author: HESTER, Judge:

text:
    451 A.2d 474
    William H. CRAWFORD, Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1982.
    Filed Oct. 1, 1982.

      Robert J. Campbell, Beaver Falls, for appellant.
    Daniel R. Gigler, Pittsburgh, for appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   HESTER, Judge:

Presently before the court is the appeal of William H. Crawford (hereinafter called Crawford) from the order of the lower court dated April 10, 1981, wherein appellee Allstate Insurance Company’s (hereinafter called Allstate) preliminary objection in the nature of demurrer to Crawford’s complaint and first amended complaint was sustained and Crawford’s complaint and first amended complaint dismissed with prejudice.

We reverse.

On December 4,1980, Crawford filed an action in assumpsit against Allstate to recover no-fault benefits allegedly due pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, 40 P.S. Section 1009.101 et seq. On January 15, 1981, Allstate filed its demurrer alleging that Crawford failed to state a cause of action upon which relief could be granted under the No-Fault Act. On January 23, 1981, Crawford filed a first amended complaint. Argument on Allstate’s demurrer was heard by the lower court on March 13, 1981 and by order dated April 10, 1981, the lower court sustained Allstate’s demurrer and dismissed with prejudice Crawford’s complaint and first amended complaint. It is from this April 10, 1981 order that the instant appeal has been brought.

The rather unique set of operative facts herein involved may briefly be summarized as follows: Allstate issued to Crawford an insurance policy which provided security to Crawford in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act. That policy (No. 0-28-223892) was in effect on June 20, 1979. At approximately 2:30 P.M. on that date, Crawford, while walking along railroad tracks near the Beaver River in Beaver County, Pennsylvania, was struck from the rear by a 1978 Chevrolet utility pick-up truck bearing Ohio license plate No. 5J615. The unusual aspect of this case is that at the time the Chevrolet pick-up truck struck Crawford, same was operating on railroad tracks, having been equipped with a special device which enabled it to so operate. Crawford alleges, however, that both prior and subsequent to the June 20,1979 accident, the 1978 Chevrolet utility pick-up truck which struck him “was operated upon public highways as well as upon railroad tracks.” (Appellant’s first amended complaint, § 6).

The lower court found that the utility pick-up truck involved, despite its potential for operation on rails by means of special equipment, generally must be considered a “motor vehicle” under the No-Fault Act. Contrary to this general finding, however, the lower court then concluded that the type or kind of accident which occurred and the resultant injuries sustained fell outside the coverage intended by the drafters of the No-Fault Act. The lower court based its conclusion upon the fact that at the time of the accident, the unit in question—the 1978 Chevrolet pick-up truck—was not being operated as a motor vehicle. Accordingly, the court sustained Allstate’s demurrer and entered its April 10, 1981 order.

We disagree.

Initially, we are cognizant of the remedial spirit of the Pennsylvania No-Fault Act as set forth in both Article I (purposes and definitions) and Article II (right to benefits) of said Act.

§ 102. Findings and purposes.
(a) Findings.—-The General Assembly hereby finds and declares that: . . .
(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce; (Emphasis added). 40 P.S. § 1009.102(a)(3). § 201. Right to basic loss benefits; limitation on benefits.
(a) Accident within this State.—If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provision of this Act. (Emphasis added). 40 P.S. § 1009.201(a).

Moreover, we again reiterate our position that if the court is to err in ascertaining the intent of the Legislature in close or doubtful cases, it should err in favor of coverage for the insured. Dull v. Employer’s Mutual Casualty Company, 278 Pa.Super. 569, 420 A.2d 688 (1980); see also Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979).

Contained in the definitional section of the Act are the following:

“Motor vehicle” means a vehicle of a kind required to be registered under the act of April 29, 1959 (P.L. 58, No. 32), known as The Vehicle Code.
“Maintenance or use of a motor vehicle” means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. . . .
“Victim” means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; “deceased victim” means a victim suffering death resulting from injury. 40 P.S. § 1009.103.

A reading of the applicable provisions of the 1976 Vehicle Code demonstrates to us that the utility pick-up truck which struck Crawford on June 20, 1979, was of a kind required to be registered under the 1976 Vehicle Code, which, in its registration provision, provides:

“No vehicle shall be operating upon any highway in this Commonwealth until the vehicle is properly registered with the Department as provided in this chapter.” 75 Pa.C.S. § 1302(a).

Thereafter, “Vehicle” is defined as a

“. . . device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” (Emphasis added).

For our present purpose of determining if the grant of Allstate’s demurrer was proper, we accept as true all well-pleaded facts contained in Crawford’s first amended complaint; specifically, wherein at paragraph 6 it is alleged that both before and after the date of the accident, the 1978 Chevrolet pick-up truck had been operated upon public highways as well as upon railroad tracks. Accepting this allegation as true, it necessarily (and logically) follows that the unit which struck Crawford is a “vehicle” as defined in the 1976 Vehicle Code inasmuch as it was of a kind required to be registered thereunder. It is a transportation device not used exclusively upon rails or tracks which has often times been used upon the highway. Accordingly, the Chevrolet in question also falls within the definition of what constitutes a “motor vehicle” as defined in 40 P.S. § 1009.103 of the No-Fault Act.

Thereafter, it is our opinion that the lower court improperly restrictively interpreted the Act’s phrase “maintenance or use of a motor vehicle” to include only the maintenance or use of motor vehicles when used as vehicles on the highway. Our analysis of the No-Fault Act does not support such an interpretation. We believe that if our Legislature had intended to limit No-Fault coverage to situations wherein a motor vehicle is being used as a vehicle upon the highways, it could and would have clearly so stated in Section 40 P.S. § 1009.103. Therefore, in the absence of such a limitational definition, we feel compelled to reverse the order of the lower court.

On numerous occasions, we have approved recovery of No-Fault benefits under the Act by an insured who was injured as a result of the “maintenance or use of a motor vehicle” wherein at the time of the accident, the motor vehicle was not being operated upon a highway. In Erie Insurance Exchange v. Fleagle, 285 Pa.Super. 310, 427 A.2d 651 (1981), no-fault benefits were approved for an auto mechanic who was injured by a motor vehicle being operated in his employer’s parking lot.

Contrariwise, Crusco v. Insurance Company of North America, 292 Pa.Super. 293, 437 A.2d 52 (1981) must be distinguished with and is non-dispositive of the instant case. In Crusco, we denied No-Fault coverage to the Administratrix of a decedent’s estate (in her fiduciary capacity) wherein the decedent was killed when an explosion destroyed the motor home she was occupying. There, we held: “[T]he use of the refrigerator and stove in the preparation of a meal is not a use as a device of transportation” (Crusco, 292 Pa.Superior Ct. 298, 437 A.2d at p. 54).

Consistent therewith, we are of the opinion that the proper test in applying the “maintenance and use” concept to individual fact situations is whether the injury is causally related to the use of a motor vehicle. In the instant case, we feel that it is (while in Crusco, we determined that it was not).

For the foregoing reasons, we reverse the order of the lower court. Appellant’s complaint and first amended complaint are hereby reinstated and appellee is granted twenty (20) days in which to file a responsive pleading thereto.

Order reversed.

      . The 1959 Vehicle Code has been repealed and replaced in this Commonwealth by the Act of June 17, 1976 (P.L. 162 No. 81), also known as The Vehicle Code.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    451 A.2d 477
    DERRICKHEIM COMPANY, a Pennsylvania Corporation, v. Richard L. BROWN and Mary E. Brown, his wife and Arthur J. Sumoske, Jr. and Karen L. Sumoske, his wife, Appellants. Richard L. BROWN, Mary E. Brown, Arthur J. Sumoske, Jr. and Karen L. Sumoske, Appellants, v. Frank F. WEBER a/k/a Frank Weber and any and all of his Unknown Heirs, Devisees, Representatives and Assigns and The Derrickheim Company.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Feb. 25, 1983.

      John A. Burkhiser, Oil City, for appellants.
    John A. Metz, Jr., Pittsburgh for Derrickheim, appellee (at No. 70) and Weber, appellees (at No. 71).
    Before CAVANAUGH, WATKINS and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This appeal was taken from orders entered following a non-jury trial on two consolidated actions to quiet title involving a 120 acre tract of land in Venango County, Pennsylvania. For the reasons discussed below, we reverse the orders of the lower court.

Briefly stated, the facts are as follows. Prior to December, 1942, the property in question was owned by Frank Weber. In December, 1942, the Treasurer of Venango County sold the property to the Commonwealth of Pennsylvania for non-payment of taxes. Notice of the sale, however, was not given to Frank Weber as required by law. In September, 1946, the Commonwealth conveyed the property to George and Martha Holliday. In June, 1953, Richard and Mary Brown, appellants herein, entered into an agreement of sale to purchase the property from the Hollidays. The agreement stipulated that a deed would not be executed until the full purchase price was paid. On July 26, 1969, the Browns, as equitable owners of the property, leased the oil and gas rights in the property to Derrickheim Company, appellee herein. The lease was to extend “for a term of four (4) years . . . and as much longer as oil and gas is produced in paying quantities.” The Browns were to receive as royalties one-eighth of all oil produced from the land, delivered free of expense into tanks or pipelines to the Browns’ credit. The lease agreement also gave Derrickheim an option to purchase the property for $6,000 anytime during the primary lease term of four years.

Derrickheim commenced drilling operations on the premises but in September, 1969, shortly before completion of the drilling process, it learned of the defect in the tax sale. The drilling process was completed on September 25, 1969, but, due to the uncertain state of the title, Derrickheim at that point ceased operations at the site and capped the well. Derrickheim requested that the Browns bring an action to quiet title against the heirs of Frank Weber but the Browns failed to do so. Between September of 1969 and the filing of the instant suit in June, 1978, Derrickheim continued to mow the area around the well site but it never began active operation of the well.

In September, 1973, following the expiration of the primary lease term of four years, the Browns notified Derrickheim that the lease had expired or, in the alternative, had been forfeited. Derrickheim responded by denying that the lease had terminated and asserting that it was still a valid agreement. Neither party took any further action on the matter for over four years. In June, 1977, the Browns finally obtained legal title to the property from the estate of George Holliday. In October, 1977, Arthur and Karen Sumoske entered into an agreement of sale with the Browns to purchase the property. It was this event which precipitated the filing of the instant actions.

Derrickheim filed the first complaint in June, 1978, seeking a determination of the validity of the oil and gas lease entered into between Derrickheim and the Browns in July, 1969. The Browns and the Sumoskes filed a second action seeking to terminate whatever interest the heirs of Frank Weber might have had in the property due to the lack of notice of the tax sale, and also seeking to have the oil and gas lease declared terminated.

With regard to the interest of the heirs of Frank Weber, the lower court entered an order on June 15, 1979, directing the heirs of Frank Weber to file an action of ejectment within thirty days or forever be barred from asserting any right or interest in the land. No such action was filed and the court therefore stated in its final order that the heirs of Frank Weber were forever barred from asserting any right, title or interest in the land. No one has appealed from that portion of the order and therefore we will not address it.

With regard to the lease, the lower court found that the oil and gas lease was still a valid instrument and it stipulated in the order that the terms of the lease would take effect on the date of the order. The Browns and Sumoskes were barred from asserting any right, title or interest in the land which was inconsistent with the interest of Derrickheim under the terms of the lease. The Browns and Sumoskes have appealed from this determination.

In ruling as it did, the lower court agreed with Derrickheim’s contention that upon learning of the cloud on the title, it was “prudent and proper” for Derrickheim to suspend operations until the cloud was removed. The court concluded that since Derrickheim was justified in waiting until the cloud was removed before proceeding with further operation of the well, the running of the lease term was suspended until such time as the cloud was removed. The court further found that Derrickheim could not have exercised the option to purchase outright until the cloud was removed and it therefore ordered that the option to purchase remain with the lease, which was reinstated effective on the date of the order.

Under normal landlord and tenant law, a lessor’s covenants of title and quiet enjoyment are not breached by the mere existence of a cloud on title. The breach does not occur until and unless the lessee is evicted by a holder of paramount title. See Restatement Second, Property, section 4.3 (1977); Strong v. Nesbitt, 267 Pa. 294, 110 A. 250 (1920). However, oil and gas leases are not controlled by normal landlord and tenant law. See Kuntz, A Treatise on The Law of Oil and Gas, section 52.1 (1978). Under the circumstances presented in this case, we agree with the trial court’s conclusion that the cloud on the title relieved Derrickheim of any affirmative duty it may have had under the lease to drill for oil or make rental payments. However, we cannot agree that the cloud on the title stopped the running of the lease term. The lease specifically stated that it would run for a term of four years “and as much longer as oil and gas is produced in paying quantities.” Since oil and gas was not being produced in paying quantities, the lease did not continue to run past the primary term of four years. The fact that it was “prudent” for Derrickheim to suspend operations upon learning of the cloud on the title does not justify disregarding the express language of the lease. The Pennsylvania Supreme Court has held in cases involving oil and gas leases containing lease terms of a period of years and “as much longer as oil and gas is produced” or similar language, that when oil and gas is no longer being produced, the lessee becomes a tenant at will and the tenancy can be terminated by either party upon notice being given. White v. Young 409 Pa. 562, 186 A.2d 919 (1963); Clark v. Wright, 311 Pa. 69, 166 A. 775 (1933); Cassell v. Crothers, 193 Pa. 359, 44 A. 446 (1899). Derrickheim’s tenancy in the instant case therefore terminated upon Derrickheim’s receipt of notice from the Browns that they considered the lease terminated.

Furthermore, we believe that the option to purchase also expired at the end of the primary term of four years. The lease specifically stated that the option to purchase could be exercised “at any time within the original term of this lease, being four (4) years from the date of execution and acknowledgment thereof.”, We agree with the lower court’s statement that a purchaser of an interest in real estate is not required to accept doubtful title. The Browns, however, were under no obligation to produce clear title until Derrickheim exercised its option to purchase in one of the ways specified in the lease. McBride’s Estate, 267 Pa. 250, 110 A. 149 (1920). Since Derrickheim never attempted to exercise its option to purchase, the Browns’ duty to convey clear title never arose. The option was not exercised during the term of the lease and it has therefore expired.

For the foregoing reasons, we reverse the orders of the lower court insofar as they direct judgment to be entered in favor of Derrickheim Company and against the Browns and Sumoskes. Judgment shall be entered in both actions in favor of the Browns and Sumoskes and against Derrickheim Company.

      . The lease specified that it would become null and void unless a well was completed within one year or unless Derrickheim paid rent of one dollar per acre per year until the well was completed.

      . Under the terms of the lease, Derrickheim could exercise the option to purchase by personal notice or certified mail at the Browns’ last known address or by paying the agreed purchase price into the Court of Common Pleas of Venango County for the sole use and benefit of the Browns.


text:
    451 A.2d 480
    Cleoria CORRA, v. Raymond COLL, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 2, 1980.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.

      F. Charles Petrillo, Wilkes-Barre, for appellant.
    Jonathan Blum, Assistant Public Defender, Wilkes-Barre, for appellee.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for participating party.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

In this appeal we are asked to decide whether indigent defendants in civil paternity actions have a constitutional due process right to appointed counsel.

On October 5, 1978, appellee, Cleoria Corra, filed a complaint in the Court of Common Pleas of Luzerne County seeking support for Lawrence Paul Corra from appellant, Raymond Coll, Jr., the alleged father of her son. On February 13, 1979, appellant, represented by Legal Services of Northeastern Pennsylvania for the limited purpose of pursuing appellant’s request for counsel, filed a motion for the appointment of a Public Defender. In support thereof, appellant filed an affidavit of indigency and also a Statement of Defense indicating that he planned to deny paternity and required legal representation. Trial was delayed pending resolution of appellant’s motion and, on August 2, 1979, the Luzerne County Court of Common Pleas en banc denied appellant’s request for a Public Defender. In a per curiam order of February 14, 1980, this Court granted appellant’s petition for interlocutory review by permission. Hence this appeal. For the following reasons, we reverse.

The Fourteenth Amendment to the United States Constitution provides, in part, that “No state shall. . . deprive any person of life, liberty, or property, without due process of law.” Due Process is a concept incapable of exact definition. Rather it is a flexible notion which calls for such procedural safeguards as a particular situation demands to ensure fundamental fairness to a potentially aggrieved litigant. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951). In Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113, 118 (1971), the Supreme Court held that “due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.”

This is a case of first impression in this Commonwealth and we, therefore, are without decisional or statutory guidance in determining whether indigent defendants have a due process right to court-appointed counsel in civil paternity actions. It is clear, however, that a resolution of this question cannot be reached by applying a wooden civil/criminal distinction. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile delinquency proceedings). That approach has long since been abandoned in favor of emphasis on the nature of the threatened deprivation. See In re Hutchinson, 279 Pa.Super. 401, 421 A.2d 261 (1980) (allocatur granted) (civil commitment hearings). As Judge Hoffman commented in Commonwealth ex rel. Finken v. Roop, 234 Pa.Super. 155, 171-172, 339 A.2d 764, 772-773 (1975), cert. denied and appeal dismissed, 424 U.S. 960, 96 S.Ct. 1452, 47 L.Ed.2d 728 (1976): “Euphemistic terminology is not determinative of the application of the Due Process Clause.. . We must consider the reality of the lower court’s commitment order. The serious deprivation of liberty and the unfortunate stigma which follow involuntary commitment render the distinction between ‘criminal’ and ‘civil’ proceedings meaningless.” Recently summarizing the decisional law on the right of indigents to appointed counsel, the Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649, rehearing denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1023 (1981), noted:

In sum, the Court’s precedents speak with one voice about what “fundamental fairness” has meant when the Court has considered the right to appointed counsel; and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured.

In Lassiter, the Court considered the inverse of the problem presented by the instant appeal: whether indigent parents in every parental termination proceeding have a due process right to court-appointed counsel. In upholding the decision of the North Carolina Court of Appeals that they do not, the Court weighed the presumption of the right to counsel in situations potentially involving the deprivation of liberty against three due process factors enunciated in the case of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976):

first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The Mathews v. Eldridge balancing test was also employed by the Supreme Court in Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981) wherein it was held that the failure to provide a blood grouping test for indigent defendants in paternity actions violated due process.

Three recent decisions in similar right-to-counsel actions, rendered subsequent to Lassiter and Little, and using the Mathews v. Eldridge test, provide support for the viewpoint that counsel is not constitutionally required. In Nordgren v. Mitchell, 524 F.Supp. 242 (D.C.Utah 1981), the U.S. District Court declined to adopt a blanket due process ruling requiring the appointment of counsel for indigent defendants in paternity actions. Instead, it held that the decision should be vested in the state trial court, subject to appeal, on a case-by-case basis. A similar conclusion was reached by the Supreme Court of North Carolina in Wake County ex rel. Carrington v. Townes, 53 N.C.App. 649, 281 S.E.2d 765 (1981), rev’d, 306 N.C. 333, 293 S.E.2d 95 (1982). Finally, in State ex rel. Adult and Family Services v. Stoutt, 57 Or.App. 303, 644 P.2d 1132 (1982), the Oregon Court of Appeals concluded that federal and state due process were not violated by the lower court’s refusal to appoint counsel for an indigent defendant in a state-initiated paternity action. Employing an after-the-fact analysis of the record, the Court found that an attorney could have had little effect on the result reached in that proceeding. The Court specifically declined to decide whether due process ever requires the appointment of counsel in Oregon filiation proceedings. Id., 644 P.2d at 1137 n. 7.

We have carefully reviewed those opinions and are nonetheless convinced that an evaluation of the Mathews v. Eldridge factors support the conclusion that denial of counsel for indigent defendants in civil paternity actions in Pennsylvania is inconsistent with due process.

Before applying those factors to the case sub judice, we first address the argument, raised by the Public Defender, that, since an adjudication of paternity cannot directly result in the deprivation of physical liberty, there can be no presumed right to counsel. As we have noted, the civil/criminal distinction is unavailing in determining whether counsel is constitutionally required. Thus it is of no moment that paternity actions, once governed by criminal statutes, are now civil in nature. See generally, Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982). This jurisdiction does not make criminal, and hence punishable by incarceration, the fathering of a bastard child. Commonwealth v. Strunk, 256 Pa.Super. 213, 219, 389 A.2d 1089, 1092 (1978) (dissenting opinion by Cercone, J.). An adjudication of paternity may, however, result in the future loss of physical liberty. Once paternity has been established, and a support order entered, a defendant who willfully fails to comply with said order when he has the financial ability to do so shall be guilty of a summary offense punishable by up to ninety days imprisonment. 18 Pa.C.S.A. § 4324. We cannot agree with the Public Defender’s position that this threatened deprivation of liberty is too remote to justify the appointment of counsel at the hearing at which paternity is established. But see Wake County ex rel. Carrington v. Townes, supra; Sheppard v. Mack, 68 Ohio App.2d 95, 427 N.E.2d 522 (1980).

A contrary result is not mandated by either Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), involving the Sixth Amendment right to counsel in criminal cases where imprisonment is not actually imposed, or Lassiter, supra. Proceedings to extinguish parental rights do not commonly raise the spectre of a loss of physical freedom; on the other hand, paternity actions, the object of which is to establish liability for support of an illegitimate child, always raise the potentiality of such loss. Due Process is, as we have said, a flexible concept the application of which varies according to the particular situation involved. It is our belief that the creation of a parent-child relationship is an example of the type of situation which demands a flexible application of due process. Accordingly, we analyze the due process requirements of Mathews v. Eldridge against a strong presumption that court-appointed counsel is constitutionally required for indigent defendants in a paternity proceeding.

The first factor—the private interests of appellant affected by the paternity action—weighs heavily in favor of the appointment of counsel. Not the least of those interests is the familial. The Supreme Court in Lassiter found “plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ ” is an important, protectible, interest. Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160, 68 L.Ed.2d at 649-650, quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972). The termination of that interest works a deprivation so “unique” that “a parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160, 68 L.Ed.2d at 650. The Pennsylvania Supreme Court recognized this when it held, in Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976), that unwed fathers have a right, coequal to that of unwed mothers, to consent to the adoption of an illegitimate child. See also Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977) (natural parent of illegitimate child entitled to visitation rights).

The creation of a parent-child relationship involves equally substantial and protectible familial interests. It is, therefore, unquestionable that “[J]ust as the termination of such [parent-child] bonds demands procedural fairness... so too does their imposition.” Little, 452 U.S. at 13, 101 S.Ct. at 2209, 68 L.Ed.2d at 637. (citation omitted).

The need for procedural safeguards at a paternity hearing is apparent in the light of the significant liberty interests placed in jeopardy at that juncture. Once paternity is established, that finding is res judicata and cannot be relitigated in a subsequent proceeding. Norris v. Beck, 282 Pa.Super. 420, 425, 422 A.2d 1363, 1365 (1980); R.J.K. v. B.L., 279 Pa.Super. 71, 74-75, 420 A.2d 749, 751 (1980); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 175, 384 A.2d 1285, 1287 (1978). As we have stated above, an adjudged father, financially able yet unwilling to comply with a support order, faces a possible deprivation of physical liberty. 18 Pa.C.S.A. § 4324. Consequently, denial of court-appointed counsel at the initial paternity proceeding may result in defendants being sent to jail without ever having had a meaningful opportunity to be heard on the issue of their paternity.

An adjudication of paternity impacts property interests as well. For example, an illegitimate child has rights to an adjudged father’s estate, 20 P.S. §§ 2107(c), 2514(8), 3538, 6114(5) and workmen’s compensation benefits, 77 P.S. § 562. See Lehigh Foundations, Inc. v. Workmen’s Compensation Appeal Board, 39 Pa.Commw. 416, 395 A.2d 576 (1978). In addition, the wages, salary or commissions of any person owing a duty of support may be attached in order to meet court-ordered support payments. Pa.R.C.P. 1910.22. See also, 48 P.S. § 167(b)(3) (For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined... if there is clear and convincing evidence that the man was the father of the child which may include a prior court determination of paternity).

In short, the familial, liberty and property interests at stake are significantly weighty that they alone may justify the appointment of counsel in paternity actions. We nonetheless evaluate the remaining factors set forth in Mathews v. Eldridge to determine whether they shift the due process balance away from awarding indigent defendants this important procedural protection.

Our next consideration is the risk that an uncounselled paternity proceeding will lead to an erroneous determination of parentage. In analyzing this second factor of the Mathews v. Eldridge test, the Supreme Court in Little considered the “not inconsiderable risk” of an erroneous adjudication of paternity which is faced by an indigent defendant denied free blood grouping tests. Acknowledging the “recognized capacity [of blood grouping tests] to definitively exclude a high percentage of falsely accused putative fathers,” the Court found that “access to [those tests] would help insure the correctness of paternity decisions...” Little, 452 U.S. at 14, 101 S.Ct. at 2209, 68 L.Ed.2d at 637. Pennsylvania conceded the importance of blood evidence in cases of disputed paternity by adopting the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S.A. § 6131 et seq. The question before us is whether merely granting access to those tests provides an adequate procedural safeguard against an incorrect determination of paternity. The District Court in Nordgren v. Mitchell, 524 F.Supp. at 245, considered this issue and found the statutorily-granted right of indigent defendants in Utah to free blood tests to be sufficient.

We cannot agree that the right to a free blood test is alone sufficient. Rather, as pointed out by the Supreme Court of Minnesota in Hepfel v. Bashaw, 279 N.W.2d 342, 347-348 (Minn.1979) (footnote omitted), “the importance of blood tests magnifies the necessity for the timely assistance of counsel, to ensure that the defendant is apprised of his right to request blood tests and to inform him of their significance.” We are also persuaded that the right to blood grouping tests granted indigent defendants in Little, and provided by statute in 42 Pa.C.S.A. § 6131 et seq., would indeed be emasculated were indigent defendants denied advocacy at a paternity hearing.

We, therefore, find that the second part of the Mathews v. Eldridge balancing test, coupled with the importance of the private interests affected, literally mandates the appointment of counsel in paternity proceedings.

Our resolution of this second factor in favor of indigents is further strengthened by the fact that, here in Pennsylvania, a complainant in a support action at which paternity is disputed shall, “upon the request of the court or a Commonwealth or local public welfare official” be represented by the district attorney. 42 Pa.C.S.A. § 6711(b). A paternity proceeding often becomes an adversary contest between a complainant, backed by the resources of a skilled attorney, and the uncounselled accused father. Under these circumstances, the contest is undeniably tilted in favor of the complainant. Since many indigent defendants may be illiterate and unfamiliar with courtroom procedure, that imbalance is exacerbated yet further. As pointed out by the Supreme Court of California in Salas v. Cortez, 24 Cal.3d 22, 81, 154 Cal.Rptr. 529, 535, 593 P.2d 226, 232 (1979), cert. denied, 444 U.S. 900, 100 S.Ct. 209, 62 L.Ed.2d 136 (1980) (footnote and citations omitted): The third-and final-factor of the Mathews v. Eldridge test is the government interest involved in a paternity action. A primary interest of the state, as the Lassiter court noted, is that an accurate and just decision be reached. Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160, 68 L.Ed.2d at 650. We have already concluded that the presence of counsel at the paternity proceeding helps insure the correctness of a paternity adjudication. Thus, not only the defendant’s interest but also the state’s interest is best served by a hearing at which a defendant accused of parentage is represented by an attorney. It is furthermore clear that the state’s future administrative burdens would be lessened since a correct determination of paternity increases the chance that the adjudged parent will comply with support obligations. Accordingly, while the state will incur the added expense of providing indigents with court-appointed counsel, this expense is outweighed by the salutary aspects of having counsel present at the paternity proceeding.

A judgment rendered in this manner is not only unfair, it is unreliable. Recognizing the complexity of these proceedings and the importance of their outcome to the state, the mother and the child, the Legislature has afforded the mother and child the assistance of counsel in prosecuting their claim. However, by intervening heavily on behalf of one side in what has traditionally been a private dispute, the state has skewed the outcome of the case. The chances that the significant consequences of fatherhood will be imposed on an innocent man obviously increase dramatically if, because he is unable to afford counsel, the defendant offers no defense. They increase still further if counsel for the plaintiff is a specialist in prosecuting such claims. . . . Unless the rights of indigent paternity defendants are protected, courts risk finding not the right man, but simply the poorest man to be the father of a child. If paternity is to be determined in an adversary proceeding at the behest of the state, surely the interests of all concerned demand that the defendant be able to defend fully and fairly. He cannot do so when his indigency prevents him from obtaining counsel.

At last we balance the three due process factors of Mathews v. Eldridge —the private interests of the defendant, the risk of an erroneous adjudication of paternity and the government’s interest—against the presumption that counsel is required for indigent defendants who face a potential loss of physical liberty as a result of an adjudication of their paternity. In so doing, we are left with the inescapable conclusion that the due process clause of the Fourteenth Amendment to the United States Constitution requires the appointment of counsel for indigent defendants in civil paternity actions in Pennsylvania. Due process is an elastic concept which must be adapted to fit the exigencies of the particular situation at hand. There is no situation of more monumental importance, or more worthy of due process protection, than the creation of a parent-child relationship. In recognition of this, the legislature has conferred legal representation on a complainant upon the request of the court, or a Commonwealth or local public welfare official. We find no reason why an indigent defendant, accused of parentage, should not also be provided with the assistance of experienced counsel.

Other jurisdictions presented with the same issue have likewise granted indigent defendants the right to appointed counsel in paternity suits. See Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977) (state due process); Salas v. Cortez, supra, (state and federal due process); Artibee v. Cheboygan Circuit Judge, 397 Mich. 54, 243 N.W.2d 248 (1976) (state due process); Hepfel v. Bashaw, supra (declined to decide due process and equal protection issue; right to counsel granted pursuant to court’s supervisory power); M. v. S., 169 N.J.Super. 209, 404 A.2d 653 (1979); In re Madeline G. v. David R., 95 Misc.2d 273, 407 N.Y.S.2d 414 (Family Ct. 1979) (state and federal due process); Cheryl B. v. Alfred W.D., 99 Misc.2d 2085, 418 N.Y.S.2d 271 (Fam.Ct.1979) (statutory right); State ex rel. Graves v. Daugherty, 266 S.E.2d 142 (W.Va. 1980) (state due process). In some of these cases, the right to counsel has been conditioned, upon the State playing an active role on behalf of the complainant, see, e.g., Reynolds v. Kimmons, supra, and Salas v. Cortez, supra, but other cases have not expressly made state involvement a prerequisite to granting the right of counsel. See, e.g. Artibee v. Cheboygan Circuit Judge, supra. The right to counsel has also been embraced by the National Conference of Commissioners in the Uniform Parentage Act § 19(a) (1973) and in several state statutes. See Hartung, The Right to Appointed Counsel in Paternity Actions, 19 Journal of Family Law 497, 502-503 n. 28 (1980-1981). See generally, 4 A.L.R. 4th 363-372.

For the foregoing reasons, we reverse the Order of the lower court and remand for a paternity hearing at which appellant is represented by appointed counsel. We do not retain jurisdiction.

      . Appellee’s complaint was purportedly filed under the Pennsylvania Civil Procedural Support Law, 62 P.S. § 2043.31 et seq. However, that Law was repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[1291], effective June 27, 1978, four months prior to the initiation of this support matter. The procedure governing the commencement of support actions in October, 1978 was set forth in 42 Pa.C. S.A. § 6704. Subsections (a) to (d) of that section, insofar as they apply to the practice and procedure in an action for support, have now been superseded. Pa.R.C.P. 1910.31(4), effective July 22, 1981.

      . Legal Services of Northeastern Pennsylvania, underscoring its limited involvement in this appeal, argues that it would be inappropriate for that federally funded organization to represent indigent defendants in state-initiated paternity actions.

      . Appellant’s indigency has not been challenged in this appeal.

      . Although appellee is represented by the Luzerne County District Attorney’s Office in her support action, that office has not participated in any of the proceedings below regarding the propriety of appointing counsel for appellant. In this appeal, appellee’s position, to the extent that any exists, is represented by the Luzerne County Public Defender.

      . Appellant’s brief does not raise a due process claim under the Pennsylvania Constitution but appears to rely only on the Federal Constitution. Therefore, our analysis of the right to counsel issue presented will focus on federal law only.

      . The history of paternity actions in Pennsylvania was recently summarized in Mansfield v. Lopez, 288 Pa.Super. 567, 573-574 n. 4, 432 A.2d 1016, 1019-1020 n. 4 (1981):
      To be sure, paternity actions were once governed by criminal law. See Wilful separation or nonsupport, 18 P.S. § 4731, Act of June 24, 1939, P.L. 872, § 731, Act of July 5, 1957, P.L. 481, § 1; and Neglect to support a bastard, 18 Pa.C.S.A. § 4323, Act of December 6, 1972, P.L. No. 1482, No. 334, § 1, eff. June 6, 1973. Under the Act of July 13, 1953, P.L. 431, as amended, Act of August 14, 1963, P.L. 872, 62 P.S. § 2043.31 et seq., a defendant contesting paternity had the choice of having the proceedings governed by civil law (preponderance of the evidence) or criminal law (beyond a reasonable doubt). See Commonwealth ex rel. Johnson v. Peake, 272 Pa.Super. 340, 415 A.2d 1228 (1979); Armstead v. Dandridge, 257 Pa.Super. 415, 390 A.2d 1305 (1978); Commonwealth ex rel. Yentzer v. Carpenter, 240 Pa.Super. 202, 362 A.2d 1101 (1976); Commonwealth ex rel. Lonesome v. Johnson, 231 Pa.Super. 335, 338, 331 A.2d 702, 704 (1974); Commonwealth v. Jacobs, 220 Pa.Super. 31, 279 A.2d 251 (1971). However, this choice was removed by the Civil Procedural Support Law now in effect, and under which the present action was brought: An action commenced under this act shall be a civil action in accordance with the Rules of Civil Procedure. Where the paternity of a child bom out of wedlock is disputed, the determination of paternity shall be by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil action and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence. 42 Pa.C.S.A. § 6704(f).
      That subsection of 42 Pa.C.S.A. § 6704 was later amended by the Act of October 5, 1980, P.L. 693, No. 142, § 207(a), effective in 60 days, to read as follows:
      Trial of paternity.—Where the paternity of a child bom out of wedlock is disputed, the determination of paternity shall be made by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil trial and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.
      42 Pa.C.S.A. § 6704(g).
      The new Rules of Civil Procedure relating to support actions, Pa.R. C.P. 1910.1-1910.31, have superseded those subsections of 42 Pa.C. S.A. § 6704 which apply to the practice and procedure in support actions. See footnote 1, supra. However, the Rules do not explicitly suspend 42 Pa.C.S.A. § 6704(g); hence that section relating to paternity trials remains viable and is merely supplemented by the procedure set forth in Pa.R.C.P. 1910.15:
      Rule 1910.15. Paternity
      (a) If the action seeks support for a child bom out of wedlock and the reputed father is named as defendant, the defendant may acknowledge paternity in a verified writing substantially in the form provided by Rule 1910.28(a). In that event the action shall proceed as in other actions for support.
      (b) If the reputed father does not execute an acknowledgment of paternity, the domestic relations officer shall terminate the conference. He shall advise the parties that there will be a trial without jury on the issue of paternity unless within ten days after the conference either party demands a trial by jury as provided by Rule 1910.28(b).

        Note: See Section 6131 of the Judicial Code, 42 Pa.C.S. § 6131 et seq., for the Uniform Act on Blood Tests to determine Paternity
      (c) All post-trial motions after a jury trial or exceptions after a trial by a judge without a jury shall be filed within ten days after verdict or discharge of the jury for inability to agree or within ten days after notice of the filing of the decision of the court and shall be limited to the issue of paternity.

        (d) (1) If the verdict or decision is for the defendant on the issue of paternity, unless a post-trial motion or exception is filed and sustained, a final order shall be entered, on praecipe or by the court, dismissing the action as to the child; or
      (2) If the verdict or decision is against the defendant on the issue of paternity, unless a post-trial motion or exception is filed and sustained, an interlocutory order shall be entered, on praecipe or by the court, finding paternity.
      (e) After an interlocutory order is entered finding that the defendant is the father of the child, the court shall either refer the case to a conference as in other actions for support or as expeditiously as possible hold a hearing on the issue of the amount of support and shall enter a final order of support.
      (f) The interlocutory order of paternity is not an appealable order but any issue of paternity raised in a post-trial motion or exception may be included in an appeal from a final order of support.
      No inconsistency appears to exist between the Statute and the Rules.

      . The Court in Lassiter acknowledged that legal representation may be necessary where petitions to terminate parental rights are based on alleged criminal activity. Lassiter, 452 U.S. at 27 n. 3, 101 S.Ct. at 2160 n. 3, 68 L.Ed.2d at 650 n. 3. In concluding that due process does not always require the appointment of counsel, the Court considered that the petition to terminate Mrs. Lassiter’s parental rights contained no allegations upon which criminal charges could be based.
      Although unrelated to the disposition of the instant appeal, we note that the Pennsylvania Supreme Court in In re Adoption of R.I., 455 Pa. 29, 312 A.2d 601 (1973) held that an indigent natural mother whose parental rights were being terminated was entitled to appointed counsel. Although the court based its opinion on the due process clause, and cited federal law, it is unclear whether its final disposition was on state or federal grounds. Moreover, the court did not condition the right to counsel on the existence of pending criminal charges against the parent whose rights were sought to be terminated. Since our state courts, interpreting the state constitution, have the right to increase the substantive and procedural mínimums set forth in federal decisional law, Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979); Commonwealth v. Bradshaw, 290 Pa.Super. 162, 434 A.2d 181 (1981), the continued validity of In re Adoption of R.I. in light of Lassiter is uncertain.

      . Pa.R.C.P. 1910.15(f) provides that an order of paternity is interlocutory, and hence nonappealable, and any issue of paternity may not be raised unless properly preserved in a post-trial motion or exception and until a final support order has been entered. Thus, while an adjudged father can seek review of a paternity adjudication, he cannot relitigate that issue subsequent to the paternity hearing.

      . As discussed in footnotes 1 and 6, supra, the new support rules contained in Pa.R.C.P. 1910.1-1910.31 have superseded the procedure under 42 Pa.C.S.A. §§ 6701-6711 relating to support proceedings. However, 42 Pa.C.S.A. § 6711, regarding the district attorney’s (a) responsibility to enforce a duty of support, cooperate in the presentation of complaints or in any proceeding designed to obtain compliance with a court order, and (b) representation of a complainant in a support proceeding, was not explicitly repealed by the new rules. It, therefore, remains part of the statutory law of this jurisdiction. In the instant case, Cleoria Corra is represented by the Luzerne County District Attorney’s Office in her support action against appellant.

      . Of course, where a complainant in a support action is “a public body or public or private agency having an interest in the care, maintenance, or assistance of a person to whom a duty of support is owing,” Pa.R.C.P. 1910.3(3), the state’s active involvement and interest in resolving paternity matters is even more acute. Indeed, the State is required, as a condition to the receipt of federal financial aid for local welfare programs, to create a program for locating absent parents, establishing paternity and obtaining child support. 42 U.S. C.A. §§ 652(a)(1), 654(4)(A), 654(6).

      . Moreover, we do not believe that fundamental fairness may be maintained by determining whether an indigent is entitled to appointed counsel on a case-by-case basis, subject to appellate review, as the Lassiter Court held with respect to parental termination proceedings. It is often difficult to assess the complexities which might arise in a given paternity trial before that trial is held; thus, a case-by-case approach would necessarily require an after-the-fact evaluation of the record to determine whether appointed counsel could have affected the result reached in a paternity proceeding. The Court of Appeals in Oregon, although adopting this hindsight approach, acknowledged its obvious flaw: “There is some logic to defendant’s suggestion that it is circular to look to the record to determine whether counsel could have affected the result, when one of the principle missions of counsel in any ligigation is to develop the record.” State ex rel. Adult Services Division v. Stoutt, 644 P.2d at 1137. We agree and, for this reason, find that fundamental fairness is best ensured by providing indigent defendants with appointed counsel before the commencement of a paternity proceeding. Cf. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (due process requires “clear and convincing evidence” standard of proof in parental rights termination proceeding; distinguishing Lassiter, the Court declined to adopt a case-by-case determination of the proper standard of proof in a given proceeding, finding that retrospective review cannot preserve fundamental fairness).

      . We are cognizant of, but specifically decline to address, the lurking equal protection problem presented where one party may be provided with counsel by the State yet the opposing party denied the same benefit.

      . But see Sheppard v. Mack, supra, (no deprivation of liberty in civil paternity action): State v. Walker, 87 Wash.2d 443, 553 P.2d 1093 (1976) (Sixth Amendment analysis).

      . Although we find that appellant is entitled to counsel, and remand this case for that purpose, we will not reach the question as to whether the appointed counsel need be from the Public Defender’s Office. The Common Pleas Court, having denied appellant the right to counsel altogether, did not consider this question. We believe, however, that that determination should first be made by the lower court. Moreover, that Court is more privy than we to local considerations, i.e. budgetary constraints, which may impact the choice of an attorney for appellant.


author: McEWEN, Judge:

text:
    451 A.2d 489
    COMMONWEALTH of Pennsylvania v. Joseph BOSSICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1982.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.

      William R. Lee, Scranton, for appellant.
    Ernest D. Preate, Jr., District Attorney, Lackawanna, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   McEWEN, Judge:

We here consider an appeal from the judgment of sentence imposed after appellant was convicted by a jury of criminal conspiracy. The jury found that appellant, who at the time of the crime was an inmate at the Lackawanna County Prison, had conspired with other inmates to effect the death by hanging of another prisoner, Clifford Doolittle. We affirm.

The evidence at trial established that on November 30, 1978, appellant was committed to the Lackawanna County Prison to serve a sentence for a criminal attempt charge. Another inmate at the prison, Thaddeus Pitta, testified that several times in the weeks preceding the death of Clifford Doolittle, appellant stated: “We have to get a body. We need a body here in this jail. We got to hang somebody and blame it bn a snitch.” Douglas Palmiter, a fellow inmate, also testified that on numerous occasions prior to the death of Doolittle, appellant stated he wanted to find a stiff and get that stiff hung. Palmiter also testified that on the night of February 4, 1979, he and appellant met with fellow inmates Martin, Karabin, Benjamin and Pitta in the cell of Martin. Clifford Doolittle, who was awaiting trial for murder, was introduced to the group. A discussion ensued concerning the possible results of the forthcoming trial of Doolittle, during which the inmates explained to Doolittle the “old Farview trick”—faking a suicide so as to be sent to Farview, a facility for the criminally insane, and thereby avoid being prosecuted for murder. After Doolittle left the cell, appellant suggested that the inmates hold a “mock trial” for Doolittle on the charges confronting him.

The next night, Monday, February 5,1979, Bossick, Martin and Karabin informed Doolittle that his trial would be held in Bossick’s cell. At the mock trial, Doolittle was questioned about his crime and at the conclusion of the trial Karabin pointed his hand at Doolittle and stated, “I sentence you to death.” Following the mock trial, Martin stated that Kara-bin and Bossick were scaring Doolittle into the “Farview trick” and that “Clifford Doolittle thinks we are going to cut him down when we get him in. We’re not going to cut him down. We’re going to let the son-of-a-bitch hang.”

The next morning Karabin, Martin and appellant conferred with Doolittle. Palmiter overheard them telling Doolittle, “to go down to his cell and that they were going to fake the hanging.” According to Palmiter, Doolittle entered his cell and Karabin and Martin followed him into the cell and remained in the cell for approximately ten minutes. Martin and Karabin then went to Martin’s cell before returning in approximately fifteen minutes to Doolittle’s cell. Martin opened the door to Doolittle’s cell, looked in, then closed the cell door, looked at appellant who was standing on the second tier and nodded at appellant before returning to his cell. A prison guard testified that Martin notified him of the hanging and when the guard went to Doolittle’s cell, Doolittle was already dead by reason of the hanging.

Palmiter testified that on the night of the murder he discussed the hanging with appellant, Karabin and Martin and that Karabin stated that while he and Martin were in Doolittle’s cell, they tied up a sheet and got Doolittle in position. Karabin then held Doolittle by the heels until just before he passed out, at which time Karabin dropped him and they let him hang.

The appellant presents the following questions for review: Whether the evidence was insufficient to convict the defendant of criminal conspiracy?
Whether defendant’s proposed voir dire questions were improperly excluded?
Whether the lower court erred in evidentiary rulings warranting a new trial?
Whether defense counsel was ineffective necessitating a new trial since prior criminal convictions of defendant and defense witnesses not involving crimes of crimen falsi were testified to?
Whether defendant’s after discovered evidence warrants a new trial or in the alternative a remand to the lower court to complete the record?
Whether a new trial should have been granted because the district attorney in his closing argument asked the jury to draw an unwarranted and improper inference from the evidence?
Whether the court erred in denying counsel leave to withdraw, warranting a new trial?
Whether the court erred in admitting into evidence defendant’s statements allegedly made prior to the formation of the conspiracy?
Whether the court erred in allowing testimony that a Commonwealth witness was assaulted by defendant?

We have carefully reviewed the briefs of the parties as well as the entire record and conclude that the distinguished Lackawanna County Common Pleas Court Judge James M. Munley has so thoroughly addressed the contentions that we are able to limit our discussion to but a few of the issues presented.

Appellant first argues that the evidence was insufficient to convict him of criminal conspiracy. Specifically, appellant contends that the evidence does not prove that he agreed to participate in the ruse that was to culminate in the hanging of Clifford Doolittle. Rather, appellant argues that at most the evidence proves that he participated in a mock trial of the decedent and that if there was a conspiracy among inmates of the prison, appellant was not part of that conspiracy.

The law is clear that the crime of conspiracy is established when the prosecution proves the involvement of the appellant in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy. 18 Pa.C.S.A. § 903. The evidence needed to prove a conspiracy must show more than a mere association, but a “conspiracy may be inferentially established by showing the relation, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Commonwealth v. Lewis, 276 Pa.Super. 451, 457, 419 A.2d 544, 547 (1980); citing Commonwealth v. Henderson, 249 Pa.Super. 472, 483, 378 A.2d 393, 398 (1977) and Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489, 492 (1958).

The evidence is more than sufficient to show the involvement of the appellant in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy to commit murder.

Appellant further asserts that his lawyer, who represented appellant both at the trial and on this appeal, was ineffective. Defense counsel, who first asserted his own ineffectiveness in the post-trial motions, argues that he was ineffective when he sought to inform the jury why appellant and other defense witnesses were confined and thereby during direct examination elicited the following information concerning their criminal convictions:

George Wayman: parole violation, drug charges, larceny, assault and robbery.
Thomas Padden: parole violation and burglary.
Anthony Mulea: gun charge, receipt of stolen property, burglary and car theft.
Robert Lombardi: robbery and manslaughter.
Dennis Stonestreet: armed robbery and escape.
Gilbert Dominquez: felonious restraint.
Joseph Bossick: parole violation, criminal attempt, criminal trespass and burglary.

It is clearly established that any judicial study of the claim of ineffectiveness begins with a determination of whether the claim is of arguable merit. If the underlying claim is of arguable merit, we must then determine whether the strategy chosen by the lawyer had some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980); Commonwealth v. Pittman, 295 Pa.Super. 234, 441 A.2d 436 (1982).

When the claim of ineffectiveness of counsel is expressed by appellate counsel who also represented the defendant at trial, our appellate courts: (1) return the case to the Common Pleas Court for a new trial whenever it is apparent that the ineffectiveness composes reversible error; or (2) remand the case to the Common Pleas Court for appointment of new counsel and a hearing whenever the reversible error is not apparent. The rationale for such remand is a reservation that arises concerning the zeal that counsel is able to supply to an argument that he was ineffective. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Surely, however, sound practice does not require a remand to the Common Pleas Court for an appointment of counsel and further hearing in those cases where the most intense display of zeal and fervor by the most persuasive of counsel cannot project ineffectiveness of arguable merit; surely, sound practice requires remand for appointment of counsel and further hearing only in those cases where the claimed ineffectiveness has arguable merit. Just as appellate study of a record in some cases may permit only a conclusion that the error is overwhelming and thereby reversible, so appellate study in other cases may well only permit of a conclusion that the claim of error lacks merit under any circumstances.

We, therefore, rule that where it is apparent to the appellate court that there is no arguable merit to a claim of ineffectiveness by appellate counsel who also served as trial counsel, the appellate court need not remand to the Common Pleas Court but may provide for final dismissal of the appeal.

In the instant case the ineffectiveness—which is not only claimed but acknowledged—has no arguable merit. Counsel asserts that he erred in his decision to elicit during the examination of appellant and other defense witnesses testimony concerning their criminal records. Since the county prison was the situs where the conspiracy was conceived, nurtured and implemented by inmates imprisoned there, the jurors necessarily realized appellant and his witnesses had been implicated in criminal activity. Counsel cannot be considered to have been ineffective for soliciting testimony concerning the nature of their criminal behavior; rather, under the circumstances, counsel would have been deemed to have been ineffective had he refrained from presenting such information since it would have been tactically unwise for counsel to have left to the District Attorney the role of eliciting such information. We are left to conclude:

No amount of zeal or skill of persuasion could convince us that trial counsel has been ineffective in the manner argued, so that, therefore, there is no arguable merit to the claimed ineffectiveness.
Even if there had been arguable merit, the course actually pursued at trial by counsel in this case would have been a recommended tactic, however solemnly counsel may now pronounce his mea culpa.

While the conclusion we reach on this issue does not preclude appellant from the initiation through new counsel of proceedings under the Post Conviction Hearing Act, it does eliminate this particular claim of ineffectiveness in any such proceeding.

Appellant next argues that the trial judge made “numerous errors” when ruling upon evidentiary matters and that, therefore, appellant is entitled to a new trial. The brief of appellant merely states that the “defendant asserts numerous errors by the court in rulings upon evidentiary matters” and simply refers to sixty-one pages of the trial transcript where alleged errors appear. Appellant does not designate the ruling he questions, let alone the nature of the error.

We rely for rejection of this assertion upon the statement of this court in Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982): “We decline to become appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.” Id., 299 Pa.Superior Ct. at 67, 445 A.2d at 150. We are, in fact, unable to address the propriety of these rulings. This assertion is denied.

Appellant next argues that he is entitled to a new trial on the basis of evidence that was discovered after the trial. Although appellant contends before this Court that six specific evidentiary matters were discovered after the trial and that this evidence meets the requirements for the grant of a new trial, the trial court has only been able to rule on three of these contentions. The remaining three contentions were first raised in an amended additional motion for new trial on the basis of after-discovered evidence and were not ruled upon by the trial judge because the appellant had already filed his appeal to this Court. Thus, the three after-discovered issues that were not ruled upon by the trial court are not properly before us for review. The trial judge properly rejected the initial three such contentions.

Appellant further asserts that certain of his proposed voir dire questions were improperly excluded. Although appellant states the numbers of the proposed questions that the trial judge would not allow defense counsel to ask, the content of those questions does not appear in the record nor does appellant explain the content of those questions.

The record reflects that the trial judge conducted his own voir dire examination and that the defense counsel was permitted to extensively question the proposed jurors. The scope of voir dire examination rests in the sound discretion of the trial judge and the decision of the trial judge will not be reversed in the absence of palpable error. Commonwealth v. Holland, 298 Pa.Super. 289, 444 A.2d 1179 (1982); Commonwealth v. Layman, 290 Pa.Super. 244, 434 A.2d 735 (1981). The appellant in this case has not pointed to any specific omission by the trial judge which would entitle the appellant to relief and, in light of the extensive questioning by the trial judge, prosecutor and the defense attorney, we decide that appellant has not alleged any error in the voir dire examination which would entitle him to relief.

The remaining questions have been thoroughly examined by the able trial judge and we agree there is no merit to those contentions.

Judgment of sentence affirmed.

      . Such insight is a welcome display of discernment. It would be further realistic to accept the proposition that while a claim by trial counsel of his own ineffectiveness can be quite a sincere plea by trial counsel whose fervor has been replaced by remorse, it can also be a contrived assertion by counsel motivated by improper ends.

      . So clearly also, must there remain available to an appellate court the device of remand to the trial court for the appointment of new counsel so as to enable a determination in that court of whether there is substance to a claim or acknowledgement of ineffectiveness.

      . It is to be noted that our eminent colleague, Judge Wickersham, by his dissent in Commonwealth v. Viall, 278 Pa.Super. 613, 420 A.2d 710 (1980) evinced an inclination to accept the principle here announced. There, the appellate representative of the public defender staff claimed trial ineffectiveness of another member of that same staff. Judge Wickersham stated in his dissent: “the failure to object to the alleged hearsay testimony was not error on the part of trial counsel as the testimony added virtually nothing to the case. To remand under these circumstances is to further waste judicial time and energy. I would affirm the judgment of sentence.” Id., 278 Pa.Superior Ct. at 620, 420 A.2d at 713.

      . The post-trial motions filed by the appellant list twenty-nine alleged errors committed by the trial judge on evidentiary questions.

      . The after-discovered evidence which the trial court did consider were pictures of the jail cell of the victim and two different statements given after trial which reflected on the credibility of the Commonwealth witnesses.

      . Pennsylvania Rule of Appellate Procedure 1701.


author: CIRILLO, Judge:

text:
    451 A.2d 494
    COMMONWEALTH of Pennsylvania, v. Bruce NORRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1982.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.

      William James Perrone, Norristown, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

On October 31, 1975, appellant Bruce Norris was found guilty in a jury trial of second degree murder, robbery, criminal conspiracy, and possession of a prohibited offensive weapon. Following the imposition of sentence on January 19, 1976, appellant appealed his convictions to the Pennsylvania Supreme Court, pursuant to the Act of 1970, July 31, P.L. 673, No. 223, § 202; 17 P.S. § 211.202(1). The judgment of sentence was affirmed per curiam on December 1, 1977. Commonwealth v. Norris, 475 Pa. 317, 380 A.2d 372 (1977). Subsequently, appellant filed a pro se petition for post-conviction relief. The petition was denied on September 23, 1981, and this appeal followed.

Appellant alleges that he was deprived of effective assistance of trial, appellate and PCHA counsel. Appellant contends ineffectiveness of various counsel as follows: (1) appellate counsel’s failure to question the admissibility of appellant’s statement as fruit of an illegal arrest; (2) failure of PCHA counsel to raise an ineffectiveness claim attacking appellate counsel’s omission in failing to appeal admissibility of appellant’s statement; (3) failure of trial counsel to make an adequate pre-trial investigation of Commonwealth witness Atlee Moore; (4) failure of trial counsel to object and request a mistrial because of a statement made by the prosecutor in closing argument; (5) failure of trial counsel to object and request a mistrial for improper testimony of Commonwealth witness Israel Wright; and (6) failure of trial counsel to properly and effectively cross-examine Commonwealth witness Moore concerning his prior criminal history. We conclude appellant’s assignments of error are without merit, and therefore affirm the order dismissing appellant’s PCHA petition.

The test to be employed in determining whether counsel was effective was set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967):

. . . our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record, (emphasis in original).

There is a presumption in the law that counsel is effective. Commonwealth v. Larry Miller, 494 Pa. 229, 431 A.2d 233 (1981). The primary concern is whether the accused’s rights have been adequately protected. Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359 (1976); Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973); Commonwealth ex rel. Washington v. Maroney, supra. Counsel cannot be deemed ineffective for failing to advance frivolous claims. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980).

Our standard of review in determining whether counsel has rendered ineffective assistance necessitates an initial inquiry into whether the underlying claim is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the underlying claim is found to be of arguable merit, only then may we proceed to determine whether there was some reasonable basis for counsel’s actions designed to protect his client’s interests. Hubbard, supra.

The nexus of appellant’s first two contentions turns upon a confession given, by him, to the police. In the present case, appellant waived his Miranda rights and confessed to the charges in question. At the pre-trial suppression hearing, the issue of the legality of arrest was raised by counsel in an attempt to exclude the confession from evidence. This motion was denied. Appellate counsel did not raise the issue in post-trial motions or on direct appeal.

Appellant maintains that his confession should have been suppressed as the fruit of an illegal arrest. Appellant sets forth two bases for finding an illegal arrest—failure to obtain a warrant, and lack of probable cause.

Initially, appellant attacks the validity of the arrest because it was made without a warrant. He relies on the Pennsylvania Supreme Court’s landmark decision of Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), which held a warrantless arrest in one’s home, absent exigent circumstances, violative of the Fourth Amendment protection against unreasonable search and seizure. Applying the rationale of Williams, appellant asserts his arrest was illegal, and therefore his statement to the police resulting from that arrest should be considered tainted evidence and inadmissible.

In Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), the Pennsylvania Supreme Court held that Williams would not be retroactive, but would only apply to arrests made subsequent to the date of the Williams decision, November 18, 1978. In the case at bar, appellant was arrested on June 8, 1975, over three years before Williams was handed down. In light of the Miller holding, clearly the appellant cannot seek the protections afforded by the Williams decision.

Furthermore, appellant speculates that had appellate counsel raised the issue of his illegal arrest on direct appeal, his case would have been the spark that ignited the Pennsylvania Supreme Court’s landmark holding in Williams. This is mere conjecture and counsel cannot be held ineffective for failing to take an appeal of an issue which rested on a prediction of a future change in the law. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

We note that since Williams was not to apply retroactively, we are bound to follow the mandate of Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978), which held that absent exigent circumstances, police must have probable cause to enter suspect’s home to effect a warrantless arrest. Appellant further contends that his arrest was illegal because the police lacked probable cause. In the instant case, appellant was implicated by a co-defendant, and the arresting officer was dispatched by an officer who had personal knowledge and probable cause to arrest. These facts have been held to supply the requisite probable cause for a warrantless arrest. Commonwealth v. Stickle, 484 Pa. 89, 398 A.2d 957 (1979); Commonwealth v. Kenny, 449 Pa. 562, 297 A.2d 794 (1972).

Thus, we find that appellant’s warrantless arrest was based upon probable cause and, therefore, valid. Since appellant’s arrest was valid, his confession was not tainted and was admissible evidence. Appellant’s first contention, concerning the legality of his arrest is meritless, and appellate and PCHA counsel cannot be found ineffective for failing to pursue it. Commonwealth v. Weathers, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978).

The remaining assertions of error deal with the alleged ineffectiveness of trial counsel. Appellant’s third contention is that trial counsel failed to make an adequate pre-trial investigation of Commonwealth witness Atlee Moore. Trial counsel failed to obtain a copy of a statement made by Moore to a private detective, which was inconsistent with trial testimony given by Moore. Appellant claims the failure of counsel to obtain and use that statement to impeach the witness rendered him ineffective. This issue has already been finally litigated and, therefore, we cannot consider it in this appeal. See Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981); Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980).

Appellant’s fourth contention is that trial counsel was ineffective for failing to object and request a mistrial because of a statement made by the prosecutor in closing argument. In his closing speech to the jury, the prosecutor stated: “Mr. Moore, of course, has been around for a while and so has the defendant, you can see that.” Appellant argues that this statement implies that both the witness, Atlee Moore, and he had prior criminal records.

In Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976), the Supreme Court noted that not every unwise or unwarranted remark made by counsel requires the award of a new trial. As the court further stated in Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973):

A new trial is required when the remark is prejudicial, that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.

The effect of such a remark must be evaluated in the context in which it occurred. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). Before a new trial is granted, the language must be such that its,

[Ujnavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence and render a true verdict. Commonwealth v. Simon, 432 Pa. 386, 394, 298 A.2d 289, 292 (1968) cited in Commonwealth v. Loar, 264 Pa.Super. 398, 406, 399 A.2d 1110 at 1114 (1979).

Looking at the prosecutor’s statement, as a whole, we conclude that the statement did not either expressly or by reasonable implication convey the fact that appellant had a prior criminal record. Cf., Commonwealth v. Bowermaster, 297 Pa.Super. 444, 444 A.2d 115 (1982) (Court held that the controlling question was whether or not a juror could reasonably infer from a witness’ testimony that the accused had a prior criminal record. Only if such an inference is created would a new trial be necessary). The brief remark was made by the prosecutor in an extended discussion of the credibility of Commonwealth witness Moore, and did not rise to the level of depriving appellant of a fair and impartial trial. We do not believe the record illustrates that prejudice resulted and, therefore, we find no grounds for a mistrial. See Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979); Commonwealth v. Palmer, 463 Pa. 26, 342 A.2d 387 (1975). Since we find no arguable merit for a motion for a mistrial, trial counsel was not ineffective for failing to object to the prosecutor’s comment. See Commonwealth v. Hubbard, supra.

Appellant’s fifth contention is that trial counsel was ineffective for failing to object and request a mistrial for the alleged improper testimony of Commonwealth witness Israel Wright. Specifically, appellant argues- that the testimony included objectionable references to the fact that the victim had a family and was trying to better himself with a job in a new field. While, admittedly, such comments can be prejudicial and objected to, we conclude that the record reveals that trial counsel’s failure to object did not constitute ineffectiveness. First, an immediate objection to any reference of the victim’s family and job might have alienated the jury. Also, we note that at the same time Wright revealed that the deceased had a family and was looking for a job, he mentioned that the deceased had recently been released from prison. Rather than object immediately, trial counsel waited and covered the particular reference made by the witness in his closing argument.

Finally, appellant contends that trial counsel was ineffective in failing to properly and effectively cross-examine Commonwealth witness Atlee Moore concerning his prior criminal history.

It is well-settled law that the examination and cross-examination of witnesses and the determination as to when to interpose objections are matters clearly within the province of trial counsel. Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978). Reviewing the record, we conclude that counsel did indeed effectively cross-examine the witness. He not only impeached the witness with inconsistencies of a prior statement given to police, but he also established that the witness was testifying in exchange for leniency with respect to charges lodged against him stemming from the same criminal episode.

We conclude that appellant was represented competently and effectively by trial, appellate and PCHA counsel. Therefore, we affirm the order denying post-conviction relief.

Order affirmed.

      . Act of 1972, December 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 2502.

      . Id. at 18 Pa.C.S.A. § 3701.

      . Id. at 18 Pa.C.S.A. § 903.

      . Id. at 18 Pa.C.S.A. § 908.

      . This section was repealed and replaced by Act of 1976, July 9, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 722.

      . We note that appellant was represented at trial and appeal by Stanley P. Stern, Esquire; at the PCHA hearing by Henry Wessel, Esquire; and on this appeal by William J. Perrone, Esquire.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1, et seq. (Supp. 1965-1980).

      . Although all of appellant’s allegations of ineffectiveness of trial counsel appear in appellant’s PCHA petition, testimony at the PCHA hearing was only offered on the issue of trial counsel’s failure to make a proper pre-trial investigation. In regards to the remaining contentions of ineffectiveness of trial counsel, no testimony was offered, arguments given, nor other evidence presented at the PCHA hearing in support of these allegations. In the PCHA proceeding, appellant had the burden of proving grounds for relief. Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981); Commonwealth v. Stokes, 294 Pa. Super. 529, 440 A.2d 591 (1982). The failure to present testimony or other evidence on the issue at an evidentiary hearing constitutes an abandonment of such grounds as a basis for relief. Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981). As appellant has failed to meet his burden, we must affirm the decisions below on each of these issues. However, in the interests of justice, we will consider each issue on the merits.

      . At the conclusion of trial, trial counsel discovered the statement. He then applied for relief in his post-trial motions, specifically using the after-discovered claim. Relief was denied. An appeal was then made to the Pennsylvania Supreme Court. In a Per Curiam Opinion, the court found the after-discovered claim to be without merit.

      . Appellant’s main contention is that counsel was ineffective in failing to lay a proper foundation and introduce witness Moore’s prior criminal record. However, appellant fails to mention in his petition below or in his brief on appeal what that record contains. He cites no specific crimes Moore had been convicted of which could have been utilized by counsel in cross-examination. Thus, appellant’s contention is meritless.