job offer, Mr. Barnhardt offered to help the Roundys purchase a home and pay for their moving expenses.” Brief for the News, at 4; N.T. 10/15/86, at 50-52. Mr. Roundy did not accept the job on June 13,1980. On June 21, 1980, Roundy and his wife visited Hollidaysburg. The Barnhardts took the Roundys to look for suitable houses, and Mrs. Roundy found a house in Hollidaysburg that she liked. During this visit, Barnhardt indicated that the News would loan Roundy money to enable the Roundys to purchase a house in Pennsylvania. N.T. 10/15/86, at 50, 111-12, 117.

Barnhardt testified that he did not hire Roundy for a definite period of time, but, rather, that Roundy was on probation indefinitely from the day when he was hired. N.T. 10/15/86, at 63. However, Barnhardt admitted that he told Roundy he would give him time to “get into” the job. N.T. 10/16/86 at 179,184-85. Roundy testified that, had he known that he would be on probation indefinitely, he would not have accepted the job. N.T. 10/16/86, at 220.

Roundy accepted the job with the News and commenced his employment on July 14, 1980. In doing so, he quit his job at Barney Rabin Company and turned down an employment offer from Tracon Company in Charlestown, Massachusetts. In addition, the Roundys sold their house in Massachusetts and purchased a house in Hollidaysburg. Roundy borrowed $15,435.96 from the News to purchase the Hollidaysburg house. On October 4,1980, Mrs. Roundy moved, into that house. On October 25, 1980, Roundy’s employment with the News was terminated.

The News argues that the presumption of employment at will was not overcome, because the evidence failed to show that Barnhardt and Roundy intended to form a contract for a reasonable period of time. Employment is presumed to be at will. Geary v. United States Steel Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974). However, the parties’ intent is a question for the jury. DiBonaventura v. Consolidated Rail Corp., 372 Pa.Super. 420, 425, 539 A.2d 865, 868 (1988).

The existence of additional consideration is relevant in ascertaining the parties’ intent that the contract would not be terminable at will. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 552, 526 A.2d 1192, 1201 (1987), alloc. denied, 517 Pa. 607, 536 A.2d 1331 (1987); Marsh v. Boyle, 366 Pa.Super. 1, 5, 530 A.2d 491, 493 (1987). Additional consideration exists when an “employee undergoes a substantial hardship other than the services which he is hired to perform.” Darlington v. General Electric, 350 Pa.Super. 183, 201, 504 A.2d 306, 315 (1986). “When sufficient additional consideration is present, an employee should not be subject to discharge without just cause for a reasonable time.” Veno v. Meredith, 357 Pa.Super. 85, 102, 515 A.2d 571, 580 (1986). Whether an employee has given additional consideration sufficient to rebut the at-will presumption is a question of fact for the jury. Scullion v. EMECO Industries, Inc., 398 Pa.Super. 294, 298, 580 A.2d 1356, 1358 (1990).

Having thoroughly reviewed the record, we agree with the trial court that sufficient evidence was presented by Roundy to support the jury’s finding that an implied contract for a reasonable period of time existed between Roundy and the News. By quitting his job at Barney Rabin Company, rejecting the job offer from Tracon, selling his Massachusetts house, and purchasing a home in Pennsylvania, Roundy provided additional consideration sufficient to rebut the at-will presumption. Moreover, Roundy’s statement that he needed six months to become effective and Barnhardt’s agreement to give Roundy time to “get into” the job indicate the parties’ intent to enter into a contract of employment for a reasonable period of time. Accordingly, the evidence is sufficient to support the jury’s finding that the at-will presumption was overcome.

III. JURY INSTRUCTIONS

The Roundys, in their appeal from the judgment entered against them at No. 2045 C.P. 1980, argue that the trial court erred in instructing the jury on the presumption of spousal liability in regards to entireties property. This instruction was erroneous, the Roundys contend, because, at the time Roundy signed the I.O.U. for the loans from the News, the Hollidaysburg property was not yet owned by Mr. and Mrs. Roundy. The Roundys contend that the trial court erred in 1) refusing to give certain of their requested instructions; and 2) instructing the jury on the entireties presumption.

In reviewing a trial court’s instructions to the jury, we must view the court’s charge in its entirety to determine whether prejudicial error was committed. Cooper v. Burns, 376 Pa.Super. 276, 283, 545 A.2d 935, 938 (1988), alloc. denied, 522 Pa. 619, 563 A.2d 888 (1989) [citing Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984)]. A trial court need not instruct the jury using the precise language submitted by the parties. Rather, the trial court must accurately define the issues and correctly review the applicable law. Cooper, 376 Pa.Superior Ct. at 283, 545 A.2d at 938 [quoting Spearing v. Starcher, 367 Pa.Super. 22, 29, 532 A.2d 36, 40 (1987)].

In the instant case, the trial court instructed the jury on the entireties presumption, in pertinent part, as follows:

[O]rdinarily, no agency is to be inferred as between husband and wife____ Now there are limited exceptions to that general rule. One is with regard to entireties property. Now by entireties property, I simply mean property which is owned or to be owned jointly by both husband and wife in their joint names. Now with regard to an entireties property, ... there may be a rebuttable presumption that during the term of a marriage either spouse has the power to act for both without specific authorization, so long as the benefits of such action inure to both____ [I]f you find that ... Mrs. Roundy, knew or should have known that ... Mr. Roundy was about to borrow money from News Printing Company, in aid of or to facilitate the acquisition or purchase of property to be placed in both of their names, and if you find also that the borrowing spouse, Mr. Roundy, intended at the time to act also on behalf of his wife, then it is presumed that the spouse who so borrowed, Mr. Roundy, had the authority to act for and to bind his spouse to repayment of the borrowed money, unless ..., Mrs. Roundy, or her husband, produced evidence to prove that the borrowing spouse was in fact not so authorized.

N.T. 10/17/90, at 391-393. The Roundys contend that the above instruction was erroneous because, at the time the loan was made, the Roundys did not own the Hollidaysburg property and, thus, were not tenants by the entirety of that property.

We conclude that the trial court did not err in instructing the jury on the entireties presumption. In J.R. Christ Construction Co. v. Olevsky, 426 Pa. 343, 232 A.2d 196 (1967), the husband, without his wife’s knowledge, contracted with a construction company to make improvements on the spouses’ entireties property. In holding that the wife was also liable on the contract, the Court defined the entireties presumption as follows:

The presumption ... with respect to properties held by the entireties, is that during the term of a marriage, either spouse has the power to act for both, without specific authority, so long as the benefits of such action inure to both.

J.R. Christ, 426 Pa. at 349, 232 A.2d at 199 (emphasis added). In the instant case, the money which Roundy borrowed from the News was used to purchase the Hollidaysburg entireties property, as opposed to improving existing entireties property. However, based on the particular circumstances of the instant case, this distinction does not make the entireties presumption inapplicable.

Mrs. Roundy was aware of and involved in both the sale of the Massachusetts house, which was entireties property, and the purchase of the Hollidaysburg house, which was also entireties property. Mrs. Roundy looked at the Hollidaysburg house, approved of its purchase, and signed the mortgage to finance its purchase. She placed an ad to sell the Massachusetts house, showed it to potential buyers, and sold it. Since the purchase of the Hollidaysburg house closed prior to the sale of the Massachusetts house, the Roundys had discussed getting a “bridge” loan from a bank to pay the down payment on the Hollidaysburg property. Mrs. Roundy knew that her husband had paid the down payment on the Hollidaysburg property before the Massachusetts house was sold. However, she was unaware that Roundy had borrowed the money from the News.

The above evidence shows that Mr. and Mrs. Roundy had already decided to purchase the Hollidaysburg entireties property before the loan was made by the News. The evidence further shows that Mrs. Roundy agreed that her husband should purchase the Hollidaysburg property on September 30, 1980, before the Massachusetts property was sold and, consequently, before the money from the sale of the Massachusetts house could be used as a down payment. Although Mrs. Roundy was unaware of the loan from the News, the loan was used to purchase entireties property already selected by the Roundys, and the benefit of the loan inured to both Mr. and Mrs. Roundy. Accordingly, the trial court did not err in instructing the jury on the entireties presumption. For the foregoing reasons, the judgments of the trial court are affirmed.

Judgments affirmed.

      . Initially, Roundy filed a notice of appeal on October 22, 1990, and the News filed a cross-appeal, from the trial court’s order denying the parties’ post-trial motions. Roundy’s appeal was docketed at No. 1443 Pittsburgh 1990. The News’ appeal was docketed at No. 1612 Pittsburgh 1990. In a per curiam order of this Court entered on February 5, 1991, both appeals were quashed because no judgments had been entered.

      . The News also argues that the trial court did not err in molding the verdict to include interest only on the salary of Roundy. However, since the Roundys do not argue on appeal that the trial court erred in so molding the verdict, we do not address this argument.

      . The Roundys argue that the court erred in failing to give their requested instructions numbered one, two, and six. Our search of the record certified to this Court has located no copy of the instructions requested by the Roundys. It is an appellant's duty to provide a record which is sufficient to allow meaningful appellate review. Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). Since the Roundys have failed to provide us with a copy of their requested jury instructions, we are precluded from reviewing this issue.