author: ROWLEY, Judge:

text:
    447 A.2d 292
    Nicholas MARTINO v. TRANSPORT WORKERS UNION OF PHILADELPHIA-LOCAL 234 and Transport Workers Union of America-AFL-CIO and Southeastern Pennsylvania Transportation Authority. Appeal of UNION OF PHILADELPHIA-LOCAL 234 and Transport Workers Union of America-AFL-CIO. Nicholas MARTINO v. TRANSPORT WORKERS UNION OF PHILADELPHIA-LOCAL 234 and Transport Workers Union of America-AFL-CIO and Southeastern Pennsylvania Transportation Authority. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Feb. 25, 1982.
    Filed June 25, 1982.
    Petition for Allowance of Appeal Granted Oct. 8, 1982.

      Herbert K. Fisher, Philadelphia, for Union of Phila.-Local 234 and Transport Workers Union of America-AFL-CIO, appellants (at No. 2457) and appellees (at No. 2459).
    Marcus Manoff, Philadelphia, for Southeastern PA Transp. Authority, appellant (at No. 2459) and appellee (at No. 2457).
    Harris T. Bock, Philadelphia, for Martino, appellee.
    Before CERCONE, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.
   ROWLEY, Judge:

These consolidated appeals present the question whether the courts of common pleas have “subject matter jurisdiction” to hear and decide an action in equity instituted by a former employee against his former public employer and his union seeking relief (1) against the employer for allegedly discharging him in violation of a collective bargaining agreement between the employer and the union and, (2) against the union for an alleged breach of its duty of fair representation during the grievance process under the collective bargaining agreement. The trial court accepted jurisdiction and the union and employer appealed. We hold that the courts of common pleas have such jurisdiction and affirm.

I.

Prior to August 4, 1977 appellee, Nicholas Martino, was employed by the appellant, Southeastern Pennsylvania Transportation Authority (SEPTA) as a trainman. SEPTA provides public transportation in the greater Philadelphia area and is an instrumentality and agency of the Commonwealth of Pennsylvania. Appellee was also a member in good standing of appellants, Transport Worker’s Union of Philadelphia, Local 234 (Local 234) and Transport Workers Union of America, AFL-CIO (International) [Local 234 and the International are hereinafter collectively referred to as the unions]. The unions were the exclusive representative of SEPTA’s employees for the purposes of collective bargaining. A collective bargaining agreement (the agreement) was in effect between the unions and SEPTA at all times material to this case.

On August 4, 1977, appellee was discharged by SEPTA on the ground that he was guilty of having made “improper fare collections”. The agreement between the unions and SEPTA provided a detailed procedure for the resolution of grievances by first, second and third level grievance hearings and binding arbitration in the event the union appealed the decision made at the third level grievance hearing. Appellee’s grievance concerning his discharge was processed through the first three grievance level hearings and he was represented at each hearing by a union representative. At each hearing the grievance was resolved adversely to appellee. The unions then declined to pursue the fourth step arbitration hearing.

Subsequently, on February 21, 1978, appellee filed a complaint in equity against SEPTA and the unions. In the first count, against the unions, appellee alleged that they had breached their fiduciary duty of good faith representation to him during the grievance hearings and by their refusal to seek an arbitration hearing. He requested that the court direct the unions to initiate the arbitration process “nunc pro tunc” and to pay him money damages resulting from their alleged breach. In count two of the complaint, against SEPTA, appellee claimed that he had been unlawfully and improperly discharged by SEPTA and asked that it be directed to reinstate him to his former position and to pay him compensatory damages resulting from his alleged unlawful discharge.

The appellants filed preliminary objections to the complaint. The preliminary objection filed by the unions was in the nature of a petition raising a question of jurisdiction pursuant to Pa.R.C.P. 1017(b)(1) claiming that the appellee had “failed to . . . exhaust his internal remedies within the union” thereby depriving the trial court of jurisdiction over the subject matter of appellee’s suit. SEPTA filed four preliminary objections, two of them being in the nature of a petition raising a question of jurisdiction under Pa.R.C.P. 1017(b)(1). SEPTA claimed first that the collective bargaining agreement provided “a complete and exclusive remedy for” appellee’s claim thereby depriving the trial court of jurisdiction and further claiming that exclusive jurisdiction of appellee’s complaint had been vested in the Pennsylvania Labor Relations Board (PLRB) by the Legislature when it enacted the Public Employee Relations Act (PERA). Similarly, SEPTA filed an objection under Pa.R.C.P. 1509(b) claiming that appellee had failed to exercise or exhaust an adequate statutory remedy provided by the PERA. In addition to SEPTA’s challenge to the jurisdiction of the trial court, it filed a preliminary objection in the nature of a demurrer, pursuant to Pa.R.C.P. 1017(b)(4).

The trial court, in an order entered September 19, 1978, dismissed all of the preliminary objections filed by SEPTA and the unions and directed the defendants to file answers to the complaint. The coukt concluded that the unions and SEPTA had “not met the burden of establishing that” the trial court lacked jurisdiction. In reaching this conclusion, the court considered the opinions of the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), and the Supreme Court of Pennsylvania in Falsetti v. Local U. No. 2026, UMWA, 400 Pa. 145, 161 A.2d 882 (1960). The trial court concluded that the decisions in those two cases had reached “diametrically opposite conclusions”. For that reason, the court determined that the issues raised by the preliminary objections were not “clear and free from doubt” and that under such circumstances the objections should be overruled.

The unions filed an appeal at No. 2457 October Term, 1978 in this court from the order of the trial court dismissing their preliminary objection. SEPTA filed an appeal at No. 2459 October Term 1978 from the order dismissing its preliminary objections. The appeals were consolidated for argument before the Court en banc on February 25, 1982. At oral argument counsel for the unions advised the court that the unions no longer desired to pursue their appeal and, on the contrary, supported the argument made on behalf of appellee. Therefore, the appeal filed by the unions will be dismissed and we will consider in this opinion only the arguments raised by SEPTA.

SEPTA argues on appeal that (1) the trial court lacks subject matter jurisdiction to consider appellee’s complaint, (2) that the appellee failed to exercise or exhaust his statutory remedy under the PERA and (3) the complaint fails to state a cause of action.

II.

At the outset, it is appropriate to consider the jurisdiction of this court to entertain SEPTA’s appeal and the scope of review to be exercised. Ordinarily an order dismissing preliminary objections to a complaint is interlocutory and therefore, not appealable. Newkirk v. Phila. Sch. Dist., 437 Pa. 114, 261 A.2d 305 (1970); Village 2 At New Hope, Inc., Appeals, 429 Pa. 626, 241 A.2d 81 (1968); Phila. v. Wm. Penn Bus. Inst., 423 Pa. 490, 223 A.2d 850 (1966); 2401 Pa. Ave. v. Southland, 236 Pa.Super. 102, 344 A.2d 582 (1975). However, an exception to the general rule existed under the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, repealed, Act of April 28, 1978, P.L. 202, § 2(a) (effective June 27, 1980). Since the Act of 1925 was still in effect on the dates that the appeals of SEPTA and the unions were filed, its provisions are controlling in this case.

The act of 1925 provided that whenever a question of jurisdiction over the cause of action was raised in the trial court, the decision of that court “may be appealed to the Supreme Court or the Superior Court, as in cases of final judgments” (Emphasis supplied). Therefore, the order of the trial court disposing of SEPTA’s preliminary objections under Pa.R.C.P. 1017(b)(1) and 1509(b) challenging the subject matter jurisdiction of the trial court, is appealable as a final order on that issue.

Although an appeal is authorized under the Act of 1925 in this case, our scope of review is exceedingly limited and narrow. The sole issue which the appellate court may consider, in an appeal under the Act of 1925, is the accuracy of the trial court’s decision on the question of jurisdiction. Gardner v. Allegheny Co., 382 Pa. 88, 114 A.2d 491 (1955). As the court said in Welser v. Ealer, 317 Pa. 182, 184, 176 A. 429, 430 (1935) “No other matters are open for inquiry in” an appeal pursuant to the Act of 1925 from a preliminary determination of the trial court’s subject matter jurisdiction. In Wechsler v. Newman, 256 Pa.Super. 81, 87, 389 A.2d 611, 614 (1978) this Court, in discussing § 1 of the Act of 1925 said: “Under this section, our scope of review is limited to a single question: did the lower court properly determine whether it had jurisdiction?” See also Sauers v. Pancoast Personnel, Inc., 294 Pa.Super. 306, 310, 439 A.2d 1214, 1216 (1982) [dissenting opinion by Shertz, J.].

Therefore, the only issue which we have jurisdiction to consider at this time is the propriety of that portion of the trial court’s order dealing with SEPTA’s preliminary objections under Pa.R.C.P. 1017(b)(1) and 1509(b) challenging the trial court’s subject matter jurisdiction. It’s ruling on the other preliminary objection filed by SEPTA is not properly before us. We may not consider or pass upon the propriety of the trial court’s ruling insofar as it concerns SEPTA’s preliminary objection in the nature of a demurrer. The principles applicable to the nature of our review were forcefully set out by Mr. Justice (later Chief Justice) Horace Stern in his opinion for the court in Witney v. Lebanon City, 369 Pa. 308, 85 A.2d 106 (1952) where he said, 369 Pa. at 311-312, 85 A.2d at 108:

“Even if it should ultimately be decided that plaintiff’s action cannot be maintained because the final estimate of the engineer was, under the terms of the contract, to be conclusive, the question of jurisdiction would not be affected thereby. In Zerbe Twp. School District v. Thomas, 353 Pa. 162, 44 A.2d 566, we stated principles which are here applicable, namely that even though a plaintiff have no standing to bring his action, even though his complaint be demurrerable, even though he failed to establish its allegations, even though the court should finally conclude that the relief he seeks should not be granted, not any or all of these circumstances would enter into, much less determine, the question whether the court had jurisdiction of the litigation.”

Therefore, insofar as SEPTA, in this appeal, attempts to challenge the trial court’s ruling on non-jurisdictional issues, the appeal will be quashed. Our review will be limited solely to the question of whether the jurisdictional issue was properly decided by the trial court.

III.

A.

The test to be applied in deciding whether subject matter jurisdiction exists was also set forth in Witney v. Lebanon City, 369 Pa. at 312, 85 A.2d 106, where Justice Stern said:

“We there pointed out that the test of jurisdiction was the competency of the court to determine controversies of the general class to which the case presented for its consideration belonged,—whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case; that the Act of 1925 was not intended to furnish a shortcut to a determination of the issues of law or fact raised by the pleadings and that it was not concerned with matters going to the right of the plaintiff to recover on his cause of action but only with his right to have his cause of action heard and determined.”

More recently in Sperry & Hutchinson Co. v. O’Connor, 488 Pa. 340, 412 A.2d 539 (1980) the court, in holding that the court of common pleas had subject matter jurisdiction of a petition in escheat, pointed out that the question embraced the “competency” of the trial court to hear and decide controversies and disputes belonging to the “general class” to which the case under consideration belonged. The controlling question is whether the trial court has the power to embark upon the inquiry and not whether the relief sought in that particular case may ultimately be granted. As Mr. Justice Larsen pointed out for the majority “the question of the power to hear or adjudicate a controversy in escheat and the question of the power to escheat are separate and distinct questions” 488 Pa. at 345, 412 A.2d 541 (emphasis in original). Mr. Justice Roberts, although dissenting on another point, agreed with the majority that the trial court had subject matter jurisdiction. He emphasized, however, that the conclusion that the trial court had jurisdiction to entertain and consider the case did not in any way answer the question of the petitioner’s right to the relief sought.

Applying these standards to the appeal before us, the only question for our determination at this time is whether the trial court has the authority and power to entertain, hear, and decide controversies of the general class into which the controversy presented by appellee’s complaint falls. Whether or not appellee may ultimately recover against SEPTA is not at issue at this time. SEPTA may or may not have a perfectly valid and conclusive defense to appellee’s complaint. That issue, however, should be determined preliminarily in the trial court and not by this court in the event we conclude, as we have, that the courts of common pleas of this Commonwealth have jurisdiction to entertain and decide cases of the general class to which appellee’s claim belongs. Once it is determined that a trial court has subject matter jurisdiction the case is to be remanded to that court for further proceedings, including the development of the issues by appropriate pleadings, a trial to ascertain or determine issues of fact that are raised, and an ultimate conclusion entered on the merits of the issues raised by the parties. Only then are any of the parties entitled to appellate review and determination of the merits of their respective rights and liabilities. Also see Wechsler v. Newman, 256 Pa.Super. 81, 389 A.2d 611 (1978).

B.

Appellee, in asserting that the trial court has subject matter jurisdiction to entertain and decide cases of the general class to which his case belongs, relies upon the decision of the United State Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The trial court, in reaching its conclusion, quoted extensively from the opinion of Mr. Justice White in Vaca. However, the opinion in Vaca v. Sipes, supra, does not confer jurisdiction or authority on the courts of common pleas of this Commonwealth to entertain or decide the general class of cases to which plaintiff’s case belongs.

Initially it should be noted that Vaca v. Sipes did not involve a suit by an employee against his employer. In that case the employee sued only his local and international unions for breach of their duty of fair representation. The court’s discussion of the employee-employer relationship was unnecessary to its decision and was strongly criticized in the dissenting opinions. The essence of the decision in Vaca v. Sipes, however, was that Congress did not preempt the field when it enacted the Labor Management Relations Act [LMRA] and that, therefore, the National Labor Relations Board [NLRB] did not have “exclusive jurisdiction” to hear and consider the employee’s claims against his unions. The Supreme Court, in upholding the jurisdiction of the Missouri State Courts to hear and consider the employee’s claims went on to hold that the state courts in exercising their jurisdiction over the controversy, had applied an inappropriate standard to adjudicate the union’s duty to the plaintiff. The Court said that it was necessary, since the employee’s complaint charged a breach by the unions of duties imposed by federal statutes, that federal law govern in determining whether or not the unions’ duty had been breached. Thus, at the best, Vaca is authority only for the proposition that the LMRA does not deprive the Pennsylvania state courts of jurisdiction in this case. To say that Congress did not deprive the state courts of jurisdiction to entertain and decide issues between employees and labor unions is far different from saying that Congress or the Supreme Court of the United States conferred jurisdiction on the state courts to entertain and decide such cases.

C.

Our conclusion, however, that Vaca v. Sipes does not confer subject matter jurisdiction on the courts of Pennsylvania does not mean that our courts are without jurisdiction.

Article 5, § 5 of the Pennsylvania Constitution provides that the court of common pleas shall have “unlimited original jurisdiction in all cases except as may otherwise be provided by law.” The constitutional provision was implemented by the General Assembly of Pennsylvania when § 931 of the “Judicial Code” was enacted. 42 Pa.C.S.A. § 931. The legislature provided that the courts of common pleas of the Commonwealth “shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.” [emphasis supplied.] The jurisdiction of the common pleas courts established therein is exclusive. There can be no doubt that the courts of common pleas have for years had the authority granted by law and usage to enforce contracts and fashion remedies for the breach thereof. That authority extends to contracts of employment and contracts entered into by third parties which confer benefits upon an allegedly aggrieved third party beneficiary. Thus, the courts of common pleas have subject matter jurisdiction to consider and decide claims of the general nature and category to which appellee’s claim belongs, unless a specific provision of the law can be demonstrated to have deprived the courts of such jurisdiction. In other words, if the plaintiff’s complaint asserts rights, with corresponding duties and obligations on the defendants, the courts of common pleas have jurisdiction to hear and decide controversies concerning those rights, duties and obligations unless such jurisdiction has been specifically removed by a statute or rule of law. SEPTA, of course, claims that such a rule of law and such a statute exist.

IV.

A.

First, SEPTA argues that the specific and detailed grievance procedures contained in the collective bargaining agreement between appellants give rise to a rule of law that deprives the trial courts of subject matter jurisdiction in this case. Generally speaking, however, the law of Pennsylvania is well settled that a contractual arbitration or grievance procedure does not oust the courts of the Commonwealth of subject matter jurisdiction in cases involving claimed breaches of the contract. In Wechsler v. Newman, 256 Pa.Super. 81, 389 A.2d 611 (1978) the owner of an apartment complex filed a complaint in ejectment and assumpsit against the tenants in the apartments. The tenants filed preliminary objections setting forth that the owner and a council representing the tenants had entered into a “collective bargaining agreement” that provided for binding arbitration of any unresolved disputes or issues between the owner and the tenants involving the contract. The tenants argued that the arbitration provision precluded the trial court from asserting jurisdiction over the owner’s lawsuit. This court, in affirming the trial court’s order which dismissed the preliminary objections said: “Our appellate courts, in applying [the test of jurisdiction], have consistently and emphatically held that a contractual arbitration clause does not affect the subject matter jurisdiction of the trial court and, therefore, does not provide a proper basis for a preliminary objection.” [256 Pa.Super. at 88, 389 A.2d at 614] Likewise, in Howey v. Colonial Penn Ins. Co., 234 Pa.Super. 383, 338 A.2d 627 (1975) it was pointed out that preliminary objections raising a defense based on an arbitration clause in an insurance policy did not raise a jurisdictional issue. Also see McClimans v. Barrett, 276 Pa.Super. 557, 419 A.2d 598 (1980).

SEPTA, however, argues that the decision of the Pennsylvania Supreme Court in Falsetti v. Local Union No. 2026 United Mine Workers, 400 Pa. 145, 161 A.2d 882 (1960) holds that the courts do not have jurisdiction to consider a complaint such as appellee’s where there is a collective bargaining agreement that establishes a contractual grievance and arbitration procedure which limits access to the unions rather than the employee. While at first blush SEPTA’s argument in this regard is appealing, there is an important and crucial distinction between the situation in Falsetti and that in the case before us. In Falsetti the plaintiff/employee filed a complaint in equity against his former employer and individual named officials of the union based on the allegation that he had been wrongfully discharged by his employer in violation of the seniority provisions of a collective bargaining agreement between the union and the employer. Falsetti also averred that his discharge was the result of an “unlawful conspiracy” between the individual union officers and the employer. Subsequently, he filed an amended complaint in which the union (as an entity) was added as a defendant in a second count of the complaint. In the second count he asserted that his union membership had been wrongfully terminated by the union. The employer was not named as a defendant in the second count. Preliminary objections were filed by the defendants, including objections to the trial court’s subject matter jurisdiction. The trial court sustained the preliminary objection charging that there was a misjoinder of causes of action and dismissed the complaint. The order was- affirmed on appeal. However, in analyzing the case, the court, after holding that the causes of action were improperly joined, went on to hold that the trial court did not have jurisdiction over either one of plaintiff’s claims. The lack of jurisdiction over the claim asserted against the union for improper expulsion, resulted from plaintiff’s failure to exhaust the internal remedies provided by the unions’ constitution and by-laws. Then turning to the first count of plaintiff’s complaint against his employer “and the individual appellees for an allegedly wrongful discharge” the court pointed out that the collective bargaining agreement contained no provision that authorized an individual employee or union member to enforce it. The court went on to say that the employee’s cause of action was precluded by the contractual grievance and arbitration procedure contained in the collective bargaining agreement since the agreement, by its terms, limited access to those procedures to the union. The court then pointed out that an aggrieved “member-employee” had an effective remedy. Under the agreement the union had a responsibility in representing its members to act in good faith, in a reasonable manner, and without fraud. For the breach of those duties, the union would be liable to its members in damages. Significantly, the court then went on to say, beginning at page 896: (400 Pa. at 172);

“Such would have been the proper theory upon which to proceed in the instant case. One of appellant’s averments was that the Union representatives have arbitrarily refused to process his grievances in breach of their fiduciary duty. There is but one flaw in this reasoning. The fiduciary duty owed the member-employee is by the Union, and not by its individual representatives. Officials of the Union, acting in their authorized capacities, cannot be held individually liable in damages to a member-employee for failure to process the grievance since they are but agents responsible only to the Union itself. It is the Union that is the proper target of appellant’s complaint.
“Since neither of appellant’s causes are predicated on a breach of fiduciary obligation theory the suit in its present posture cannot be maintained. The suit would be properly brought if directed against the Union for breach of its fiduciary obligations to appellant.” [Emphasis in original]

Thus, although the Court held in Falsetti that an employee could not maintain a suit against the individual officers of his union, it said that the courts of Pennsylvania do have jurisdiction over suits by employees against their union for alleged unfair representation. In the case before us, unlike the situation in Falsetti, appellee’s complaint is against the “Union” and it is averred that the union breached its fiduciary obligation of fair representation to appellee. The Court went on, moreover, to indicate that jurisdiction exists to consider such claims even when the employer is joined as a defendant:

“Quite apart from the question of federal pre-emption, the employer may be joined, under the proper circumstances, as a co-defendant for participating in the Union’s breach of its fiduciary obligations.” (400 Pa. at 173 n.22, and 161 A.2d at 896 n.22) [Emphasis added]

Thus, not only does the court’s opinion in Falsetti not support SEPTA’s argument, it is, by implication, some authority for the position of appellee in this case that where he has filed suit against his “Union” for breach of its responsibility of fair representation, he may join his employer as a defendant in that suit and the courts of the Commonwealth have jurisdiction to consider and decide such a suit.

In this case, appellee has alleged that his discharge by SEPTA for alleged “improper fare collections” was “unlawful”, “improper”, and “illegal”. He also avers that no criminal proceedings were ever instituted against him as a result of the alleged “improper” collections, and that his claim for unemployment compensation was granted despite the fact that SEPTA contested it through appeals to the Referee and later to the Unemployment Compensation Board of Review. Appellee asserts his innocence of the charges and alleges that when he turned to the grievance and arbitration procedures contained in the collective bargaining agreement for redress of the wrong committed by SEPTA his efforts failed due to the “gross”, “arbitrary”, and “capricious” breach by the unions of their fiduciary duty of fair representation at the grievance hearings and their refusal to pursue appellee’s grievance to arbitration. We should emphasize that whether these averments, if true, are sufficient to state a cause of action on which appellee may recover against SEPTA is not before us at this time. The sufficiency of the complaint to state a cause of action must be raised by demurrer and, as already pointed out, the trial court’s ruling on SEPTA’s demurrer is beyond our appellate jurisdiction at this time. We hold only that the complaint is sufficient to show that appellee’s claims are within a “general class” of controversies over which the courts of the Commonwealth have the power to consider and decide. Under such circumstances the contractual grievance and arbitration provisions of the collective bargaining agreement do not prevent the trial court from exercising subject matter jurisdiction over appellee’s complaint.

B.

Finally, SEPTA argues that the courts of common pleas have been deprived by the General Assembly of Pennsylvania of jurisdiction to consider complaints such as appellee’s by the enactment of the PERA. The argument is that the legislature vested exclusive jurisdiction in the PLRB to consider and act upon charges of unfair practices and conduct between employees, employers and unions subject to the provisions of the Act.

A similar argument was presented to the Pennsylvania Supreme Court in West Homestead Boro School Dist. v. Allegheny Co. Bd. of School Directors, 440 Pa. 113, 269 A.2d 904 (1970) where the defendant argued that the 1968 Supplemental Reorganization Act to the Public School Code of 1949 provided an exclusive, statutory, administrative remedy which had not been utilized by the plaintiff. In considering that argument the court said, 440 Pa. at 118, 269 A.2d at 907:

For more than 150 years, it has been the rule in Pennsylvania that: ‘In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect.’ Act of 1806, March 21, P.L. 58, 4 SM.L. 326 § 13; 46 P.S. § 156. See Calabrese v. Collier Twp. Munc. Auth., 430 Pa. 289, 294-95, 240 A.2d 544, 547 (1968).
“This statute says in unambigious language that, if the legislature provides a specific, exclusive, constitutionally adequate method for the disposition of a particular kind of dispute, no action may be brought in any ‘side’ of the Common Pleas to adjudicate the dispute by any kind of ‘common law’ form of action other than the exclusive statutory method. This excludes an action for injunction, or other equitable form of relief, unless the statute provides for it or unless there is some irreparable harm that will follow if the statutory procedure is followed.
“It is equally clear, that if the legislative method for disposing of the dispute is not exclusive, some appropriate form of ‘common law’ action in the Court of Common Pleas may be available, and the Common Pleas may have ‘jurisdiction’ ...
“Accordingly, our task in this case is simply to examine the underlying statute which governs this controversy and to determine its effect under the provisions of the Act of 1806 and the opinion in Calabrese, supra.” (emphasis in original)

The court went on in that case to hold, after analyzing the Supplemental Reorganization Act, that the administrative procedure provided therein constituted “a comprehensive and constitutionally adequate procedure available to a school district which considers itself aggrieved by the actions of the County and State Boards.” The Supreme Court held that the trial court lacked subject matter jurisdiction at the early stage of the administrative proceedings involved in that case and, therefore, lacked authority to consider the plaintiff school board’s complaint.

Although the Act of 1806, referred to by the Supreme Court in West Homestead Boro School Dist. v. Allegheny Co. Bd. of School Directors, supra has been repealed, it has been replaced and essentially reenacted by the Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1504. Therefore, our task is to examine the underlying statute, in this case the PERA, to determine whether or not it provides a specific exclusive constitutionally adequate method for the disposition of appellee’s claim.

It is true that § 1301 of the PERA vests exclusive jurisdiction in the PLRB “to prevent any person from engaging in any unfair practice listed in Article XII of” the act. However, an examination of the unfair practices listed in § 1201 of the PERA shows that neither SEPTA’s conduct or the actions of the unions about which appellee complains in this complaint are included. A list of the unfair practices of public employers over which exclusive jurisdiction has been vested in the Board does not include a discharge which the employer claims was for the improper or illegal performance by the employee of the duties of employment. The only form of employee discharge over which the Board has been granted exclusive jurisdiction is a discharge based upon the employee’s action in signing or filing “an affidavit, petition or complaint” or giving “any information or testimony under” the PERA. Appellee does not even allege or argue now that his discharge by SEPTA was for any of these reasons. Additionally, the alleged breach by the unions of their duty of fair representation during the grievance procedure is not among the unfair practices of employee organization over which the Board has been granted exclusive jurisdiction. Since an examination of the provisions of PERA shows that the legislature did not provide an exclusive, specific or adequate method for the disposition of appellee’s claim in this case, it follows that the courts of common pleas have not been deprived of subject matter jurisdiction by the enactment of the PERA by the legislature.

The same result was reached by a panel of the Commonwealth Court in Rutledge v. Southeastern Pa. Tran. Auth., 52 Commonwealth Ct. 308, 415 A.2d 982 (1980), a case involving the same employer, the same unions and the discharge of an employee for similar, although not identical reasons.

CONCLUSION

Having concluded that this court has appellate jurisdiction to consider only the issue of subject matter jurisdiction raised by appellants and that the trial court in this case has jurisdiction to entertain, consider and decide appellee’s complaint, and for the reasons expressed herein, the appeal of the unions at No. 2457 Oct. Term, 1978 is dismissed. In the appeal by SEPTA at No. 2459 Oct. Term, 1978 the order of the trial court overruling SEPTA’s preliminary objections to the jurisdiction of the trial court, pursuant to Pa.R.C.P. 1017(b)(1) and 1509(b) is affirmed. In all other respects the appeal at No. 2459 Oct. Term 1978 is quashed. The case is remanded to the trial court for further proceedings. Jurisdiction is relinquished.

      . Act of July 23, 1970, P.L. 563, as amended, 43 Pa.C.S.A. §§ 1101.-101 et seq.

      . We need not, therefore, consider the question of appellate jurisdiction under Pa.R.A.P. 311(b) which is based in part on the Act of 1925. Compare Pa. Higher Education Assistance Agency v. DiMassa, 296 Pa.Super. 529, 442 A.2d 1177 (1982) [Held: Order of the trial court sustaining subject matter jurisdiction was interlocutory and appeal under Rule 311(b) was quashed].

      . Appellate jurisdiction of this case was properly in the Commonwealth Court. Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 762, effective June 27, 1978, as amended. However, since the appellee has failed to file an objection to the filing of the appeals in this Court our appellate jurisdiction is perfected. Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 704, effective June 27, 1978, and Pa.R.A.P. 741. Under the circumstances existing in this case and in the interest of judicial economy we have concluded that we should proceed to a resolution of the issues presented rather than transfer the case to the Commonwealth Court. Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 406 A.2d 1133 (1979), Muntan v. City of Monongahela, 45 Pa.Cmwlth. 23, 406 A.2d 811 (1979).

      . Mr. Justice Nix, in his dissenting opinion in Sperry & Hutchinson Co. v. O’Connor, supra, expressed the view that the Court’s “decisions have been far from consistent in determining what is appealable under the Act” of 1925. As examples of such inconsistency he cited cases involving the absence of indispensable parties, a plaintiffs incapacity to sue, questions of venue, and the timeliness of appeals taken to the courts of common pleas. None of those issues are presented of course in the appeals before us. Justice Nix also expressed the opinion that the majority in Sperry, supra, had adopted an “unreasonably restricted interpretation” in deciding what issues may be considered and decided in appeals taken under the Act of 1925. In the absence of any clear authority to the contrary, however, we have declined to expand the scope of our review in this case in spite of the thought provoking concerns expressed by Justice Nix as to the possible consequences of a refusal “to allow interlocutory review of matters raising a fundamental limitation on the court’s power to act even though the limitation does not amount to a lack of competency in the purest sense.” 488 Pa. at 359, 412 A.2d at 549.

      . 29 U.S.C. §§ 141 et seq.

      . A subsequent decision of the Court in Hines v. Anchor Motor Freights, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976) involved an action by former employees against their union and employer for an alleged wrongful discharge in breach of the collective bargaining agreement. That case was instituted in the Federal Courts, and involved the interpretation and application of § 301 of the LMRA. It likewise, therefore, in spite of some factual similarity with the case before us, does not “confer jurisdiction” over such cases on the Pennsylvania state courts.

      . We are required, in passing upon appellant’s preliminary objections, to accept as true appellee’s averments of fact contained in his complaint. Upon remand and trial they will be subject, of course, to proof if denied by appellants.

      . Also see Brookhaven Borough v. American Rendering, Inc., 434 Pa. 290, 256 A.2d 626 (1969) [an amendment to the Air Pollution Control Act of 1960 extended the remedies available thereunder permitting equity jurisdiction to attach in all cases of alleged public or private nuisances resulting from air pollution], and Gardner v. Allegheny Co., 382 Pa. 88, 114 A.2d 491 (1955) [held that (1) the Civil Aeronautics Act of 1938 did not deprive the state courts of subject matter jurisdiction to consider a complaint in equity seeking an injunction to enjoin the flight of commercial airliners over plaintiffs’ properties “below the floor of the navigable airspace in landing at or taking off from Greater Pittsburgh Airport,” but (2) that the provisions of the Second Class County Code dealing with the condemnation of properties and the assessment of damages therefore deprived the courts of common pleas, at least initially, from assessing damages for an alleged taking of the plaintiffs property by virtue of repeated flights over the plaintiff’s property which it was alleged completely destroyed the value of the properties, thereby constituting a “taking”].

      . The facts underlying the complaint in Rutledge were basically the same as those in the present case. The Commonwealth Court concluded that the act complained of was not an unfair labor practice under the PERA.


source: Caselaw Access Project

author: CIRILLO, Judge: POPOVICH, Judge,

license: Public Domain

text:
    447 A.2d 303
    COMMONWEALTH of Pennsylvania v. David FIORI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1982.
    Filed June 25, 1982.
    W. Robert McClenahan, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

Appellant, David Fiori, was convicted of simple assault, and sentenced on October 28, 1980, to one year probation and ordered to pay restitution. Appellant retained new counsel, who filed with the trial court a motion for new trial nunc pro tunc and a motion for withdrawal of guilty plea. On October 27, 1980, these motions were denied. On November 20, 1980, appellant filed notice of appeal to this Court in the Court of Common Pleas of Allegheny County. On December 29, 1980 and January 14, 1981, the trial court issued orders for an evidentiary hearing to be held on appellant’s claim of ineffective assistance of trial counsel. These evidentiary hearings were not held. On August 28, 1981, the trial court issued a second order and opinion in support of that order denying appellant’s motions for new trial and in arrest of judgment. On January 30, 1981, appellee (the Commonwealth) filed with this court a petition to remand for an evidentiary hearing concerning the ineffectiveness of trial counsel. On February 27, 1981, a per curiam order was entered by this court denying the petition to remand for an evidentiary hearing.

Appellant’s main contention on appeal is that the trial court erred for failure to conduct an evidentiary hearing to determine his allegations of ineffective assistance of trial counsel. Appellant additionally raises four specific allegations of ineffectiveness of trial counsel, that is, trial counsel was ineffective for: 1) failing to present the defense of justification, 2) failing to request an order for sequestration of Commonwealth witnesses, 3) failing to request a jury trial and advising appellant to proceed to trial without a jury, and 4) not advising appellant of an agreement entered into with the Commonwealth which resulted in an adjudication of guilt of simple assault.

Appellant was initially charged with aggravated assault. Appellant waived his right to a jury trial by a signed waiver dated July 14, 1980. Trial commenced non-jury on that date. During the direct testimony of the victim, Gary Hagen, the trial court called for an in-chambers conference with both counsel. This conference was held off the record. After this conference was held, the proceedings resumed in open court. The Commonwealth rested its case, trial counsel stated that he had nothing further to present, and also rested his case. The trial court then adjudicated appellant guilty of simple assault.

As previously stated, appellant’s main contention is that the trial court erred for its failure to conduct an evidentiary hearing to determine the allegations of ineffective assistance of trial counsel. Initially, we note our standard of review as set forth in Commonwealth v. Crawford, 285 Pa.Super. 169, 427 A.2d 166, 171 (1981):

Our task in cases of this nature . . . encompasses an independent review of the record . . . and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. . . We cannot emphasize strongly enough, however, that 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 . . . the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis. Citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5, 235 A.2d 349, 352-3 (1967).
If we cannot determine from the record whether counsel had a reasonable basis for not pursuing a claim, then we must remand for an evidentiary hearing on that issue. Commonwealth v. Ciotti, 279 Pa.Super. 75, 80, 420 A.2d 751, 753 (1980).

We cannot determine from the record before us whether trial counsel was ineffective for: 1) failing to present the defense of justification, 2) failing to request an order for sequestration of Commonwealth witnesses, 3) failing to request a jury trial and advising appellant to proceed to trial without a jury, and 4) not advising appellant of an agreement entered into with the Commonwealth which resulted in an adjudication of guilt of simple assault. Appellant argues that this agreement was not a voluntary, knowing and intelligent waiver of his rights.

Therefore, an evidentiary hearing is needed to supplement the record. At this hearing, an inquiry must be made into the reasons of trial counsel which underlined the decisions which he made at trial. See Commonwealth v. Stoner, 284 Pa. Super. 364, 425 A.2d 1145, 1150 (1981).

Judgment of sentence is vacated, and the case remanded for an evidentiary hearing to determine the effectiveness or ineffectiveness of trial counsel. Jurisdiction of this Court is not retained.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

I respectfully dissent. The lower court (per CAPPY, J.) correctly stated the case and authored an unerring analysis of the issues herein presented. I, therefore, would affirm on the basis of the lower court’s opinion.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2701.

      . Pa.R.A.P. 1701(a) provides:
      except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a- quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.
      Therefore, the reason for the non-occurrence of these evidentiary hearings is that the notice of appeal was docketed in the trial court, and the trial court no longer had jurisdiction over this matter.

      . Appellate counsel was in favor of the Commonwealth’s petition to remand for an evidentiary hearing. The Commonwealth asserts that the trial record is inadequate to assess appellant’s claim of ineffective assistance of trial counsel.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2702.


author: JOHNSON, Judge:

text:
    447 A.2d 305
    COMMONWEALTH of Pennsylvania v. James M. WOLFE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1981.
    Filed June 25, 1982.
    Petition for Allowance of Appeal Denied Nov. 30, 1982.

      H. Brown Fry, Mifflintown, for appellant.
    Randall E. Zimmerman, District Attorney, Mifflintown, for Commonwealth, appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant was charged with burglary, theft, receiving stolen property and conspiracy. The charges arose out of an incident on Sunday October 29, 1978, when the appellant and a co-conspirator allegedly removed a safe containing cash, stamps, keys and business records from the office of the president of a shirt manufacturing plant. Following a jury trial, appellant was found guilty and sentenced to pay the costs of prosecution, to make restitution to the victim and to undergo imprisonment in a state institution for not less than two years and three months and not more than six years, with credit for time served.

We reverse and grant a new trial.

Because of the nature of the errors asserted in this appeal it is necessary to recount in some detail the developments at the trial.

On the day of trial, Tuesday, May 8, 1979, trial defense counsel filed notice of an alibi defense, having only been made aware of such defense the day before. At trial the Commonwealth’s evidence consisted of the testimony of an alleged accomplice, Bonnie Wieseman, an employee of the shirt factory, who testified to having accompanied the co-conspirators in her car to and from the shirt factory on the evening of the burglary. The Commonwealth then called Patricia Zong to the stand. This prompted a sidebar conference at which the Commonwealth’s offer of proof showed that Mrs. Zong would testify that appellant and his co-conspirator had brought the safe in question to her house and opened it with her tools.

Defense counsel, at sidebar, objected to the introduction of this testimony, claiming surprise because the name of this witness had not been given to him by the Commonwealth in its response to his informal request for discovery. See Pennsylvania Rules of Criminal Procedure 305, 42 Pa.C.S.A. (Purdon Pamp.1982). The judge ordered a recess. From that point, until trial resumed the next morning, the jury was not present at any of the proceedings involved in this appeal. After the recess the judge decided that there was a question as to whether or not Mrs. Zong was an “eyewitness”, but that to resolve the matter he would give defense counsel an opportunity to interview her before she testified.

In anticipation of a possible assertion by Mrs. Zong of the fifth amendment privilege against self-incrimination, special counsel was summoned by the court to advise Mrs. Zong. Following discussion with special counsel Mrs. Zong refused to testify, asserting her fifth amendment privilege. The judge ruled that the privilege was properly asserted, and after further discussion on matters not pertinent to this appeal, ordered another recess.

The record shows that during the recess defense counsel had raised a matter with the judge in camera. The judge decided that this should be a matter of record. Accordingly he directed defense counsel, the defendant, a court reporter and deputy sheriffs to retire to his chambers for an in camera conference. There, defense counsel explained that until the offer of proof of Mrs. Zong’s testimony he had planned to defend the charges on the basis that the defendant was innocent. But upon counsel’s asking the defendant about Mrs. Zong and her proffered testimony, the defendant responded that he thought he had told counsel that he had committed the burglary.

Defense counsel told the court that he concluded therefore that as he would then be offering perjured testimony from the defendant and the two alibi witnesses he must withdraw from the case in order not to violate an ethical rule by aiding in the commission of perjury. The judge pointed out that defense counsel did not necessarily know that the alibi witnesses would be lying. Defense counsel disagreed and insisted upon withdrawing even on pain of being cited for contempt. The judge finally permitted the withdrawal, and informed the defendant that he would appoint the public defender in order that the trial proceed.

The defendant stated at least three times during this colloquy that he did not want the public defender, and wanted to acquire counsel of his own choice. The judge’s reaction to this objection to the public defender was, on the record, as follows:

I think my obligation to the defendant and to the court and to the public is to provide as fair a trial as I can under the circumstances. I am reluctant to even let you move for a mistrial at this point or continue the case because I don’t know that that would be a voluntary decision on your part. What I have told you is that I will substitute Mr. Manbeck. Whether you use him or not is up to you. You indicate that you don’t want him and you can’t represent yourself and the obvious answer would be to postpone the trial; but to do that, under the circumstances, is not a voluntary decision on your part—to move for a mistrial and terminate this trial. ... You don’t have counsel. The counsel I have assigned for you you don’t want and it is in the middle of the trial. I think I must direct that this trial continue with Mr. Manbeck as backup counsel to sit in, and you can use him to the extent that you want to use him, and see how it goes.

The judge then called the jury back into the courtroom and excused them for the rest of the day, thus giving the substituted counsel some hours to prepare for the rest of the trial.

The next morning, Wednesday, May 9, 1979, the appointed defense counsel made a motion for a continuance in order that the defendant be able to acquire counsel of his own choosing. This motion was denied. Trial resumed. Mrs. Zong did not testify. The alibi witnesses did testify. The defendant did not testify. The jury found the defendant guilty of burglary, theft and conspiracy, which verdict the judge molded to guilty of burglary and conspiracy.

This appeal is brought by a third counsel. Appellant asserts firstly that the omission of Mrs. Zong’s name from the Commonwealth’s response to defense counsel’s informal request for discovery so prejudiced his right to a fair trial that he should have a new one. He asserts secondly that being without effective counsel at the in camera conference he was unable to request a mistrial and therefore the trial court erred in not declaring a mistrial sua sponte. Because of the result we reach in this case we shall deal firstly with appellant’s second assertion.

To begin with, we note that no one at any time made a motion for a mistrial, although the judge did raise the matter at the in camera conference as quoted above. Secondly, the substitute counsel did actually move for a continuance. Thirdly, the defendant’s repeated statements to the judge in camera that he refused appointed counsel and wanted to retain his own counsel were tantamount to requests for the time and opportunity to do so. We choose therefore to frame the issue before us in terms of the propriety of the denial of a motion for continuance, rather than of a non-existent motion for mistrial.

The allowance of continuances is largely a matter within the discretion of the lower court, and the denial of a continuance does not constitute reversible error unless there is an abuse of discretion. Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). The Supreme Court of the United States has said:

[I]t is not every denial of a request for more time that violates due process even if the party . . . is compelled to defend without counsel .... Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-850, 11 L.Ed.2d 921, 931 (1964) (emphasis added) (citations omitted) (no deprivation of the right to counsel where the appellant had been given five days’ notice of the hearing in question, where the witnesses were available, the evidence fresh and available, two short continuances had already been granted, and the motion at issue was made on the day of the hearing).

In Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973), the petitioner was an attorney challenging a local rule of court which prohibited attorneys representing ten or more criminal defendants whose indictments were over twelve months old from entering an appearance in any additional criminal cases. Our Supreme Court said:

It is clear we must balance conflicting rights which reach constitutional proportions in order to resolve this case. On the one hand we have the right of criminal defendants to counsel of their choice and the right of attorneys to practice criminal law. On the other, we have the state’s constitutional duty to provide speedy trials and its obligation to its citizens to have criminal violations adjudicated quickly.

451 Pa. at 309, 306 A.2d at 288-289. This balancing test has since been applied by our appellate courts in cases involving a defendant’s insistence on certain counsel where such insistence would necessitate a last-minute postponement of the scheduled trial. See Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976) (no abuse of discretion in the denial by the trial court of a continuance where privately retained counsel had taken no action to prepare for trial, not communicated with his client, not responded to any notices of the date of trial, one continuance had already been granted, and a substitute counsel had been appointed well in advance of trial); Commonwealth v. Egan, Pa.Super. (1982) [No. 1591 Philadelphia 1980, filed February 26, 1982, Petition for Reargument filed] (reversible error to deny petition to withdraw guilty plea entered after defendant tried to insist on replacing appointed counsel with privately-retained counsel, no continuance allowed by lower court); Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980) (no abuse of discretion in denying continuance where defendant had appeared at trial seventeen months after his arrest, without counsel, after due notice); Commonwealth v. Atkins, 233 Pa.Super. 202, 336 A.2d 368 (1975) (denial of right to counsel where the defendant refused representation at trial by associate of her own counsel and therefore had to represent herself when trial court denied continuance).

Each of these Pennsylvania cases makes it clear that there is indeed a right to counsel of one’s choice, but that right is not absolute, yet the defendant’s need for time to acquire his own counsel must be weighed against the public need for the efficient administration of justice. See also Commonwealth v. Baines, 480 Pa. 26, 389 A.2d 68 (1978) (no error in trial court removing defense counsel and appointing new counsel, where original counsel had entered an appearance in one hundred and ten criminal cases which had not yet been tried and had indicated that he did not know when he would be available to try appellant’s case); Paullet v. Howard, 634 F.2d 117 (3d Cir. 1980) (no abuse of discretion or denial of due process in denial of continuance where defense counsel’s associate appeared to try the case, where attorney had warned client that this might occur were he unavailable, where associate was familiar with the case, and where several continuances had already been granted).

In Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 1748, 72 L.Ed.2d 160 (1982), the Court of Appeals for the Ninth Circuit held that the trial court had violated the defendant’s right to counsel in refusing to grant a continuance until the defendant’s counsel was well enough to represent him at trial. The Court of Appeals ruled that the trial court was unable, without having inquired into the probable length of counsel’s unavailability due to ill health, to conduct the required balancing test between the defendant’s constitutional right to counsel and society’s interest in the prompt and efficient administration of justice. 649 F.2d at 721. The court also held that a denial of a continuance in these circumstances warranted a reversal of the conviction, irrespective of any showing of prejudice. Id. at 723.

In the case before us the lower court was faced with a difficult situation. In mid-trial the defendant had made a revelation to his lawyer which caused the lawyer to perceive the situation as one where he would be offering perjured testimony. The lawyer insisted on withdrawing from the case. As a result, counsel and client were in an adversarial posture. There was no one in chambers to speak for or to concern himself with the defendant. We are not persuaded that counsel knew for a fact that perjurious testimony was to be presented, as the judge himself stated at the in camera proceeding. And so in essence the situation appears very much as though once the lawyer decided that the proposed alibi testimony was false, he threw up his hands and abandoned the attempt to defend his client. If the alibi evidence was only supplied to him at the last minute, one can only ask how he had originally planned to present the defense of innocence, and why could he not have proceeded with his originally planned defense strategy. The record does not reveal that the lower court considered these, or other questions, in permitting defense counsel to withdraw.

It is clear that, after the lower court permitted the withdrawal of retained defense counsel, the defendant desired the right to secure his own replacement counsel and this was communicated to the trial judge. Moreover, substitute counsel renewed this request on behalf of the defendant the next day. It was at this critical point that the trial court should have conducted the required balancing test.

Prior to the court’s designation of the public defender as substitute counsel, no inquiry appears to have been made by the trial judge as to whom, if anyone in particular, the defendant wished to contact, whether he could afford to retain private counsel, or how much time he thought he would need. The withdrawal of the first lawyer had occurred early on a Tuesday afternoon, and court had adjourned for the day at 1:50 p.m.

The next morning, the public defender, as part of his motion on behalf of the defendant for a continuance, represented to the court that the defendant had sufficient means to retain private counsel and was requesting sufficient time to be able to secure a lawyer of his own choice. After the denial of this motion, the entire trial was concluded and the verdict rendered the same day.

Where, as here, the loss of counsel was not of the defendant’s own making, we are not prepared to conclude that the effect upon the judicial system would have been adverse, had the trial court explored the possibility of a continuance, midweek, to allow the defendant to seek to exercise his limited right to counsel of his choice.

Since no inquiry was made as to the probable length of time needed for the defendant to reappear with private counsel, we cannot say that any balancing of the competing interests could properly have been made. While we appreciate the necessity of avoiding any protracted recess after the jury has been empaneled, we are unable to conclude on this record that the exercise of the defendant’s limited right would have unduly disrupted the administration of criminal justice. Accordingly, we must conclude that the denial of the request for time and opportunity to acquire counsel of defendant’s own choosing, on these facts, constituted an abuse of the lower court’s discretion.

For these reasons, the judgment of sentence must be reversed and the case remanded for a new trial.

In the interests of judicial economy, however, we shall also consider appellant’s other allegation of error which, for the reasons given below, we find to be without merit. Appellant asserts that the omission of Mrs. Zong’s name from the Commonwealth’s response to defense counsel’s informal request for discovery so prejudiced his right to a fair trial that he should have a new one. Defense counsel’s informal request had asked, inter alia, for the names and addresses of eyewitnesses the Commonwealth intended to call at time of trial, and the names and addresses of all witnesses to the transaction described in the Information whom the Commonwealth intended not to call. To these requests the Commonwealth responded, respectively, with Bonnie Wieseman’s name, and no other, and that the police files were available to defense counsel for inspection.

The first question, therefore, is whether Patricia Zong was an eyewitness whose name should have been given to defense counsel under Pa.R.Crim.P. 305B(2)(a), 42 Pa.C.S.A. (Purdon Pamp.1982), which provides for the discretionary discovery of the names and addresses of eyewitnesses. She was not a witness to the breaking and entering of the factory or to the removal of the safe from the factory. Therefore, she was not literally an eyewitness to the crime charged.

The former rule on disclosure, Pa.R.Crim.P. 310 (effective January 1, 1965 until December 31, 1977), allowed a discretionary grant of discovery of the defendant’s written statements. It prohibited pretrial disclosure of written statements by witnesses for the prosecution. Earlier cases in this court denied the disclosure of a list of prosecution witnesses. See, e.g., Commonwealth v. Bederka, 459 Pa. 653, 331 A.2d 181 (1975); Commonwealth v. Noyer, 265 Pa.Super. 544, 402 A.2d 679 (1979).

The new rule, Pa.R.Crim.P. 305, effective January 1,1978, substantially changes the discovery rule. It encourages informal discovery and incorporates the ABA discovery standards as guidelines in determining what is discoverable. Although Rule 305 expressly provides for the discretionary discovery of “eyewitnesses” to the crime, it does not answer the question whether other witnesses are discoverable at all if they do not fall within the classes of witnesses specifically discoverable, such as those with exculpatory, identification or expert evidence.

According to the principles codified in the Statutory Construction Act of 1972, 1 Pa.C.S.A. §§ 1501-1991 (Purdon Pamp. 1982), we must construe the words of the rule according to their common and approved usage, 1 Pa.C.S.A. § 1903(a), and where words are clear and unambiguous we are not to read them otherwise, 1 Pa.C.S.A. § 1921(b). We read the word “eyewitness” to mean a witness who saw the incident in question with his/her own eyes. Although in the case before us the witness in question did see an incident connecting the defendant to the crime, she did not witness the crime with which he was charged. She therefore does not fall within the category of eyewitnesses whose names and addresses may be ordered to be given to the defense counsel after a motion for pretrial discovery has been filed as provided for in Pa.R.Crim.P. 305B(2)(a). See Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175 (1982). In Bey defense counsel had requested a mistrial on the grounds of surprise and prosecutorial misconduct when the Commonwealth, without notice, introduced testimony by the mother of the victim to the effect that the defendant had threatened revenge on the victim after the victim’s testimony at the preliminary hearing. We held that, as the mother was not an eyewitness within the meaning of Pa.R.Crim.P. 305B, disclosure of her name as a witness was not required, and that if it was required by the spirit of liberal discovery espoused by Rule 305, as appellant suggested, any harm to the defense was cured by the continuance ordered by the judge in order to enable defense counsel to investigate the matter and to procure witnesses to rebut the testimony. See Pa.R.Crim.P. 305E.

Appellant also contends that Mrs. Zong’s name should have been supplied in response to his request for a list of witnesses that the Commonwealth did not intend to call. Pennsylvania’s appellate courts have said that when the prosecution does not call an eyewitness to the stand, the Commonwealth must apprise the defense of the witness’s name and whereabouts at trial, unless the defense is able or should have been able to procure the witness unaided. Commonwealth v. Gee, 467 Pa. 123, 134, 354 A.2d 875, 879 (1976); Commonwealth v. Carter, 427 Pa. 53, 55, 233 A.2d 284, 285 (1967); Commonwealth v. Jackson, 224 Pa.Super. 280, 283, 303 A.2d 519, 521 (1973), rev’d on other grounds, 457 Pa. 79, 319 A.2d 161 (1974).

The rationale for this rule is basically the principle of fairness. “[T]he district attorney is a quasi-judicial officer and as such should be motivated by a desire to accomplish justice rather than by an inordinate zeal to obtain convictions . . . . ” Commonwealth v. Giacobbe, 341 Pa. 187, 196, 19 A.2d 71, 75 (1941). See Commonwealth v. Schmidt, 437 Pa. 563, 567, 263 A.2d 382, 384 (1970); Commonwealth v. Horn, 395 Pa. 585, 589, 150 A.2d 872, 874 (1959). See also, Commonwealth v. Cramer, 168 Pa.Super. 1, 76 A.2d 661 (1950), where this court said, in response to an allegation by the appellant that the Commonwealth had a duty to produce certain eyewitnesses in court so that if the prosecution did not call them to testify, the witnesses would be available to be called by the defense:

We think common fairness made it the duty of the Commonwealth to have produced these witnesses in court at the trial, or to show reasonable efforts to produce them; or, in view of the defendant’s efforts to obtain the witnesses, that a continuance be granted. All of the difficulty and any motion for a continuance would have been avoided had the Commonwealth conformed to the practice suggested in Commonwealth v. Sarkis et al., 164 Pa.Super. 194, 199, 63 A.2d 360, and had the eyewitnesses present in court, notifying the defendant that the Commonwealth would not call them. See also Commonwealth v. Keller, 191 Pa. 122, 134, 43 A. 198; Commonwealth v. Deitrick, 221 Pa. 7, 15, 70 A. 275. The question was not whether the testimony of the eyewitnesses would be helpful to the Commonwealth,—which was not bound to call them. The appellant’s contention in this regard is sustained.

Commonwealth v. Cramer, 168 Pa.Super. at 4, 76 A.2d at 662-663.

The ABA Standards quoted in the Comment to Pa.R. Crim.P. 305 explain that the rules for full and free discovery are to “provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process.” With this purpose in mind, together with the principles of fairness espoused in our case law, it would seem that Mrs. Zong’s name should at least have been made available to the defense, which indeed it was. The prosecution complied with the spirit of liberal discovery by allowing defense counsel to look through the police files.

Appellant cites Commonwealth v. Bartman, 240 Pa.Super. 495, 367 A.2d 1121 (1976), for the proposition that the Commonwealth having answered defense counsel’s request for discovery misled defense counsel into thinking that no other evidence existed, thus causing defense counsel to adopt a certain strategy which he might not have adopted had he known of the rest of the Commonwealth’s evidence. We do not find Bartman apposite, because the unexpected testimony in Bartman was introduced, and the jury heard it, and thus it did have a highly prejudicial effect. In the case before us the unexpected testimony was not introduced, thus there was no prejudice from it.

Accordingly, in this case, Mrs. Zong was not an eyewitness and therefore not discoverable on those grounds; her name was available to the defense through the police files, thus the requirement of prosecutorial fairness was satisfied and the principle of liberal discovery was complied with; she did not testify, thus the defendant was not prejudiced by her arrival on the scene at the trial. There was therefore no reversible error in the prosecution’s calling Mrs. Zong to testify without giving her name to the defense ahead of time.

To summarize, appellant’s first allegation of error is found to be without merit, but where, as here, a defense counsel withdraws mid-trial, substitute counsel is appointed, and no inquiry conducted into the feasibility of defendant’s request for time or opportunity to obtain new private counsel, there is an abuse of discretion in summarily denying a continuance without balancing the competing interests of a defendant’s right to counsel of his choice and society’s right to the swift and efficient administration of justice. Judgment of sentence is reversed and new trial granted.

      . 18 Pa.C.S.A. § 3502(a) (Purdon 1973).

      . 18 Pa.C.S.A. § 3921(a).

      . 18 Pa.C.S.A. § 3925(a).

      . 18 Pa.C.S.A. § 903(a).

      . Pa.R.Grim.P. 305C(1)(a), 42 Pa.C.S.A. (Purdon Pamp.1982), provides that a defendant who intends to offer an alibi defense should file notice thereof at the time required for filing the omnibus pretrial motion. Pa.R.Crim.P. 307 provides that the omnibus pretrial motion should be filed within 30 days after arraignment unless, inter alia, the attorney was not aware of the grounds for the motion.

      . Compare Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). In that case, a Commonwealth witness named Darcy had given statements to the police implicating defense counsel in a plot to murder another Commonwealth witness. The defense attorney denied the allegation and indicated that he would need to testify in order to discredit Darcy’s testimony. For this reason he would be unable to render effective assistance to his client. He therefore introduced his client to independent counsel. The defendant and both counsel then moved for a mistrial which was granted. Id., 472 Pa. at 635-636, 373 A.2d at 105-106.

      . We take no position in this case with respect to the lawyer’s actions. Our examination of what has been written by scholars and other authorities on the matter shows us that there is no easy answer to the dilemma facing a lawyer whose client wishes to offer perjured testimony.
      The Pennsylvania Supreme Court Code of Professional Responsibility, 1974, 42 Pa.C.S.A. (Purdon 1975 and Supp.) clearly forbids a lawyer from knowingly using perjured testimony or false evidence. See Disciplinary Rule 7-102(A)(4). The Code also provides for mandatory withdrawal of a lawyer from a case where he knows that his continued employment will result in a violation of a Disciplinary Rule. See DR 2-110(B)(2). The Code provides for permissive withdrawal of a lawyer where his client seeks to pursue an illegal course of conduct or insists that the lawyer pursue an illegal or unethical course of conduct. See DR 2-110(C)(1)(b), (c).
      The ABA Committee on Ethics and Professional Responsibility, Informal Opinion 1314, March 25, 1975, states:
      if the attorney knows in advance that his client intends to use false or perjured testimony, it is his duty to advise the client that the lawyer must take one of two courses of action:
      (1) Withdraw at that time in advance of the submission of the perjured testimony or false evidence; or
      (2) Report to the court or tribunal the falsity of the testimony or evidence, if the client insists on so testifying.
      It is axiomatic that the right of a client to effective counsel in any case (criminal or civil) does not include the right to compel counsel to knowingly assist or participate in the commission of perjury or the creation or presentation of false evidence.

        Id at 2. See also, Informal Opinion 1318, January 13, 1975, which also emphasized the primary duty of the lawyer to protect the confidentiality of privileged communication from the client.
      The American Bar Association (ABA) Standards for Criminal Justice which deal with the defense function contain a proposed standard for dealing with a potentially perjurious defendant. See ABA Standards for Criminal Justice, Standards Relating to the Defense Function (2d ed. 1980). Defense Function Standard 4-7.7 provides that the lawyer, upon discovering that the client plans to commit perjury, must first try to dissuade him. If the client insists on taking the stand the lawyer must attempt to withdraw, without specifying the reason. If for one reason or another withdrawal is not possible, the lawyer must limit his examination to matters which will not elicit the perjurious testimony, permitting the defendant to give a free narrative if he chooses to make a statement to the fact-finder. The lawyer must also make a record of the situation. This standard insists that the lawyer not reveal the proposed perjury to the court.
      In new rules of professional conduct, the ABA Special Commission on Evaluation of Professional Standards is taking a different direction. In its Model Rules of Professional Conduct (Proposed Final Draft, May 30, 1981), the Commission’s approach to the ethical dilemma here is that the lawyer’s duty of candor to the tribunal overrides his duty to keep his client’s revelations confidential. See Erickson, The Perjurious Defendant: A Proposed Solution to the Defense Lawyer’s Conflicting Ethical Obligations to the Court and to his Client, 59 Denver L.J. 75, 84-86 (1981). See also Wolfram, Client Perjury, 50 So.Cal.L.Rev. 809 (1977); Callan & David, Professional Responsibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary System, 29 Rutgers L.Rev. 332 (1976).
      The case law on the issue of projected client perjury is sparse. In Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978), the defendant was tried non-jury on a charge of first degree murder. After testimony placing the defendant in the victim’s presence next to the car (where the victim was found shot at close range) immediately before firecracker-like sounds were heard, the defendant took the stand and testified that she had not shot the victim. Counsel requested a recess. In chambers, counsel, without giving a reason, requested permission to withdraw, which was denied. Trial resumed. Counsel asked no further questions of the defendant, made no reference to her testimony, and argued only that the state’s case was subject to reasonable doubt, or at least not one of first degree murder. The court found defendant guilty of second degree murder. The Court of Appeals for the Ninth Circuit, on a habeas corpus appeal, concluded that the motion to withdraw in these particular circumstances had deprived the defendant of a fair trial, and accordingly ordered that the writ issue. The court said that the fact finder could easily infer that perjury was the cause for counsel’s wish to withdraw. Secondly, the court found that the lawyer was now in a position of opposition to, instead of advocacy in, his client’s defense.
      The Court of Appeals was careful not to condemn the procedure suggested by the ABA Standard 7.7, supra, which it called a “passive refusal to lend aid to perjury.” 575 F.2d at 731. The court did find fault, however, with counsel’s motion to withdraw in a case where the judge was the fact-finder. Id.

        In United States ex rel. Wilcox v. Johnson, 555 F.2d 115 (3d Cir. 1977), the Court of Appeals for the Third Circuit affirmed the grant of a habeas corpus writ. At a jury trial for rape, the defendant sought to present an alibi defense rather than the consent defense preferred by his counsel. A recess was allowed for the two to reconcile their differences. Counsel then informed the judge that if the defendant testified she would move to withdraw as counsel. She then told her client that if he testified she would be permitted to withdraw. The defendant consequently chose not to testify. The Court of Appeals found that, whether or not a criminal defendant has a constitutional right to testify, this defendant was entitled to habeas corpus relief because the trial judge, by threatening him with the loss of his counsel, had violated his sixth amendment rights as well as his statutory right to testify, and thus deprived him of a fair trial. The thrust of the court’s decision goes to the importance of the confidentiality between client and counsel.
      The Wiicox court concluded the opinion with the statement that an attorney may not volunteer a mere unsubstantiated opinion that his client’s protestations of innocence are perjured. Perjury must be a certainty. Id. at 122. This has a bearing on the case before us, as is seen in the in camera discussion where the judge asked defense counsel immediately after defense counsel revealed the situation to him—“how do you know these witnesses are lying?” In other words, it is crucial in this type of situation that the lawyer know for sure that actual perjury is involved; he must not merely suspect it.

      . Pa.R.Crim.P. 305 provides for pretrial discovery, both informal and by motion. Some disclosure is mandatory and other disclosure is discretionary. The section of the rule at issue in this case is Pa.R. Crim.P. 305B(2) which provides in part:

        Discretionary with the Court: In all court cases, ... if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
      (a) the names and addresses of eyewitnesses[.]

      . See ABA Standards Relating to Discovery and Procedure Before Trial (Approved Draft, 1970), 1.1 and 1.2, as guiding principles in applying Pa.R.Crim.P. 305B(2) and C(2). Comment, Pa.R.Crim.P. 305, 42 Pa.C.S.A. (Purdon Pamp. 1982). See also, Note, Rule 305: Expanded Criminal Discovery, 82 Dick.L.Rev. 573 (1978); Comment, Pretrial Discovery and Inspection—New Criminal Rules for Pennsylvania, 23 Vill.L.Rev. 308 (1977).

      . Pa.R.Crim.P. 305B(1)(a).

      . Pa.R.Crim.P. 305B(1)(d).

      . Pa.R.Crim.P. 305B(1)(e).

      . See note 9, supra.

      . The Standards for Discovery and Procedure Before Trial quoted in the Comment to Pa.R.Crim.P. 305 were those of the proposed draft of 1970. Subsequently the ABA House of Delegates approved a final version in 1978. See ABA Standards for Criminal Justice, (2d ed. 1980). Standard 11-2.1 provides for prosecutorial disclosure, upon request by the defense, of inter alia the names and addresses of witnesses. Contrast Federal Rule of Criminal Procedure 16 which does not provide for discovery of the names of witnesses to be called by the government. A proposed subsection which did provide for disclosure of a list of government witnesses was omitted. See Advisory Committee Notes following Fed.R.Crim.P. 16.


author: LIPEZ, Judge: WIEAND, Judge,

text:
    447 A.2d 314
    COMMONWEALTH of Pennsylvania, Appellee, v. Jay C. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 24, 1981.
    Filed June 25, 1982.

      John J. O’Brien, West Chester, for appellant.
    Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   LIPEZ, Judge:

Defendant pleaded nolo contendere to carrying firearms without a license, 18 Pa.C.S. § 6106, possession of instruments of crime (PIC), 18 Pa.C.S. § 907, and disorderly conduct, 18 Pa.C.S. § 5503. He received concurrent two-to-five-year prison sentences for the firearms violation and PIC, with a concurrent six-month-to-one-year sentence for disorderly conduct. Defendant’s only contention in this appeal is that his sentence is manifestly excessive. We vacate the judgment of sentence, and remand for sentencing.

“In reviewing a sentence challenged as manifestly excessive, this court is required to review the sentence itself and the process by which the sentencing judge reached it.” Commonwealth v. Kraft, 294 Pa.Super.Ct. 599, 601, 440 A.2d 627, 628 (1982). Just before pronouncing defendant’s sentence, the sentencing judge stated:

All right. We are concerned with the seriousness of the crimes. This defendant entered his plea, and the background disclosed in the pre-sentence report, and it is our feeling that this defendant is in need of correctional treatment that can be most effectively provided by commitment to an institution. That any lesser sentence than that which we are about to pronounce would depreciate the seriousness of his conduct.

This is the complete statement of reasons for the sentence.

As in Commonwealth v. Kraft, supra, the sentencing judge here completely failed to consider sentencing alternatives other than total confinement, failed to consider factors individual to the defendant, and failed to disclose reasons demonstrating that the standards of the Sentencing Code were followed. See Commonwealth v. Cruz, 291 Pa.Super.Ct. 486, 489 n. 2-3, 436 A.2d 220, 222 n. 2-3 (1981); Commonwealth v. Walton, 289 Pa.Super.Ct. 411, 415-21, 433 A.2d 517, 519-22 (1981); Commonwealth v. Gaito, 277 Pa.Super.Ct. 404, 412, 419 A.2d 1208, 1213 (1980); cf. Commonwealth v. Skinner, 275 Pa.Super.Ct. 251, 418 A.2d 707 (1980); see also Commonwealth v. Russo, 297 Pa.Super. Ct. 424, 444 A.2d 105 (1982). We must therefore remand for sentencing in accordance with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the Sentencing Code, 42 Pa.C.S. § 9721 et seq. Commonwealth v. Kraft, supra; see also Commonwealth v. Sullivan, 497 Pa. 76, 439 A.2d 110 (1982).

Judgment of sentence vacated and case remanded for resentencing.

WIEAND, J., filed a dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. I would hold that the reasons given for the trial court’s sentence sufficiently complied with the requirements of Pa.R.Crim.P. 1405(b) and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). See Commonwealth v. Haggerty, 294 Pa.Super. 590, 440 A.2d 623 (1982); Commonwealth v. Bachert, 271 Pa.Super. 72, 412 A.2d 580 (1979). Therefore, I would affirm the judgment of sentence.

      . While the only issue raised by the defendant is excessiveness of the sentence, defendant contends in his argument on that issue that the lower court did not adequately state its reasons for the sentence, as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). The Commonwealth claims that excessiveness of sentence is a distinct issue from failure to comply with Riggins, and defendant has therefore waived the Riggins issue by not raising it separately from the excessiveness issue in the motion to modify sentence which defendant filed in the lower court, pursuant to Rule of Criminal Procedure 1410. As Commonwealth v. Kraft, supra, makes clear, however, in order to conduct a proper review of a claim that a sentence is manifestly excessive, an appellate court must determine whether the lower court stated adequate reasons on the record to demonstrate that the standards of the Sentencing Code were considered and applied. Our Supreme Court clearly follows this procedure. For example, in a recent case in which the sole issue raised was excessiveness of the sentence, the Court reviewed the reasons stated by the lower court and concluded that the sentence should be affirmed because “the record sets forth sufficient reasons to assure this Court that appellant’s sentence was individualized and fair.” Commonwealth v. Townsend, 497 Pa. 604, 607, 443 A.2d 1139, 1140 (1982) (citations omitted). Thus a claim that a sentence is excessive is sufficient to raise the question of adequacy of the lower court’s reasons for the sentence, and to the extent our decision in Common

        wealth v. Brown, 288 Pa.Super.Ct. 171, 174, 431 A.2d 343, 345 (1981) is contrary, it has been implicitly overruled. Commonwealth v. Townsend, supra.

      . The sentencing judge did not file an opinion pursuant to Rule of Appellate Procedure 1925(a). In a letter to the Court Administrator, which has been included in the record, the sentencing judge points out that Rule 1925(a) does not require an opinion if the reasons appear of record. The sentencing judge states that he relies on the statement of reasons at the sentencing hearing, but this statement was plainly inadequate. Cf. Nigrelli v. Cody, 281 Pa.Super.Ct. 156, 160-61, 421 A.2d 1195, 1197-98 (1980), rearg. den’d.


author: PER CURIAM:

text:
    447 A.2d 316
    COMMONWEALTH of Pennsylvania v. Clifton L. MEAD, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed June 25, 1982.
    Joseph A. Mazza, Jr., Warren, for appellant.
    John A. Aranyos, Assistant District Attorney, Warren, for Commonwealth, appellee.
    Before PRICE, MONTGOMERY and VAN der VOORT, JJ.
   PER CURIAM:

Counsel has failed to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), as set forth in Commonwealth v. Liska, 252 Pa.Superior Ct. 103, 380 A.2d 1303 (1977). Counsel’s request to withdraw (contained in appellant’s brief) is therefore denied, and the record is remanded to the lower court with directions that counsel comply with the requirements set forth in Commonwealth v. Liska within 30 days of the date of this Order. We retain jurisdiction.


text:
    447 A.2d 316
    Rose TSCHESCHLOG, Appellant, v. BOARD OF SUPERVISORS OF TINICUM TOWNSHIP.
    Superior Court of Pennsylvania.
    Submitted Nov. 5, 1981.
    Filed June 25, 1982.
    William B. Eagan, Willow Grove, for appellant.
    George M. Bush, Doylestown, for appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   PER CURIAM:

This is an appeal from an order affirming the decision of the Tinicum Township Board of Supervisors denying appellant a license to operate a junkyard. Appellant claims that she is entitled to operate the junkyard as a nonconforming use. The lower court found, however, that that use had been abandoned. Since this dispute “[draws] into question the application, interpretation or enforcement of ... [a] local ordinance . . . . ” 42 Pa.C.S.A. § 762(a)(4)(i)(B), we are transferring this appeal to the Commonwealth Court. Pa.R. A.P. 752.

So ordered.


author: MONTGOMERY, Judge:

text:
    447 A.2d 615
    COMMONWEALTH of Pennsylvania v. Clifford CUNNINGHAM, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed April 12, 1982.
    Reargument Denied July 26, 1982.

      J. Hugh O’Donnell, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from appellant’s conviction by a jury of murder in the third degree and his subsequent sentence of three (3) to six (6) years imprisonment. We reverse the judgment of sentence and discharge appellant as there was insufficient evidence to support the conviction.

Appellant’s conviction resulted from a charge of accomplice to murder. The Commonwealth’s evidence was based on the premise that appellant, in identifying and detaining the victim, Scott Kates, facilitated the confrontation between the murderer and Kates. The facts herein, however, do not support such a vicarious assignment of liability.

In evaluating the sufficiency of the evidence, the record must be viewed in the light most favorable to the Commonwealth, and, drawing all reasonable inferences therefrom, sufficient evidence must be found to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Joyner, 489 Pa. 502, 414 A.2d 1003 (1980); Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). Viewed in this light,- the record reveals the following:

During the morning of October 4, 1979, one of appellant’s boarders, Carlos (Charles) Perez, told appellant that someone had entered his third floor quarters and stolen his food stamps. Perez implied that he thought some of appellant’s visitors may have been involved. While questioning his neighbors, appellant learned that on the day of the burglary some of them had seen a young man, Scott Kates, climb in the rear window of appellant’s house where the Perez apartment was located.

At or around one o’clock in the afternoon of October 4th, appellant saw Kates on a bicycle and attempted to question him about the burglary. The victim got off his bicycle, ran across the street to a vacant lot, and picked up two empty beer bottles. Appellant walked over to his car and removed a baseball bat from it. Kates began to run with the bottles in his hands.

A witness, who was washing his car across the street, heard a noise, looked up, and saw Kates getting up from the ground. He saw appellant point to Kates and identify him as the thief to someone the witness could not see. It was later determined that the someone was Carlos Perez, who was approximately one-half block away from appellant. Meanwhile, Kates started running. When appellant began to chase him, Kates threw a beer bottle and hit appellant in the chest. Appellant caught up with Kates and hit him twice in the leg. The witness then saw Perez, who approached the scene from behind appellant, standing over the victim with a piece of wood resembling an ax handle in his hands. As the witness turned away from the scene he heard a thumping noise. He next saw appellant return the bat to his car and drive away. He observed the victim walking around dazedly approximately IV2 minutes later.

A police officer arrived at the scene immediately thereafter and took the victim to the hospital where he died the next day. During the trial, a county medical examiner testified that the cause of death was injury to the skull and brain, and that death was by homicide.

The facts, even when viewed in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Joyner, supra, are insufficient to sustain a finding of vicarious criminal liability for third degree murder. Vicarious criminal liability is premised upon the existence of the element of criminal intent. Commonwealth v. Wright, 235 Pa.Super. 601, 344 A.2d 512 (1975). To aid and abet in the commission of a crime, one must possess a shared intent to commit it. Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977); Commonwealth v. Leach, 455 Pa. 488, 317 A.2d 293 (1974).

It is undisputed that appellant detained Kates by hitting him in the leg and identified him as the thief to Perez. This, however, was the only evidence adduced at trial which could lead the jury to infer that appellant was an accomplice to the murder. On the other hand, there was undisputed testimony that appellant could not see Perez approaching with a piece of wood and that he attempted to restrain Perez from hitting Kates. Even without the mitigating explanation concerning appellant’s actions, the identification and detainment in light of the totality of the circumstances are insufficient to prove intent beyond a reasonable doubt. Though aiding and abetting may be established by circumstantial evidence, proof must lead to more than suspicion or conjecture. Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975). Even if the guilty verdict was based on more than suspicion or conjecture, the evidence presented could only lead to an inference of guilt of third degree murder by a preponderance of the evidence. A conviction in a criminal case, however, cannot stand if it must depend upon a preponderance of the evidence, for the criminal standard is proof beyond a reasonable doubt. Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978).

Judgment of sentence is reversed and appellant is discharged.

POPOVICH, J., concurs in the result.

      . Other testimony revealed that Carlos Perez’s attack on the victim was unexpected by appellant. During the attack, appellant attempted to stop Perez and, eventually, was able to pull Perez away from Kates. This testimony is uncontradicted by any other evidence.

      . Notably, appellant was initially charged with simple and aggravated assault in addition to murder and voluntary manslaughter. All charges except for murder and voluntary manslaughter were nolle prossed by the prosecution. Our review of the record reveals that there may have been legally sufficient evidence for a conviction of simple and/or aggravated assault. We cannot reach this question, however, as the assault charges were not before the lower court during trial.