author: WIEAND, Judge:

text:
    515 A.2d 594
    Joseph DeANGELO, Appellant, v. Ronald G. FORTNEY, Appellee.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Sept. 23, 1986.

      Charles A. Bierbach, Huntingdon, for appellant.
    Lawrence L. Newton, Huntingdon, for appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   WIEAND, Judge:

Joseph DeAngelo was solicited for business purposes by two home improvement companies in February and March, 1985. The solicitation occurred after DeAngelo’s name, address and telephone number had been supplied by Ronald G. Fortney in response to information cards distributed by the home improvement contractors. DeAngelo filed a civil complaint against Fortney, alleging causes of action in separate counts for harassment and invasion of privacy. The trial court sustained preliminary objections in the nature of a demurrer and entered judgment for Fortney on both causes of action. DeAngelo appealed. We affirm.

“Upon demurrer, a reviewing court must regard as true all well pleaded facts and reasonable inferences deducible therefrom.” Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983). Conclusions of law, however, do not bind a reviewing court. Cunningham v. Prudential Property and Casualty Insurance Co., 340 Pa.Super. 130, 133, 489 A.2d 875, 877 (1985). It is in this light that we examine the complaint to determine whether it sets forth a cause of action which, if proved, would entitle the plaintiff to the relief sought. Id. If the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Id.; Rubin v. Hamot Medical Center, 329 Pa.Super. 439, 441, 478 A.2d 869, 870 (1984).

Appellant alleged in his complaint that Solarshield, Inc. called him by telephone in early February, 1985, to ask whether he wanted to arrange an appointment regarding kitchen repairs. Approximately one month later, appellant received a letter from the Gunton Company, which advertised window and door replacements and solicited appellant’s business. When appellant asked why contractors had contacted him, he was told that cards, requesting that the contractors get in touch with him, had been filled out in his name at displays maintained by the contractors at a local shopping mall. These cards allegedly had been completed by Fortney.

It has been observed that the cause of action for invasion of privacy “ ‘is not one tort, but a complex of four.’ ” Vogel v. W.T. Grant Co., 458 Pa. 124, 129 n. 9, 327 A.2d 133, 136 n. 9 (1974), quoting W. Prosser, Handbook of the Law of Torts § 117, at 804 (4th ed. 1971). See also: Restatement (Second) of Torts § 652A; Prosser and Keeton on Torts § 117, at 851 (5th ed. 1984). These four consist of (1) intrusion upon seclusion; (2) appropriation of name or likeness; (3) publicity given to private life; and (4) publicity placing a person in false light. Restatement (Second) of Torts § 652A. In the instant case, appellant contends that there was an intrusion upon his seclusion.

This tort is defined at Restatement (Second) of Torts § 652B as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

An actionable intrusion consists of “an intentional interference with [a person’s] interest in solitude or seclusion, either as to his person or his private affairs or concerns ____” Restatement (Second) of Torts § 652B, comment a. However, there is “no liability unless the interference with the plaintiff’s seclusion is a substantial one, of a kind that would be offensive to the ordinary reasonable [person], as the result of conduct to which the reasonable [person] would strongly object. Thus, there is no liability for knocking at the plaintiff’s door, or [for] calling him to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.” Restatement (Second) of Torts § 652B, comment d. See also: Chicarella v. Passant, 343 Pa.Super. 330, 339, 494 A.2d 1109, 1114 (1985) (intrusion must be substantial and highly offensive to ordinary person). To constitute a tortious invasion of privacy an act must “ ‘cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’ ” Hull v. Curtis Publishing Co., 182 Pa.Super. 86, 99, 125 A.2d 644, 646 (1956), quoting Smith v. Doss, 251 Ala. 250, 252-253, 37 So.2d 118, 120-121 (1948).

In the instant case, appellant has failed to plead a substantial and highly offensive intrusion. He has alleged one telephone call and one mailing from separate, home improvement contractors, each of whom was soliciting appellant’s business. These were caused by and at the instance of appellee. Business solicitations are generally inoffensive inquiries accepted as part of daily living. Two inquiries or solicitations, each by a different contractor, is clearly insufficient to give rise to an actionable intrusion upon appellant’s seclusion. See: Sofka v. Thai, 662 S.W.2d 502 (Mo.1983) (six or eight phone calls over course of several months by collection agency not actionable as a matter of law); Tobin v. Michigan Civil Service Commission, 416 Mich. 661, 331 N.W.2d 184 (1982) (mailing of unsolicited messages not amounting to harassment is not actionable); Bradshaw v. Michigan National Bank, 39 Mich.App. 354, 197 N.W.2d 531 (1972) (unsolicited mailings not actionable intrusions). Cf. Chicarella v. Passant, supra (securing plaintiff’s hospital records neither substantial nor highly offensive); Nagy v. Bell Telephone Company of Pennsylvania, 292 Pa.Super. 24, 436 A.2d 701 (1981) (obtaining list of telephone numbers called long distance from subscriber’s phone did not “cause mental suffering, shame, or humiliation to a person of ordinary sensibilities”). See generally: Annot. 56 A.L.R.3d 457; Prosser and Keeton on the Law of Torts, § 117 (1984).

The present action was brought not against the soliciting contractors but against the person who had given the contractors the name, address and telephone number of the person to be solicited. Still, the calls themselves were not tortious; and, therefore, we should not create a cause of action against one who initiated the events leading up to those solicitations. We hold, rather, that it was not actionable for appellee to provide to business persons the name, address and telephone number of appellant as a potential customer.

DeAngelo also attempted to state a cause of action against Fortney for harassment. Pennsylvania courts have not heretofore recognized a separate tort of harassment. We decline to do so in the instant case, being of the opinion that an action for invasion of privacy will ordinarily be an adequate remedy for highly offensive conduct which unreasonably interferes with another’s right to be left alone. Cf. Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985) (court refused to recognize new tort where existing tort and contract remedies afforded adequate remedies to address claims such as those asserted by plaintiff). Moreover, if we were to create a separate tort of harassment premised upon the crimes of harassment, as defined at 18 Pa.C.S. § 2709, or harassment by communication or address, as defined at 18 Pa.C.S. § 5504, appellant has in this case failed to allege injury of any type resulting from the business solicitations of which he complained. The furnishing of appellant’s name was not actionable.

Affirmed.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    515 A.2d 596
    COMMONWEALTH of Pennsylvania v. Charles MATTHEWS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 27, 1986.
    Filed Sept. 25, 1986.

      Charles Matthews, appellant, in propria persona.
    Mark E. Lovett, Assistant District Attorney, York, for Com., appellee.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from an Order of December 23, 1985, in the Court of Common Pleas of York County.

The record shows that, while represented by Steven G. Zorbaugh, Esquire, his court appointed attorney, the appellant pled guilty before the Honorable James Buckingham on September 9, 1985 to three counts of delivery of drugs. The appellant’s written guilty plea colloquy indicated that there was a plea bargain that “Defendant is to be sentenced three to six years on each of the above referenced counts, all of which are to run concurrent with each other.” The oral guilty plea colloquy first corroborated this bargain. However, the question arose whether the Defendant’s sentence of three years to six years would run concurrently with a two and one-half to five year sentence imposed by Judge Miller on the Defendant on September 6, 1985, for two counts of delivery of drugs ... The Defendant told Judge Buckingham, at his plea colloquy, that judge Miller, when he sentenced him as aforesaid, told him that his (Judge Miller’s) sentence would be concurrent with the sentence to be imposed in the present case.

However, the Defendant’s sentencing counsel before Mr. Zorbaugh, disagreed with the Defendant and told the court that there was no agreement that the sentence to be imposed by Judge Buckingham would run concurrently with Judge Miller’s sentence. Judge Buckingham then told the defendant, that unless there was an agreement of record that both sentences would be concurrent, the sentences would be consecutive to each other.

Appellant then, through his counsel, entered a “straight plea” without any plea arrangement. Appellant requested a pre-sentence investigation then entered his pleas of guilty. On December 2, 1985, appellant appeared for sentencing and was sentenced on all three counts to undergo imprisonment for a term of not less than four years nor more than eight years, to run concurrently with each other but consecutively to the two and one-half years to five years sentence he was presently serving.

On December 6, 1985, appellant filed a Motion to Withdraw his guilty plea on the ground that he did not “knowingly and willingly enter his plea of guilty” which was denied by the trial court. This appeal followed.

Appellant presents the following questions for our consideration:

1. Did the court below err by not making an on the record examination of appellant, as to an adequate colloquy as suggested under Pa.R.Cr.P. 319(a)?

2. Did the court below err by not honoring the plea bargain which appellant alleged by entered into at the conclusion of a previous trial?

3. Did the court below err by not allowing appellant to withdraw his guilty plea?

The court below ably disposed of the questions raised and refused to allow appellant to withdraw his plea. However, the court below found that:

“At the conclusion of the hearing, the undersigned Judge Buckingham indicated to the Defendant that (1) since the Defendant still admitted his guilty (sic), it was doubtful that he could now withdraw his plea of guilty, and (2) since the Defendant had testified that he told Mr. Zorbaugh before the sentence was imposed that he wanted to withdraw his guilty plea and that Mr. Zorbaugh never told him before sentencing that he could withdraw his guilty plea before sentencing, this involved a question of credibility and necessitated the Defendant filing a petition for relief under the Post-Conviction Hearing Act on the ground that his sentencing counsel was incompetent. He was also told that for purposes of the PCHA petition, he would be appointed new free counsel, and would have a hearing on his petition. The undersigned thereupon entered an Order refusing the Defendant’s request to withdraw his guilty plea, with the suggestion to Defendant that he file a petition for relief under the Post-Conviction Hearing Act and, if necessary and deemed appropriate, free counsel would be appointed for him and that he would have a hearing on the PCHA petition.”

The appeal is dismissed and the case remanded to the court below for the appointment of counsel to file a petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., to determine the competency of counsel at sentencing.

Appeal dismissed. Case remanded. Jurisdiction is relinquished.


text:
    515 A.2d 598
    Joseph LUCHANSKY and Josephine Luchansky, his wife, Appellants, v. The FARMERS FIRE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 26, 1986.
    Filed Sept. 25, 1986.

      Frank C. Carroll, Washington, for appellants.
    Richard W. DiBella, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

On May 15, 1982, a two story brick home located at 127 Main Street, West Brownsville, was destroyed by fire. Joseph Luchansky and Josephine Luchansky were the insureds under a policy of fire insurance issued by The Farmers Fire Insurance Company. In an action on the policy by the insureds to recover their loss, the trial court denied recovery on the grounds that Joseph and Josephine Luchansky lacked an insurable interest in the Main Street property. The insureds appealed. We reverse.

The improved real estate had been conveyed to Michael Luchansky by his parents, the appellants, pursuant to a written agreement executed on May 20, 1975. That agreement, which made use of a form agreement to sell real estate, required the parents to convey the premises to their son for the sum of One ($1) Dollar. The conveyance was intended to make it possible to borrow money on the security of the home. Accordingly, paragraph seven of the written agreement provided as follows:

The parties further agree as follows: that in order to secure a mortgage upon hereinafter described realty, the [son] shall hold a deed on behalf of the [parents] and that the [parents] shall continue to hold equitable title or interest to the property. The [son] shall reconvey it to the [parents] when the mortgage is paid off or the property sold.

(Emphasis added). Consistently with this expressed intent, the parents also agreed in paragraph five:

From and after the date of this agreement, insurance and taxes shall be provided and paid for as follows: by the [parents].

Following the conveyance of legal title to the son, a mortgage was placed on the property. The loan proceeds were used for the benefit of the parents, and the mortgage was paid by the parents. They also paid the taxes, purchased insurance and paid the premiums therefor, collected some or all of the rent and made repairs. Although they testified that they paid the taxes, credit therefor was taken in their son’s income tax returns. On two additional occasions, the property was again used as security to borrow money. In 1977, the son moved to Nevada. The parents thereafter leased the property to college students, collected the rents, kept the property in repair and kept it insured. However, legal title was not reconveyed to them until October, 1984. In the meantime, the building had been destroyed by fire.

The general rule is that anyone has an insurable interest who derives pecuniary benefit or advantage from the preservation or continued existence of the property or who will suffer pecuniary loss from its destruction. 43 Am.Jur.2d Insurance § 943; 4 Appleman, Insurance Law and Practice § 2123; Couch on Insurance § 24:13. A “[reasonable expectation of benefit from preservation of the property is thus sufficient.” 4 Appleman, Insurance Law and Practice § 2123. “It is not necessary to constitute an insurable interest that the interest be such that the event insured against would necessarily subject the insured to loss; it is sufficient that it might do so, and that pecuniary injury would be the natural consequence.” 43 Am.Jur.2d Insurance § 943. tage, is sufficient. It does not matter in what way such benefit arises or the reason loss would occur thereby, limited presumably by dictates of public policy—if such benefit would be lost by destruction of the subject matter, that interest is insurable.

[S]ince the requirement of an insurable interest arose merely to prevent the use of insurance for illegitimate (gambling) purposes, it should not be extended beyond the reasons for it by an excessively technical construction. And a right of property is not an essential ingredient of insurable interest; any limited or qualified interest, whether legal or equitable, or any expectancy of advan-

Thus, it may safely be said that a fee title is clearly not required of the insured, nor even a direct property interest, the test of exposure to financial loss being all important. An equitable title or interest or other qualified property right would clearly be sufficient____ And a person who has made himself responsible for property may insure it against loss.

4 Appleman, Insurance Law and Practice § 2123.

The evidence in this case demonstrated unequivocally that Joseph and Josephine Luchansky had an insurable interest in the property at 127 Main Street, West Brownsville. The title to the property had been conveyed by the parents to their son for the purpose of making it easier to borrow against the security thereof. In order to protect the parents’ interest in the property, however, a written agreement had been prepared. The agreement specifically provided for a reconveyance; it also provided that the property was to be insured by the parents and that the premiums therefor were to be paid by the parents.

The trial court refused to recognize the parents’ equitable interest in the real estate which the parties had intended by their written agreement. Contrary to the testimony by parents and son, the trial court held that the agreement had merged in the unconditional deed of conveyance. Because the deed conveyed an unconditional title in fee simple, the court held, the written agreement had merged and was no longer enforceable or even to be recognized by a court as creating an interest in the property which was insurable by the parents.

As a general rule, an agreement of sale will not merge in a deed of conveyance if the intention of the parties is otherwise or where the stipulations in the contract sought to be enforced are collateral to the functions performed by the deed. Carsek Corp. v. Stephen Schifter, Inc., 431 Pa. 550, 558-559, 246 A.2d 365, 370 (1968). The nature of the agreement in this case and the purposes to be accomplished by the deed of conveyance were such that a merger clearly was not intended by the parties thereto. This was not an action to enforce the provisions of the agreement. Indeed, the parties to the agreement have never disputed the right of the parents to compel a reconveyance by their son. All are agreed that the parents’ interest survived the transfer of title. That reconveyance has now been accomplished. The only issue in this case is whether the agreement between parents and son was sufficient to create or at least evidence the existence of an insurable interest in the parents.

Even if we assume that the agreement to reconvey merged in the unconditional conveyance of legal title to the son, the parents nevertheless had an interest in the real estate which was insurable. The agreement between parents and son required the parents to insure and keep insured the Main Street property. This was collateral to the functions to be performed by the deed. Carsek Corp. v. Stephen Schifter, Inc., supra. Pursuant thereto, it was in fact the parents and not the son who purchased fire insurance protection and paid the premiums therefor. Whether this was done by the parents pursuant to the terms of the agreement or merely on behalf of their son as agents, they had an insurable interest in the property. “[0]ne who makes a legally enforceable agreement to obtain insurance on property for the benefit of another has an insurable interest supporting a contract of insurance of the property even in his own name.” Keeton, Insurance Law § 3.4(a)(2). See also: Couch on Insurance § 24:13.

The transfer of legal title to the son was accomplished so that the son could borrow money for use by his parents. The evidence is undisputed that on several occasions the property was used as security for loans. On all of those occasions, some or all of the loan proceeds were used for the benefit of the parents. In 1977, the son went to Nevada. In his absence, the parents leased the property to college students and collected the rents. The evidence is clear also that it was the parents who made and paid for necessary repairs to the home. These facts were sufficient to establish beyond peradventure that the parents, even if they held neither “legal” nor “equitable” title to the home, were in a position in which they derived a benefit from the property’s existence and would suffer a loss from its destruction. As such, they had an interest which was insurable. See: Aetna Insurance Co. v. King, 265 So.2d 716 (Fla.Dist.App.1972) (Although insured held neither “legal” nor “equitable” title to grocery store and its contents which were destroyed by fire, insured nevertheless had an insurable interest in building and contents, where insured’s daughters, to whom insured had conveyed property, had made arrangements for use of all proceeds pursuant to lease agreement to be used for care and support of insured); Etterle v. Excelsior Insurance Co., 74 A.D.2d 436, 428 N.Y.S.2d 95 (1980) (Where parents had conveyed title to son but son had agreed orally that his parents could live in home but parents became ill and property was rented by parents, parents had insurable interest). See also: McHenry v. Stapleton, 443 Pa. 186, 278 A.2d 892 (1971) (resulting trust created where plaintiff’s decedent was intended to be beneficial owner and evidence indicated that defendants’ decedent took legal title only because plaintiff’s decedent’s credit status did not entitle him to get a mortgage, and entire mortgage was paid by plaintiff’s decedent).

From at least 1975 to 1982, Joseph and Josephine Luchansky paid premiums to The Farmers Fire Insurance Company to provide insurance protection for the premises on Main Street in West Brownsville. During this period, even though legal title had been conveyed to their son, they kept the premises insured, kept the premises in repair and caused the premises to be leased. During this period, their son, the legal title holder, did not purchase separate fire insurance protection. When appellants purchased insurance protection they were not gambling on the destruction of somebody else’s property by fire. They were insuring against the loss of their own interest, an insurable interest, in the home whose legal title they had conveyed to their son.

Reversed and remanded for determination of the amount of appellants’ fire loss which the appellee-insurance company is contractually obligated to pay.


author: POPOVICH, Judge:

text:
    515 A.2d 601
    Joseph E. LOJEK, Appellant, v. ALLSTATE INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued April 30, 1986.
    Filed Sept. 26, 1986.

      John P. Liekar, Jr., Canonsburg, for appellant.
    Stephen P. McCloskey, Washington, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by appellant, Joseph E. Lojek, from order and judgment entered in the Washington County Court of Common Pleas in favor of appellee, Allstate Insurance Company (hereinafter referred to as “Allstate”).

Appellant filed an action on May 20, 1983 to recover work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, (hereinafter referred to as “No-Fault Act”), the Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, 40 Pa.S.A. § 1009.101, et seq. Appellant had been injured in a motor vehicle accident on July 31, 1979. Since the accident occurred within the scope of his employment, appellant recovered workmen’s compensation benefits in the form of medical expenses and wage loss indemnity payments. Allstate’s liability was limited to payment of excess work loss benefits.

Allstate acknowledged that appellant was entitled to work loss benefits and began paying benefits for the period of time from May 20, 1981 through the present time, at the rate of $110.76 per month. Allstate denied appellant’s claim from the date of the accident, July 31, 1979, until May 20, 1981, more than two years prior to filing the instant action.

The case was submitted to the lower court on a stipulation of facts. The lower court sustained Allstate’s position that appellant’s claim for work loss benefits for the period from July 31, 1979 to May 20, 1981 was time-barred and dismissed appellant’s complaint. A post-trial motion for relief was dismissed. Judgment was entered in favor of Allstate. This appeal followed, and we affirm.

Appellant presents two issues on appeal: (1) whether appellant’s claim for work loss benefits for the period from July 31, 1979 to May 20, 1981 is time-barred under § 106(c)(1) of the No-Fault Act since appellant filed his claim within four years from the date of the accident; and, (2) whether appellant is entitled to attorney’s fees by virtue of Allstate’s failure to pay the work loss benefits claim.

Appellant contends that his claim for work loss benefits for the period from July 31, 1979 to May 20, 1981 is not time-barred under § 106(c)(1) of the No-Fault Act since § 106(c)(1) contains a four-year statute of repose which governs the instant claim for work loss benefits. Appellant states that the accident occurred July 31, 1979, and he filed his claim on May 20, 1983. Thus, appellant contends that, since his claim was filed within four years of the date of the accident, he is entitled to work loss benefits for the period from July 31, 1979 to May 20, 1981. We disagree.

The timeliness of an action to recover work loss benefits must be determined in accordance with § 106(c)(1) of the No-Fault Act. Section 106(c)(1) provides in pertinent part:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefore may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. (Emphasis added.)

In the instant case, there is no question that appellant brought his action to recover work loss benefits within four years after the accident. However, to accept appellant’s theory that he is entitled to work loss benefits solely because he brought his action to recover work loss benefits within four years after the accident, would leave the two-year statute of limitations also found in § 106(c)(1) meaningless.

Moreover, in Kamperis v. Nationwide Insurance Company, 503 Pa. 536, 469 A.2d 1382 (1983), and Guiton v. Pennsylvania National Mutual Casualty Insurance Company, 503 Pa. 547, 469 A.2d 1388 (1983), the Pennsylvania Supreme Court interpreted § 106(c)(1) and set forth the test for statute of limitations questions related to the section. The Court held:

[A]n action ... may be commenced (a) within two years from any time the victim suffers work loss as a result of the accident ... (b) within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for work loss, $15,000, ... and (c) not later than four years after the accident.

Kamperis, supra, 503 Pa. at 541, 469 A.2d at 1384. Guiton, supra, 503 Pa. at 550-551; 469 A.2d at 1389.

In the instant case, we agree with the lower court that the use of the word “and” rather than “or” indicates that the Supreme Court in Kamperis and Guiton intended that a claim in order to be timely filed “must satisfy all three conditions simultaneously at the time of filing, rather than just one or two of the conditions.” The lower court correctly found that the three conditions were not meant to act as alternatives. (Opinion, pp. 2-3).

In the case at bar, appellant’s claim satisfied the third condition since it was filed before the four-year statute of repose expired. His claim also satisfied the second condition since he had not accrued a work loss greater than $15,000. However, there is a question whether the first condition has been met by appellant.

In Kamperis, the Court ruled that work losses accrue as a victim is unable to work, and the statute of limitations begins to run when each loss is actually sustained. The victim suffered the work loss “on the date he could next have expected to receive his regular pay for work he would ordinarily have performed in due course, but for the accident.” In the case at bar, the statute of limitations, 40 Pa.S.A. § 1009.106(c)(1), contemplates commencement of the action not later than two years after the date appellant missed his next paycheck following the accident. Kamperis, supra, 503 Pa. at 540, 469 A.2d at 1384.

However, work loss is sustained each time a victim suffers economic detriment, i.e. misses a paycheck which he would ordinarily have earned but for the injuries he sustained in the accident. The maximum amount recoverable under the No-Fault Act for work loss is $15,000. 40 Pa.S.A. § 1009.202(b)(2). After the maximum compensable loss of $15,000 has occurred, a cause of action has fully accrued. The victim must bring a cause of action within two years thereafter. Kamperis, supra, 503 Pa. at 541, 469 A.2d at 1384. In Bailey v. Harleysville Mutual Insurance Company, 341 Pa.Super. 420, 425, 491 A.2d 888, 891 (1985), the court stated that “new causes of action for work loss benefits do not arise periodically thereafter ad infinitum.”

In the instant case, appellant failed to file his claim within two years of his next expected paycheck following this accident. The accident occurred on July 31, 1979 and his next expected paycheck was due on August 15, 1979. Appellant’s claim was not filed until May 20, 1983.

However, appellant’s failure to commence an action within two years after his accident does not bar all recovery for work loss benefits. We agree with the lower court that appellant loses the right to his first loss, but he is not foreclosed from claiming work loss from that time forward. Under the No-Fault Act, appellant sustains work loss each time he suffers economic detriment, i.e. misses a paycheck, until he reaches the $15,000 maximum amount recoverable under the Act. 40 Pa.S.A. §§ 1009.106(a)(1), 1009.106(c)(1), 1009.202(b)(2). Each work loss gives rise to a separate cause of action with its own two-year statute of limitations. Kamperis, supra, 503 Pa. at 540, 469 A.2d at 1384.

All of appellant’s work loss benefits which accrued within the two-year statute of limitations period between May 20, 1981 and May 20, 1983 are recoverable from Allstate. However, appellant’s claim for work loss benefits from July 31, 1979 to May 20, 1981 is time-barred under § 106(c)(1) since it falls beyond the two-year statute of limitations which governs this case.

Thus, appellant’s claim meets condition two and condition three, i.e. had not accrued a work loss greater than $15,000 and filed before the four-year limitation, as set forth in Kamperis and Guitón. However, it fails to satisfy totally condition one, i.e. within two years from any time the victim suffers work loss as a result of the accident. Therefore, appellant is only entitled to work loss benefits which accrued between May 20, 1981 and May 20, 1983. The work loss benefits for the period from July 31, 1979 to May 20, 1981 are time-barred under § 106(c)(1) of the No-Fault Act.

In view of our disposition of this case, appellant’s claim for attorney’s fees for the period of July 31, 1979 to May 20, 1981 must be denied. We are in agreement with the lower court that Allstate proceeded properly, and its denial of work loss benefits for that period was reasonable and made in good faith. (Opinion, p. 4) Hayes v. Erie Insurance Exchange, 493 Pa. 150, 158, 425 A.2d 419, 423 (1981).

However, Allstate also refused to pay work loss benefits for the period from May 20, 1981 through the present. It was only after appellant initiated the present lawsuit that Allstate agreed to pay all work loss benefits including interest for that period. Thus, that portion of the attorney’s fees claimed by appellant is recoverable if Allstate’s denial of work loss benefits for that period was unreasonable and made in bad faith. Id.

In the instant case, the stipulation stated that the matter was to be decided by the lower court without the necessity of a hearing and based on the stipulated facts presented. (Stipulation of Facts, p. 1). The record does not contain a sufficient stipulation of facts for us to be able to make a determination as to whether or not any counsel fees should be awarded in securing the payment of work loss benefits for the period of May 20, 1981 to the present, and the lower court does not adequately address the issue. Therefore, the matter must be remanded to the lower court for determination. Accord Adams v. Lierka Corporation, 463 Pa. 503, 510, 345 A.2d 632, 636 (1975).

That part of the order denying work loss benefits and attorney’s fees for the period from July 31, 1979 to May 20, 1981 is affirmed.

That part of the order denying attorney’s fees for the period from May 20, 1981 through the present is vacated and remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.


author: JOHNSON, Judge:

text:
    515 A.2d 605
    COMMONWEALTH of Pennsylvania v. Michael J. SZEKERESH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 27, 1986.
    Filed Sept. 23, 1986.

      Leonard I. Sharon, Pittsburgh, for appellant.
    James A. Nelson, Assistant District Attorney, Edensburg, for Commonwealth, appellee.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

We are asked to determine whether we should extend the rule of law promulgated in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), which grants a defendant a new trial after he has shown that he has suffered actual harm and actual prejudice arising from a conflict of interest in his representation following a pre-trial colloquy and subsequent waiver of his Sixth Amendment rights. Appellant, Michael J. Szekeresh, asks us to extend this rule to include the situation where the pre-trial colloquy informs the defendant of the specific risk of forfeiture of waiving a right, and subsequently that the specific risk created a conflict of interest which resulted in actual harm and actual prejudice. We decline to do so.

Szekeresh, in appealing from the September 20, 1985 Order denying a hearing under the Post Conviction Hearing Act, claims that his trial counsel rendered ineffective assistance. He argues that despite a pre-trial waiver of prospective conflicts, his ineffectiveness eminates from an actual conflict of interest which adversely affected trial counsel’s performance. Szekeresh also contends that the PCHA Court erred in denying him the opportunity to present evidence in support of his recusal motion. We disagree and, accordingly, affirm the September 20, 1985 Order.

Appellant was tried before a jury along with six other defendants. Appellant was convicted of both conspiracy to commit aggravated assault and aggravated assault. At trial, Louis LaLumere, Esquire, undertook the defense of six of the seven defendants, including Appellant. A pre-trial colloquy was conducted by the Honorable Joseph O’Kicki in which each of the six defendants accepted LaLumere’s joint representation. LaLumere sought generally to defend his clients on a theory that the police officers involved had instigated the incident. Each defendant claimed self defense or defense of a third person. In an effort to preclude expert medical testimony on the nature and extent of the injuries sustained by the police officers, LaLumere entered into a stipulation which admitted that the injuries received were serious bodily injuries as defined by 18 Pa.C.S. § 2702, Aggravated Assault.

First we will address Szekeresh’s arguement that a conflict of interest arose which adversely affected his trial counsel’s performance. The conflict, he argues, was caused by LaLumere’s general defense for all six defendants, coupled with the stipulation which prevented counsel from presenting an individualized defense on behalf of Szekeresh. Appellant contends that an individualized defense raised on his behalf would have reduced the charges against him to simple assault.

Both the trial court and the Commonwealth rely on the appeals of co-defendants Kenneth Swope and Phillip Brosch in stating that the issue raised by Szekeresh concerning conflict of interest has been dealt with by this Court twice before. Commonwealth v. Swope, 339 Pa.Super. 621, 488 A.2d 1167 (1984) (per curiam order); Commonwealth v. Brosch, 341 Pa.Super. 611, 491 A.2d 915 (1985) (per curiam order). Both the Swope and Brosch appeals concerned themselves with the question of whether the appellant’s therein had executed a knowing and intelligent waiver. We would be re-addressing the Swope and Brosch issue if, after a knowing and intelligent waiver, we were merely concerned with whether Appellant is entitled to a new trial upon a showing of actual harm and actual prejudice.

Appellant does assert that after the pre-trial colloquy and waiver he suffered actual harm and actual prejudice. This harm and prejudice, he maintains, resulted from a post-waiver conflict of interest. The difference here is that the alleged harm and prejudice resulting from the conflict of interest were risks of which he was specifically informed during the colloquy. Thus, the question facing this Court is whether such an Appellant is entitled to a new trial. The critical determination which we must make is whether this claim of counsel’s ineffectiveness, allegedly resulting from a conflict of interest, supersedes Appellant’s waiver.

We find no merit in Appellant’s argument because he waived his right to individual representation. He did so after being informed of the specific risks involved in joint representation.

An individual may knowingly and intelligently waive a constitutional right. Commonwealth v. Carey, 235 Pa.Super. 366, 340 A.2d 509 (1975). For that individual to be able to make a knowing and intelligent waiver of a constitutional right, he must have been aware of both the nature of the constitutional right and the risk of forfeiting the same. Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978); Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983). In such a situation the record must clearly demonstrate an intentional relinquishment of a known right or privilege. Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980). If all of the necessary information concerning the nature of and risk of forfeiture of the constitutional right is communicated to the individual, his waiver will not be disturbed. Commonwealth v. Carey, 235 Pa.Super. 366, 340 A.2d 509 (1975). Moreover, the Commonwealth merely needs to establish a knowing and intelligent waiver of a constitutional right by a preponderance of the evidence. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Roberson, 485 Pa. 586, 403 A.2d 544 (1979).

Appellant does not deny that he was present during Judge O’Kicki’s colloquy concerning LaLumere’s joint representation. He does, however, appear to be claiming that Judge O’Kicki’s colloquy was inadequate to inform him of all the risks of forfeiting his right to representation by his own individual attorney. In essence, he is arguing that he was not made fully aware of the possibility that LaLumere’s joint representation might result in the preclusion of certain defenses being asserted on his behalf. Thus, he argues that he was not adequately informed, and therefore, accepted LaLumere’s joint representation. Consequently he alleges that he suffered actual harm and actual prejudice. We find no evidence in the record to support Appellant’s position.

The record clearly shows that Appellant made a knowing and intelligent waiver of his right to individual representation, and that he accepted the consequences arising therefrom. He was aware of his right to separate counsel. The risks of forfeiting this right were made clear. N.T., 8/5/80 at 6-9. Judge O’Kicki conveyed all the necessary information, and specifically addressed the possibility that joint representation could result in the preclusion of a specific defense for an individual defendant. N.T., 8/5/80 at 8. At the end of this colloquy, all six defendants, including Appellant, knowingly and intentionally accepted LaLumere’s joint representation.

Circumstances might be different where there is no colloquy or where the colloquy did not inform the defendants of a particular risk of forfeiture and where that specific risk created a conflict of interest which resulted in actual harm. But where the colloquy fully apprises the defendants of the specific risk involved, a claim on appeal that this risk created a conflict of interest resulting in actual harm will not succeed. The focal point of this analysis is whether the Appellant made an informed decision.

In discussing the scope of and the protections afforded by the Sixth Amendment, and the waiver of these rights, the United States Supreme Court has focused on whether the decision to waive these rights was an informed one. As that Court stated in Cuyler v. Sullivan, supra:

The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection.

Cuyler v. Sullivan, supra, 446 U.S. at 344, 100 S.Ct. at 1716, 64 L.Ed.2d at 344. (emphasis added). We find, as a matter of law, that the waiver of the right to separate counsel is not superseded by any alleged conflict arising after such an informed decision.

In the present case, the pre-trial colloquy on joint representation fully informed the defendants of the specific risks of forfeiture which are now being claimed on appeal to have resulted in a conflict of interest. The differences between this case and those cases cited by Appellant in support of his position, are readily apparent. In Cuyler v. Sullivan, supra., the trial court did not conduct a pre-trial colloquy inquiring into whether the defendant appreciated the dangers of joint representation. In U.S. v. Fahey, 769 F.2d 829 (1st Cir.1985), the trial court did inform the defendant that the prosecution was afraid that defense counsel would be reluctant to call his former law partner as a witness. The court also informed the defendant that a potential conflict of interest could arise between former partners where one partner is defense counsel and the other partner is a witness. Id. There is, however, a cognizable difference between the impact on a defendant’s knowledge of informing him that a conflict may exist and may result in the failure to call a witness, versus the impact on his knowledge when he is informed that a conflict may arise and may result in the preclusion of a defense in his favor. The latter more clearly apprises the defendant that the risk involved may directly impact the outcome of his case.

Both Commonwealth v. Davis, 309 Pa.Super. 297, 455 A.2d 168 (1983), and Commonwealth v. Evans, 306 Pa.Super. 25, 451 A.2d 1373 (1982) are cases involving clear conflicts of interest arising from inconsistent defenses. In each case, however, as in Cuyler v. Sullivan, supra., there was no pre-trial colloquy addressing and informing the defendants of the risks involved with joint representation. In Commonwealth v. Kelly, 316 Pa.Super. 438, 463 A.2d 444 (1983), this Court confronted a situation where there was a pre-trial colloquy addressing the dangers of joint representation. The distinguishing characteristic of Kelly, as pointed out by this Court, is that the colloquy may not have adequately informed the defendant of the nature of the potential conflict because the full disclosure that is required may have been impossible in light of the requirement of secrecy surrounding a grand jury proceeding. Id., 316 Pa.Superior Ct. at 448, 463 A.2d at 446. The other cases cited by Appellant in support of his position are also inapposite. In Bush v. U.S., 765 F.2d 683 (7th Cir.1985), State v. Clay, 474 So.2d 447 (La.App. 4th Cir.1985) and Smith v. State, 172 Ga.App. 6, 321 S.E.2d 771 (1984), the courts were not concerned with the issue of whether a defendant was inadequately informed as a result of either no pre-trial colloquy, or an inadequate colloquy.

We find that Szekeresh made a knowing and intelligent waiver. Moreover, we find that the pre-trial colloquy, after which he made a knowing and intelligent waiver, adequately informed him of the specific risks involved in joint representation. Thus, we find that his claim of ineffective assistance based upon the alleged conflict of interest does not supersede the knowing and intelligent waiver because he was adequately informed of the specific risk involved. Accordingly, we affirm the Order denying a post-conviction hearing.

Because of our disposition of Szekeresh’s first issue, we find it unnecessary to address his second issue of whether the trial court erred in denying him the opportunity to present evidence to support his recusal motion and in denying that motion.

Order affirmed.

      . 42 Pa.C.S. § 9541 et seq.


author: HOFFMAN, Judge:

text:
    515 A.2d 609
    COMMONWEALTH of Pennsylvania v. Eugene W. MORGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 14, 1986.
    Filed Sept. 25, 1986.

      John A. Halley, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

      Before WATKINS, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from an order denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant contends that the lower court erred in denying post-conviction relief without a hearing and without the appointment of counsel. We find that this contention has merit and, therefore, reverse the lower court’s order and remand the ease for proceedings consistent with this opinion.

In June of 1964 appellant pleaded guilty to numerous counts of burglary. Appellant was sentenced to two-and-one-half-to-five years imprisonment and two consecutive terms of twenty years probation. No appeal was filed. In 1968, appellant filed a pro se PCHA petition. Counsel was appointed to represent appellant, but he neither entered an appearance nor amended appellant’s PCHA petition. After the Commonwealth had answered, but before the lower court took any action, appellant withdrew the petition. In 1977, appellant filed a second pro se PCHA petition and a petition to withdraw his guilty pleas. The lower court ordered the Commonwealth to show cause why a hearing should not be granted, but did not appoint counsel to represent appellant. The Commonwealth filed an answer to the petition, but the record does not reveal any further action in connection with either the PCHA petition or the petition to withdraw the guilty pleas.

In 1984, appellant’s probation was revoked as a result of another conviction, and he was sentenced to imprisonment for two-and-one-half-to-twenty years to run consecutive to any sentence then being served. Appellant filed a pro se petition to withdraw his guilty pleas to the 1964 charges. This motion was denied without the appointment of counsel, a hearing or an opinion by the court. No appeal was taken from that order.

In October 1984, appellant filed the instant PCHA petition. This petition was also filed pro se. As in his prior PCHA petition, appellant contends that his confession was coerced, that his statements were made without the assistance of counsel, that his guilty pleas were unlawfully induced, that he was unaware of his rights at the time of his guilty pleas, that he was denied effective assistance of counsel, and that he was denied his right to appeal.

The lower court denied the instant PCHA petition without the appointment of counsel or holding a hearing, finding that it was “patently frivolous” and that the issues raised had been waived. See Order of December 12, 1984. Appellant filed a timely appeal and counsel was appointed to represent him.

Appellant contends that the lower court erred in dismissing the instant PCHA petition without appointing counsel and holding a hearing. We agree. A pro se PCHA petition may not be summarily dismissed unless a previous petition involving the same issue or issues has been finally determined adversely to the petitioner in a counselled proceeding or one in which he or she voluntarily waived the right to assistance of counsel. See Pa.R.Crim.P. 1503, 1504. See also Commonwealth v. Finley, 497 Pa. 332, 334 n. 1, 440 A.2d 1183, 1184 n. 1 (1981); Commonwealth v. Sawyer, 355 Pa.Superior Ct. 115, 120-121, 512 A.2d 1238, 1240 (1986); Commonwealth v. O’Nealel, 315 Pa.Superior Ct. 1, 6, 461 A.2d 318, 320 (1983).

The proper procedure is for the trial judge to make a determination as to the indigency of the petitioner, and, if the petitioner is found to be indigent, the trial judge should appoint counsel to assist in the preparation of an amended PCHA petition. See Commonwealth v. Finley, supra; Commonwealth v. Davis, 328 Pa.Superior Ct. 321, 323, 476 A.2d 1351, 1352 (1984); Commonwealth v. Hicks, 321 Pa. Superior- Ct. 545, 548, 468 A.2d 1123, 1124 (1983). If counsel is appointed, but does nothing, that proceeding must be deemed to have been uncounselled. See Commonwealth v. Miller, 325 Pa.Superior Ct. 163, 165, 472 A.2d 698, 699 (1984). Reversal for failure to appoint counsel is necessary whether the current petition is appellant’s first or is one of a number of petitions. See Commonwealth v. Miller, su pra; Commonwealth v. Cochran, 261 Pa.Superior Ct. 236, 239, 396 A.2d 375, 376 (1978).

Here, appellant was clearly uncounselled for his second and third PCHA petitions. Inasmuch as counsel was appointed in connection with appellant’s first PCHA petition but did nothing, that proceeding must also be deemed to have been uncounselled. See Commonwealth v. Miller, supra. In view of appellant’s uncounselled status for all of his PCHA petitions, failure to appoint counsel and hold a hearing in connection with this petition was error. Only after counsel has had an opportunity to review and amend the petition, assuming appellant was indigent, should a decision on the merits be made. See Commonwealth v. O’Nealel, supra.

Accordingly, we reverse the order dismissing appellant’s PCHA petition. As counsel has been appointed, we remand the case to give counsel an opportunity to amend appellant’s PCHA petition before the lower court. The lower court should then decide whether to grant a hearing.

Order reversed, case remanded. Jurisdiction is relinquished.


author: HESTER, Judge:

text:
    515 A.2d 611
    COMMONWEALTH of Pennsylvania v. John Albert BLOOD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 11, 1986.
    Filed Sept. 26, 1986.

      Robert G. Kochems, Assistant Public Defender, Mercer, for appellant.
    Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Appellant challenges his sentences for burglary and escape alleging that the trial court abused its discretion in failing to consider appellant’s schizophrenia and recent progress in treatment of his mental illness as mitigating factors justifying a more lenient sentence. We hold that the sentences reflect a proper exercise of the discretion reposed in the sentencing court, and affirm the judgment of sentence.

Appellant, John Blood, escaped from prison in Mercer County on June 16, 1984. To aid his escape, he burglarized a house to obtain keys to a truck parked outside, stole the truck and fled to Illinois, where he was apprehended. Pursuant to a plea agreement, appellant pled guilty to escape and burglary; in return, the Commonwealth nolle prossed other charges against him.

Appellant’s sole argument is that the sentencing judge did not give due consideration to his severe mental problems. He claims the sentence “was an abuse of discretion because it is excessive in length and not tailored to the specific needs of the defendant, the ends of justice, or the community’s welfare.” Brief for appellant at 7. He claims that “a relatively short period in a minimum security facility with a mental health treatment program and then a long period of parole which would insure his compliance with out-patient mental health treatment” would have been an appropriate sentence. Id. at 8-9.

We reject this argument for two reasons. First, contrary to the belief of appellant, id. at 4-5, the Commonwealth, brief for appellee at 4, and the sentencing court, Rule 1925 opinion, 5/13/86, at 3, appellant’s sentence was within the range of the sentencing guidelines. 204 Pa.Code Ch. 303. He received concurrent sentences of three to six years for burglary and two to four years for escape. With a prior record score of six and offense gravity scores of six and four for burglary of a dwelling and escape, respectively, the minimum sentence guideline ranges were 33 to 49 months and 21 to 30 months for the respective offenses. 204 Pa.Code § 303.8. Appellant benefitted from the court’s use of an offense gravity score of five for the burglary, when the score should have been six for burglary of a dwelling.

Of greater significance was the sentencing court’s misunderstanding of the guidelines’ provision on sentencing for convictions arising out of the same transaction. The court recognized that when imposing multiple sentences for multiple convictions arising out of a single criminal episode, the guidelines might impose special rules of application. The court’s solution was to sentence first for burglary; in doing so, it computed appellant’s prior record and offense gravity scores, then ascertained the guideline range before imposing sentence. The court then followed the same procedure in sentencing appellant for escape, but used a prior record score of zero “since he was being sentenced thereon at the same time as the burglary.” Rule 1925 opinion, 5/13/86, at 3. This was an apparent, but erroneous application of 204 Pa.Code § 303.6(a).

Section 303.6(a) provides:
§ 303.6. Consecutive sentences.
(a) When imposing consecutive sentences for convictions arising out of the same transaction, the prior record score is computed for the offense with the highest offense gravity score in such transaction. For the remaining offenses in such transaction, the prior record score shall be zero.

The foregoing rule is an exception to the procedure generally followed in determining guideline sentences. The general rule is stated in 204 Pa.Code § 303.2:

§ 303.2. Procedure for determining the guideline sentence.
The procedure for determining the guideline sentence shall be as follows:
(1) Determine the prior record and offense gravity scores as described in §§ 303.7 and 303.8____
(2) Refer to the Sentence Range Chart in § 303.9____
(3) Determine if aggravating or mitigating circumstances apply, as described in § 303.3____
(4) Select a sentence from the Sentence Range Chart as listed in § 303.9____
(5) Determine if a deadly weapon was used in the offense and apply the provisions of § 303.4____

Thus in determining any sentence, the usual procedure is to begin with a defendant’s prior record score. Unless an exception applies, the prior record score is based on the defendant’s prior record; in this case, six. The only exception in the guidelines is “when imposing consecutive sentences for convictions arising out of the same transaction,” an exception not applicable in this case. Inasmuch as the court was imposing concurrent sentences, there was no reason to use a prior record score of zero for the escape conviction; appellant’s prior record score of six was proper for both crimes. Both sentences were thus in the middle range of minimum sentences under the guidelines and required no special statement of reasons for deviation from the guidelines. 42 Pa.C.S. § 9721(b).

Second, in the event the sentences had exceeded the guidelines as appellant argues, the court’s explanation of the reasons therefor satisfies the requirements of 42 Pa. C.S. § 9721(b), and the sentences which were imposed were well within the discretion afforded a sentencing court.

Imposition of sentence is within the sound discretion of the sentencing judge and will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 255, 416 A.2d 455, 457 (1980); Commonwealth v. Spencer, 344 Pa.Super. 380, 394, 496 A.2d 1156, 1164 (1985). “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934); Commonwealth v. Spencer, supra, 344 Pa.Superior Ct. at 394, 496 A.2d at 1164. There is no such unreasonableness, partiality, prejudice, bias or ill-will evident in the record.

Opposed to appellant’s argument for lenity were a number of factors justifying the substantial term of imprisonment which was imposed. Appellant is twenty-two years of age. He had two serious felonies as a juvenile—burglary for which he was placed in a juvenile home; the other an aggravated assault on a child care worker for which he was placed in a youth development center in New Castle, Pennsylvania. Appellant’s adult record includes theft in Warren, Pennsylvania, for which he was sentenced to the State Regional Correctional Facility in Mercer for one to two years; and theft of a motor vehicle in Sheffield Township, which resulted in the same sentence. There was another theft by unlawful taking in Meadville, Pennsylvania, for which he was placed on one year’s probation and a prior escape from a correctional institution in Erie, Pennsylvania, to which he pled guilty and was sentenced to one to two years in a state institution.

The sentencing judge noted appellant’s recidivism—this was his second escape from a state correctional institution—as well as the fact that this escape led to a burglary and a multi-state search. The court also considered two convictions for theft which were not reflected in the prior record score, which totaled the maximum of six without including the theft convictions. See Commonwealth v. Duffy, 341 Pa.Super. 217, 224, 491 A.2d 230, 233 (1985); Commonwealth v. Lupatsky, 341 Pa.Super. 338, 342, 491 A.2d 845, 847 (1985). Finally, the court referred to a psychiatric evaluation which indicated that appellant remained impulsive and lacking in judgment. We hold that these reasons warrant the sentence imposed on appellant.

Judgment of sentence affirmed.


author: DEL SOLE, Judge:

text:
    515 A.2d 917
    Ceasar Francis BENSON v. Georgiane L. BENSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1986.
    Filed Aug. 20, 1986.
    Reargument Denied Oct. 14, 1986.

      Toni M. Cherry, DuBois, for appellant.
    Dwight L. Koerber, Jr., Clearfield, for appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

Appellant (wife) appeals from the final decree issued by the trial court on matters of equitable distribution and counsel fees, which followed the entry of a bifurcated divorce.

Prior to a discussion of the issues raised by Appellant we must first address a procedural matter which Appellee (husband) argues results in a waiver of all claims wife seeks to pursue on appeal. A brief look at the procedural background of this case is necessary to examine this waiver claim.

A divorce décree was entered on the consent of both parties in June of 1983, while the court reserved jurisdiction over the remaining economic issues. A master, who was appointed to hear these remaining issues, held a hearing and in November of 1984 issued a report and proposed order. Wife apparently satisfied with the report and proposed order, filed no exceptions. Exceptions were, however, filed by husband. Thereafter, the court was presented with memoranda, briefs and argument on husband’s exceptions. On August 2, 1985, the court issued a memorandum and the following decree:

Now, this 2nd day of August, 1985, the exceptions of the (husband) are dismissed and the recommendations of the master are adopted by the Court, with the exception that (husband) is not ordered to pay any portion of the (wife’s) counsel fees. Record costs, including masters fees, are to be paid equally by both parties. Distribution of the marital property is ordered in accordance with the masters recommendations except that the portion of the (husband’s) Tier II pension benefit to be paid to the (wife) is set at 37.5%. Said amount to be paid to (wife) monthly, directly from the Railroad Retirement Board beginning in the month of September, 1985, and continuing for as long as Plaintiff remains eligible to receive his Tier II benefits. It is ordered that the one hundred dollar ($100.00) per month credit to be given to the (husband) based on the (wife’s) occupancy of the marital home, which is to be deducted from the (wife’s) share of the net proceeds from the sale of the home is to be calculated as commencing with the month of November, 1982. The sale of the home is to be carried out as soon as possible.

Appellant then filed this appeal asserting the court erred in its selection of dates for the commencement of her share of pension benefits, and for the commencement of her rental payment obligations. She also alleges the court erred in denying her attorney fees.

Husband contends wife’s failure to file exceptions to either the master’s report or the court’s final decree constitutes a waiver and precludes wife from seeking judicial review of the merits of this case.

We hold no exceptions need be filed to preserve for appeal issues which claim the trial court erred when, in response to the opposing party’s exceptions, it entered a final decree which altered the terms of the master’s report and proposed order.

Rule of Civil Procedure 1920.55 provides support for this ruling. It states:

(a) Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters.
(b) If no exceptions are filed to the master’s report within the ten-day period, the court shall review the report and if approved shall enter a final decree.
(c) If exceptions are filed, the court shall hear argument on the exceptions and enter an appropriate final decree. No Motion for Post-Trial Relief may be filed to the final decree.

Pa.R.C.P., Rule 1920.55, 42 Pa.C.S.A.

This rule requires a party who is dissatisfied with a master’s report to file exceptions to the report, or waive any such objections. On the other hand, logic dictates that a party who is satisfied with the report need not except to it. When the trial court alters the terms of the report in response to the opposing party’s exceptions, Rule 1920.55(c) provides no motions for post-trial relief may be made. Accordingly, the only occasion to raise objections to this final decree is through a direct appeal, and any issues which claim the court’s ruling was erroneous are preserved because they are raised at the first available opportunity.

Appellant’s first claim is waived under the above analysis because the trial court in establishing a date for the commencement of her share of husband’s pension benefits did not alter the recommendations of the master’s report. On appeal, Appellant asserts these payments should be made retroactive to September 1983, in accordance with the 1983 Amendment to the Railroad Retirement Act, and not commence in September of 1985 as ordered by the trial court. The master’s report, however, did not suggest the payments should be made retroactive. In fact the report and proposed order suggest the payments will be prospective and take effect at the time the order becomes final. The report states: “Plaintiff’s Tier II benefit is $470.72 per month and the Master recommends that $180.00 of this amount be paid directly to the Defendant from the Railroad Retirement Board as long as Plaintiff remains eligible to receive his Tier II benefits.” The proposed order reads: “The Railroad Retirement Board is directed to pay the amount of $180.00 per month of Plaintiff’s Tier II Railroad Retirement directly to the Defendant so long as Plainiff remains eligible to receive this benefit.” We read these terms as making payment due upon signing the order. They do not provide for any back payments. The trial court order dated August 2, 1985 does not provide for retroactive payments, and is consistent with the terms of the proposed order. If Appellant was unsatisfied with these terms she should have filed an exception to the master’s report.

The remaining two issues are preserved because they have been raised at the first available opportunity.

The first concerns the trial court’s choice of a date when Appellant shall become responsible for $100.00 monthly rental payments. In response to husband’s exceptions the trial court ordered that such payments were to be calculated commencing with the month of November 1982, the date the wife began to receive mortgage payments from husband under a court order. In contrast the master’s report and proposed order did not reflect this retroactive payment. Appellant’s objection to this calculation is therefore preserved for our review.

In considering Appellant’s allegation of error we are mindful that a trial court may exercise its discretion in equitable distribution of marital property and this decision will not be disrturbed on appeal absent an abuse of discretion. Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983). The order in question coincides Appellant’s responsibility for monthly rental payments, with the date husband began making monthly payments to wife to preserve the marital estate. We do not perceive this decision to be an abuse of discretion.

Likewise we cannot say the trial court erred in refusing to award wife counsel fees. A determination to deny or award counsel fees is to be made on a case by case basis after analyzing all relevant factors including the party’s ability to pay, the separate financial situation of the opposing party, and the character, situation and surroundings of both parties. Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985). Reasonable fees are to be paid when such will promote the administration of fair and impartial justice by placing the parties seeking a divorce on par in defending their rights. Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1037 (1976). Further, an abuse of discretion standard of review applies to the court’s action concerning counsel fees. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

The record indicates the master made a recommendation that counsel fees be awarded based on husband’s dilatory conduct which resulted in wife incurring additional legal expenses. The trial court remarked it was not “prepared to say that the (husband) was considerably more uncooperative than the (wife)”. The court stated: “We note that several continuances were granted at the (wife’s) request, that she refused to cooperate in acquiring an appraisal of the jointly owned home, and was clearly contradictory and uncooperative in revealing her true income.” The trial court concluded neither the economic situation of either party, nor the equities of the case supported an award of counsel fees. This decision was based upon equitable consideration of the facts in the record, and was not an abuse of discretion.

Order affirmed.


author: POPOVICH, Judge: .

text:
    515 A.2d 920
    Harry B. MOHN and Helen Mohn v. HAHNEMANN MEDICAL COLLEGE AND HOSPITAL OF PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued April 8, 1986.
    Filed Aug. 25, 1986.
    Reargument Denied Oct. 14, 1986.

      David P. Bruton, Philadelphia, for appellant.
    Marshall A. Berstein, Philadelphia, for appellees.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge: .

This is an appeal from a four-million dollar judgment entered against Hahnemann Medical College and Hospital of Philadelphia. We reverse.

We are asked by Hahnemann to review the denial of its motion for a new trial. In doing so, we must decide whether there was an abuse of discretion or error of law committed by the trial court which controlled the outcome of the case. Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967).

So viewed, the evidence reveals that Harry B. Mohn admitted himself to Hahnemann Hospital, upon the advice of his physician, for the evaluation of certain neurological problems. Tests were conducted and indicated that he was suffering from cervical spondylosis, an arthritic condition of the neck. In an attempt to stabilize his condition and prevent the progression of his arthritis, surgery was performed.

No one disputes that the services performed by the hospital before, during and after the operation, up to a point, were medically proper. The matter in dispute concerns the medical care provided to Mohn between 2:00 a.m. and 6:30 a.m. on the 11th of May, 1973. During this period, Mohn was in the hospital’s intensive care unit following surgery, and, sometime between 6:00-7:00 a.m., he suffered a “respiratory arrest”. He was resuscitated after an emergency code call, but became quadriplegic (paralyzed in all four limbs) immediately subsequent to the respiratory attack. Thereafter, he improved somewhat to his present, permanent condition diagnosed as quadriparesis (weakness in all limbs). Also, Mohn sustained a visual impairment which inhibits his vision to the area above an imaginary equator across his eyes. Further, Mohn contracted speaking and swallowing problems, a condition related to his pseudo-bulbar (muscular control) palsy, from the arrest and the efforts to resuscitate him.

At trial, Mohn’s expert testified that his review of the record indicated that the hospital’s failure to act in the face of certain information, e.g., detection of decreased urine output by Mohn, x-ray findings (which showed early pulmonary edema—fluid in the lungs) and blood results between 2:00-3:00 a.m.—which were abnormal and demonstrated development of metabolic acidosis (inability of heart to pump fluid to kidneys), was not in accordance with accepted medical practice. This “do nothing” approach, opined the expert, precipitated a deterioration in Mohn’s condition and led to the respiratory arrest, a result which could have been avoided had appropriate measures been taken early on.

The hospital, through its experts, contended that it did not depart from accepted medical practice, and that Mohn’s infirmities (motor problems—weakness in all four extremities, loss of sensation, spasticity, etc.) were “nothing other than the natural progression of his pre-existing disease.” As for the arrest, it was the opinion of the hospital’s experts that, rather than caused by the congestive heart failure, it was attributed to “probably mucous plug aspiration possibly on top of some underlying soft tissue.” As properly characterized by Mohn in his brief to us, the case reduced itself to a “battle of experts” on the issues of negligence and causation. The jury, after hearing from all sides, and being instructed by the court on the law, returned a verdict in favor of Mohn and his wife (for her loss of consortium claim) in the amount of $1,776,000.00 and $1,175,000.00, respectively. Pursuant to Pa.R.Civ.P. 238, damages for delay were added and the verdicts were molded to $2,440,175.33 for Mohn and $1,614,417.80 for his wife. Post-verdict motions were filed and denied. After the verdict was reduced to judgment, this appeal followed.

Hahnemann Hospital complains that the trial court committed reversible error in allowing its expert witness (Dr. Urbach) to be cross-examined with regard to his receipt of fees for medical-legal cases other than the one being tried, and cites Zamsky v. Public Parking Authority of Pittsburgh, 378 Pa. 38, 105 A.2d 335 (1954) in support of its contention.

The trial court attempts to minimize Zamsky by labelling it an “outdated and questioned decision” that, at best, should be restricted to its facts.

At the outset, be it known that, regardless of the vintage of a case or its attack by legal scholars in their erudite treatises on the state of the law, in the final analysis it is for the highest court in this jurisdiction to decide when and to what extent, if any, a case has lost its vibrancy so as to signal its demise. No trial court is to usurp this function under the guise of changes presaged by the winds of judicial time, marked by the shifting tides of legal thinking. See Concurring Opinion of Chief Justice Nix in Commonwealth v. Brady, 510 Pa. 123, 136, 507 A.2d 66, 72 (1986) (“Regardless of how laudable the trial court’s intentions may ... be[ ], ... its unauthorized refusal to apply existing law cannot be tolerated. To permit such a practice will throw the administration of justice and the expectations of litigants into utter confusion.”).

It is interesting to note that both sides draw differing conclusions from the Zamsky decision, one approving of the questioned cross-examination and the other denouncing it as violative of established Pennsylvania law. We will lay this divergence of opinion to rest now.

In Zamsky, property was acquired by a public authority, and the compensation offered to the tenants was challenged in court and resulted in a verdict in their (tenants’) favor. On appeal, the Supreme Court reversed and awarded a new trial because the court below permitted the authority’s expert to be interrogated concerning fees acquired over more than five years for “services rendered” to the authority in its acquisition of numerous pieces of property. Objection was made but overruled, and the witness-expert testified to the fees received and anticipated in the future from the authority. The Court concluded:

Thus the plaintiffs got before the jury that for services not rendered on the trial of this case (except in part) the firm of the expert witness had been paid $17,866.32, and in the future expected to receive $7,500 to $8,100. Thus error was thrice compounded, as we have said, and in addition consisted in admitting what the witness earned, not as an expert witness, but for general services to the Authority. This examination was clearly prejudicial error which must have contributed to the large verdicts for the plaintiffs.
It is entirely proper to inquire of an expert witness what his fees are for testifying in the case on trial. Commonwealth v. Simmons, 361 Pa. 391, 403, 65 A.2d 353; Grutski v. Kline, 352 Pa. 401, 404, 43 A.2d 142; Reed v. Philadelphia Transit Co., 171 Pa.Super. 60, 62, 90 A.2d 371, 33 A.L.R. 1166. But none of the reported cases go to the length that was permitted here, and in overruling the appellant’s objection the court abused its discretion. The earnings of the expert witness from other services performed for the defendant were a purely collateral matter and the testimony thereon was not admissible to affect his credibility.

The judgments are reversed and new trials ordered. 378 Pa. at 40, 105 A.2d at 639. Instantly, as in Zamsky, the expert was permitted to be cross-examined as to the fees he earned, other than as an expert for the defense.

In particular, the scenario begins with counsel for the Mohns/plaintiffs having Exhibit P-30 (the complete financial records of Dr. Urbach) marked for identification. This was permitted over the objection of defense counsel. Dr. Urbach explicated that:

... the filing system in [his] office is that whoever pays the bill has a ledger card of his or her own, whether it’s an agency or an individual or whatnot. If the bill was paid by an agency, that would be a ledger card, if the bill was paid by a law firm, that would be a ledger card.
Now, in these ledger cards, there are, of course, payments for legal reports, appearing in court, examining patients for legal purposes. They are also payments for patients treated, patients evaluated. In other words, patients that were taken care of, treated medically, hospital bills, for whatever reason, were paid by an agency or a law firm. So that all these ledger cards, all these dollar amounts and all these dates do not just refer to medical reports, appearance in court, or that kind of thing. They also refer to treatment of patients, consultations at the request of other physicians, and what-have-you, so long as the bill was paid by an agency or by a law firm.

When Dr. Urbach was asked if the ledger cards produced were all of medico-legal cases, he answered that it depended on counsel for the plaintiffs’ definition of the term. Counsel’s offer that he considered the instant suit such a case was rejoined with an example by the doctor that a bill for whom a person became sick on the job and necessitated a pacemaker was included in his ledger cards. As it was, the bill was paid by an attorney after the implant surgery and the patient’s return to work.

To counsel for the plaintiffs’ question as to whether he had tabulated the figures for any of the years represented by the ledger cards, the doctor stated he had not done so. Counsel then advised the doctor that during the morning session of the trial, his (counsel’s) secretary had added the amounts starting with the year 1979. At this point, defense counsel’s objection to the admission of such figures was overruled, and plaintiffs’ counsel was permitted to read the five yearly tabulations collated from the cards, i.e., for 1979 the amount was $54,652; for 1980 the figure was $59,832; for 1981 the total was $108,636; for 1982 the calculation was $124,507; and for 1983 (up until the trial date) the breakdown came to $55,165.

No one disputes that Zamsky approves of cross-examining an expert as to the amount of his compensation for testifying in the case on trial. This same thinking has been extended to permit inquiry into a physicians personal friendship with a party to a suit or a party’s attorney so as to expose his interest in or bias towards either side of the lawsuit. Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973). In this regard, we find proper the trial court’s allowance of the plaintiffs’ query about the existence of the financial relationship between Dr. Urbach and defense counsel’s firm, which spans approximately twelve (12) years and is still extant as evidenced by some thirty (30) cases in which the two are still actively involved.

We do not believe, however, that the case law in this jurisdiction would condone the type of extensive disclosure of an expert’s fee generating cases, especially since they were not related to the case at bar (except tangentially) nor were all of them, to coin a phrase utilized by the parties, “medico-legal” cases. There must be, and is, a point beyond which inquiry is/will be held to be prejudicial, too intrusive and only serving to divert the case into collateral matters. The inquiry should not be allowed into these other cases.

As first observed by this Court, a little less than half a century ago, questioning a witness as to the amount of remuneration he was to receive for testifying in a personal injury case was held to be “competent”, even though it might have had only a nominal effect upon his impartiality. This was so because the jury was entitled to weigh his testimony in light of his relation to the party calling him. Duffy v. Griffith, 134 Pa.Super. 447, 4 A.2d 170 (1939). Thus, inquiry was not to be unbridled, but, rather, it was to be allowed “within reasonable limits” so as to bring to the fore a medical witness’ compensation for testifying.

Six years later, in Grutski v. Kline, 352 Pa. 401, 43 A.2d 142 (1945), our Supreme Court found that a jury’s award against a rear-seat passenger, injured through no fault of her own, may have been prompted by trial errors in disallowing, initially, defendant’s doctors to be asked what compensation they were receiving. Later on in the trial, recognizing the error of its ruling, the court permitted, without cross-examination, counsel for the defendant to state to the jury that the doctors would receive a reasonable amount, based on no prearrangement, of two or three dollars over what a usual witness would receive as a fee. The Supreme Court found the logic from the Duffy decision to be persuasive and quoted from it extensively, especially with regard to limiting, in a reasonable manner, the scope of a witness’ stipend for testifying.

The Court also remarked that:

It was pertinent for the jury to know what arrangements the doctors had made or were contemplating making for compensation for their services in the case and the trial judge’s refusal to require them to testify under oath, and subject to cross examination, constituted substantial error which makes necessary the granting of a new trial.

352 Pa. at 407, 43 A.2d at 144 (Emphasis added).

Following in the footsteps of Grutski and Duffy was Reed v. Philadelphia Transp. Co., 171 Pa.Super. 60, 90 A.2d 371 (1952), wherein this Court found that the prohibition by the trial court of questioning the same doctor who appeared in Grutski, on the subject of recompense for testifying in the case, was reversible error. The appeal’s court recognized that the Grutski and cognate cases should be liberally construed so as not to be interpreted to require that questions on compensation be framed in the exact words of that opinion, as had been erroneously believed by the trial court there. To the same effect see Commonwealth v. Simmons, 361 Pa. 391, 65 A.2d 353 (1949).

Next in line came Zamsky, which we have already discussed and find to be alive and well in Pennsylvania. Accord Profit-Sharing Blue Stamp Co. v. Urban Redevelopment Authority, 429 Pa. 396, 241 A.2d 116 (1968).

As a general proposition, impeachment is interjected into a lawsuit for the purpose of affecting the credibility of a witness. This is accomplished by exposing any interest or bias such an individual may have in the dispute for the trier-of-facts consideration. Price v. Yellow Cab Co. of Philadelphia, 443 Pa. 56, 278 A.2d 161 (1971); 2 Henry, Pennsylvania Evidence, § 811 (1953). However, the field of inquiry is not unbounded; it is limited by the requirement that the question(s) posed be relevant to establishing a witness’ credibility. See 3A Wigmore on Evidence, § 922 at 726 (Chadbourn rev.1970). To exceed the line of inquisition denominated “relevant” runs the risk of exposing the witness or the party on whose behalf he appears to the danger of being unduly prejudiced. See McCormick on Evidence, § 29 at 59 (1972). At bar, as discussed by counsel for the defense, the plaintiffs, in their closing argument, and the trial court, in its charge, characterized Dr. Urbach as a “hired gun” who peddles his expertise randomly and generates a large amount of revenue in the process.

It is true, as made mention of in the trial court’s opinion to us, that Dr. Urbach should be required to “lift his visor so that the jury could see who he was, what he represented, and what interest, if any, he had in the results of the trial, so that the jury could appraise his credibility.” Goodis v. Gimbel Brothers, 420 Pa. 439, 445, 218 A.2d 574, 577 (1966) (Musmanno, J.) (Emphasis added). However, we do not think this encompasses the emptying of one’s pockets and turning them inside out so that one’s financial worth can be open to scrutiny.

Credibility was the question, and the permissible bounds of assailing it were exceeded when the expert’s total income, unrelated (quoting from the trial court’s own citation of Goodis) to the “results of the trial”, was exposed to the jury. See Zamsky, supra. Consistent therewith, we conclude that, under the facts of this case, the nexus between Dr. Urbach’s compensation for all services rendered (which included work for private and governmental agencies, patients and other law firms) from 1979 to 1983, exclusive of those received for work performed for defense counsel’s law firm, and his credibility on the witness stand is tenuous at best. See Downey, supra.

Although a trial court is vested with the authority to set the perimeters of cross-examination, it is subject to having its decision reviewed and reversed if found to be the product of an abuse of discretion. See Grzywacz v. Meszaros, 417 Pa. 51, 208 A.2d 237 (1965). We so find and hold that the challenged evidence was erroneously admitted and prejudicial to the hospital, given the rather large verdict awarded and the hospital’s admitted reliance on Dr. Urbach as a vital witness to its case on the question of liability. In this situation, we need not consider the other alleged trial errors.

Judgment reversed and the case remanded for a new trial. Jurisdiction is not retained.


author: WICKERSHAM, Judge:

text:
    515 A.2d 925
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas KORNICKI.
    Superior Court of Pennsylvania.
    Argued May 14, 1986.
    Filed Aug. 27, 1986.
    Reargument Denied Oct. 20, 1986.

      Andrew E. Demarest, Assistant District Attorney, Philadelphia, for Com., appellant.
    Andrew F. Schneider, Bensalem, for appellee.
    Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.
   WICKERSHAM, Judge:

This is a Commonwealth appeal from the judgment of sentence entered by the Honorable Leonard B. Sokolove of the Court of Common Pleas of Bucks County. A review of the record indicates that the defendant was improperly sentenced. We, therefore, reverse and remand.

On March 18, 1983, the defendant was arrested and charged with one count of driving under the influence in violation of 75 Pa.C.S. § 3731(a)(1). Defendant was arrested after an officer observed him drive through a stop sign, swerve his vehicle from one lane of traffic to another and nearly collide with a bridge abutment. In addition, the defendant failed numerous “field sobriety tests” and tested a .21% blood-alcohol content by breathalyzer examination. The defendant entered a plea of guilty to this charge on November 23, 1983.

On the same day, November 23, 1983, the defendant appeared before Judge Sokolove in a bench trial on an unrelated charge of driving under the influence. That charge arose on July 23, 1983 when defendant was arrested for speeding, driving under a suspended license, and driving under tíie influence in violation of 75 Pa.C.S. §§ 3731(a)(1), (a)(4). Defendant was clocked by a NASCAR unit at 64.2 miles per hour as he traveled down the highway. While in pursuit, the arresting officer observed the defendant lose control of his vehicle several times before apprehending him. The defendant refused to submit to a breathalyzer examination. Based upon the above evidence, the lower court found defendant guilty under that charge.

A sentencing colloquy proceeded thereafter, at which time the Commonwealth offered to the sentencing judge a total of four (4) DUI convictions for consideration. Those offered were two prior convictions of March 15, 1978 and March 21,1981; the guilty plea entered November 23,1983; and the court’s finding of guilt on the same day. See Sentencing N.T. of 11/23/83 at 11. The judge, however, refused to consider the two prior convictions as they occurred before the effective date of the new recidivist provisions of 75 Pa.C.S. § 3731(e). The defendant, therefore, was sentenced to concurrent terms of incarceration of forty-eight (48) hours to twenty-three (23) months on the guilty plea, and thirty (30) days to twenty-three (23) months on the second count.

By a motion to modify and/or reconsider sentence filed December 2, 1983, the Commonwealth raised issue to the sentence imposed in light of the recidivist provisions of 75 Pa.C.S. § 3731(e)(l)(iii) and (iv). The penalty provisions of 75 Pa.C.S. § 3731(e) mandate the following:

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

The Commonwealth averred that the court erred in not considering prior DUI convictions in computing the defendant’s sentence under the statutorily mandated minimums of section 3731(e). Thereafter, on December 22, 1983, the court vacated the sentence of November 23, 1983, pending a hearing and disposition of the Commonwealth’s motion. By order dated January 17, 1984, the court denied the Commonwealth’s motion and reimposed the original judgment of sentence. On January 25, 1984, the Commonwealth filed a notice of appeal.

On appeal the Commonwealth once again contends that the defendant was improperly sentenced under the recidivist provisions of section 3731(e). We agree.

This court has recently stated that “[sjection 3731 ... requires a sentencing court to consider a conviction which had occurred before the new law went into effect in imposing sentence on a subsequent conviction.” Commonwealth v. Kopycinski, 353 Pa.Super. 387, 389, 510 A.2d 365, 366 (1986). In Kopycinski the defendant was found guilty of driving under the influence pursuant to 75 Pa.C.S. § 3731(a)(1). The trial judge sentenced the defendant to undergo imprisonment for a period of forty-eight (48) hours and further ancillary programs. The court refused to sentence the defendant as a recidivist pursuant to section 3731(e) and thus ignored the defendant’s prior drunk driving conviction. The court based its refusal to sentence under the statutory framework on a finding that the recidivist provisions of section 3731 were unconstitutional as ex post facto laws.

We reversed that finding and held section 3731(e) to be constitutional. The panel reasoned that because the section did not transform a previously legal act into an unlawful one, it did not violate the constitutional provisions proscribing ex post facto laws. It did not permit the sentence attending the previous conviction to be increased. It merely notified an offender of what punishment would attend convictions based upon post-amendment violations. It is future criminal conduct that is penalized under the recidivist provisions of section 3731; past conduct is not affected by the new statute.

The Commonwealth is entitled to pursue an enhancement of the sentence entered below. We reverse and remand for resentencing. Jurisdiction is relinquished.

      . We note that the Commonwealth filed a timely appeal eight (8) days following denial of post trial motions and reimposition of sentence. The Commonwealth, thereafter, filed an amended notice of appeal to rectify a clerical error. The Superior Court will treat a defect in a notice of appeal, which erroneously states what final order is being appealed from, as harmless where the appeal is otherwise proper. Commonwealth v. Lahoud, 339 Pa.Super. 59, 488 A.2d 307 (1985) (allocatur denied).

      . We note that by seeking enhancement during the original sentencing proceedings, the Commonwealth has satisfied the due process requisites of Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985). While notice of a prior drunk driving conviction and the Commonwealth's intent to seek a sentence under the recidivist penalties of section 3731 need not be given prior to conviction thereunder, a defendant must be provided notice before sentencing occurs. Id. The Commonwealth has met this mandate. See N.T. of November 23, 1983, at 106.