author: HOFFMAN, Judge:

text:
    471 A.2d 521
    Orpha B. WHITMAN, Executrix of the Estate of Frank R. Whitman, deceased, Orpha B. Whitman, individually, v. Kenneth A. RIDDELL, Robert A. Boinske, Dorothy Ellen Boinske, and The City of Scranton. Appeal of The CITY OF SCRANTON.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1983.
    Filed Jan. 20, 1984.
    Reargument Denied March 9, 1984.
    Petition for Allowance of Appeal Denied Sept. 18, 1984.

      Perry J. Shertz, Wilkes-Barre, for appellant.
    Arthur L. Piccone, Scranton, for appellees.
    Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court committed reversible error in allowing appellee to admit (1) evidence of 36 accidents and (2) correspondence between appellant and the Pennsylvania Department of Transportation. We agree that admitting evidence of the accidents was prejudicial error and, accordingly, reverse and remand for a new trial. We find no merit, however, in appellant’s remaining contention.

This personal injury action arose from a June 6, 1978 accident in which the automobile driven by appellee’s decedent collided with another automobile at the intersection of South Main Avenue and Washburn Street in Scranton. It is undisputed that the intersection’s overhead traffic signal turned green in two directions at one time. Appellee brought suit individually and as executrix of decedent’s estate against the driver and owners of the other car and against appellant, the City of Scranton. A jury trial resulted in a verdict solely against appellant. Post-verdict motions for a new trial were denied, prompting this appeal.

Appellant contends first that evidence of thirty-five prior accidents occurring at the same intersection was erroneously admitted. “To constitute reversible error, a ruling on evidence ... must be shown not only to have been erroneous, but harmful to the party complaining.” Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965). See also Warren v. Mosites Construction Co., 253 Pa.Superior Ct. 395, 403-04, 385 A.2d 397, 401 (1978). Thus, appellant must demonstrate first, that it was error to admit the allegedly irrelevant evidence and, second, that it was prejudiced by the admission of the evidence. We agree that the evidence was irrelevant and prejudicial. In certain circumstances “evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances may, in the sound discretion of the trial Judge, be admissible to prove constructive notice of a defective or dangerous condition and the likelihood of injury.” Stormer v. Alberts Construction Co., 401 Pa. 461, 466, 165 A.2d 87, 89 (1960) (emphasis in original). Such evidence will be permitted “for the purpose of establishing the character of the place where [the accidents] occurred, their cause, and the imputation of notice, constructive at least, to the proprietors of the establishment, of the defect and the likelihood of injury.” Yoffee v. Pennsylvania Power and Light Co., 385 Pa. 520, 542, 123 A.2d 636, 648-49 (1956), quoting Ringleheim v. Fidelity Trust Co., 330 Pa. 69, 71, 198 A. 628, 629 (1938). This limited exception, permitting the introduction of evidence of similar accidents, is tempered by judicial concern that the evidence may raise collateral issues, confusing both the real issue and the jury. Stormer v. Alberts Construction Co., supra 401 Pa. at 466, 165 A.2d at 89.

Here, appellee was permitted on direct examination, over appellant’s objection, to introduce evidence of 36 motor vehicle accidents occurring at the intersection in question from 1965 through 1978. The evidence was limited by the lower court to the “plaintiff’s claim that the City had notice that accidents had occurred at the intersection in question in this case.” (N.T. at 576). On cross-examination, appellant was permitted to inquire as to the causes of 27 of the 36 noted accidents. Appellee claims that the introduction of the number of accidents was necessary to demonstrate that the City should have been generally aware of the dangerous nature of the South Main and Washburn intersection. Appellee’s theory of negligence, however, was that the lack of maintenance of the malfunctioning traffic signal could foreseeably result in accidents. Other accidents occurring at the same intersection from different causes do not necessarily constitute “similar accidents occurring ... under the same or similar circumstances ____” Stormer v. Alberts Construction Co., supra, 401 Pa. at 466, 165 A.2d at 89. In Ferreira v. Wilson Borough, 344 Pa. 567, 26 A.2d 342 (1942), the plaintiff was injured when the car in which she was riding was “jolted” as it crossed over a combination cross-walk/drain in the street. The court noted that “[t]he fact that an automobile was jolted in crossing a certain place in the street indicates little or nothing as to the condition of the street at that point until all the conditions which might have caused that jolt or contributed to it are first shown____” Id., 344 Pa. at 570, 26 A.2d at 344. The court stated further that:

The chief objection to the admission of testimony as to happenings of similar accidents at the same place is that the fact of the accident may admit of being explained by other causes than the one sought to be established.

Id. Similarly, in the instant case, it appears that prior accidents at the same intersection were caused by various factors, none of which would have put appellant on notice that the traffic light in question was defective. See also City Products Corp. v. Bennett Brothers, 390 Pa. 398, 135 A.2d 924 (1957) (proof of other fires at defendant’s work sites excluded because they could have resulted from other causes).

DiFrischia v. New York Central Railroad Co., 307 F.2d 473 (3rd Cir.1962), upon which appellee relies, is distinguishable. There, the plaintiff sought to introduce evidence of eight prior accidents involving nighttime collisions between automobiles and defendant’s trains at a particular railroad crossing. The trial court permitted introduction of the evidence “solely for the purpose of showing that the railroad had notice of the nature of the crossing____” Id. at 476. The circuit court affirmed, finding that the trial court was within its discretion in allowing the evidence to establish “the character of the crossing and notice of it by defendant.” Id. In DiFrischia, the evidence clearly consisted of “similar accidents occurring at substantially the same place and under the same or similar circumstances” as the accident at issue. Stormer v. Alberts Construction Co., supra 401 Pa. at 466, 165 A.2d at 89. Because all of the accidents involved a nighttime collision at a railroad crossing between a car and a train, the defendant should have been on notice that the crossing was dangerous. Here, however, there is no common thread linking all 36 accidents to a malfunctioning traffic signal. Even if the City was put on notice of the generally dangerous nature of the intersection, it does not necessarily follow that it should have been on notice of the defective traffic signal in question. The “general” notice standard to which the defendant in DiFrischia was held differs from the “specific” or “particular” standard to which appellee would hold appellant. Unlike the similar circumstances linking the accidents admitted into evidence in DiFrischia, the prior accidents here resulted from causes wholly foreign to the cause at issue and raise many more collateral issues for the jury to consider. Notwithstanding the court’s limiting instructions, the jury had to consider all of the various causes of accidents at an intersection, without the benefit of a common causation element. See, e.g., Yoffee v. Pennsylvania Power and Light Co., supra (evidence of three prior accidents allowed where all involved a wire strung across a river). Accordingly, we find that the admission into evidence of the 36 accidents was reversible error.

Appellant contends next that the lower court erred in permitting appellee to admit, under the “admission” exception to the hearsay rule, correspondence between appellant and the Pennsylvania Department of Transportation. We disagree. A statement proffered by an out-of-court declarant, “solely for the purpose of proving the truth of the matter asserted,” Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 492-93, 240 A.2d 71, 73 (1968), is inadmissible hearsay and will be admitted only under an exception to the hearsay rule. It has been held that “[ajllegations made in a letter responded to by the other party are considered in the light of declarations or conversations between the parties and as such, properly admissible in evidence.” Tranter Manufacturing Co. v. Blaney, 67 Pa.Superior Ct. 378, 381 (1917) (citation omitted) (letters involving contract between parties). See also Beasley v. Burroughs, 361 F.Supp. 325 (E.D.Pa.1973) (defendant responded to letters without contradicting or denying the factual assertions contained therein; letters held to constitute admissions); Holler v. Weiner, 15 Pa. 242 (1850) (letters permitted as evidence). Here, appellee introduced three letters written to the Mayor of Scranton from various Pennsylvania Department of Transportation officials and an excerpt from the Federal Highway Administration Program Manual on Highway Safety concerning the maintenance of traffic control devices. The letters at issue focused on deficiencies in appellant’s maintenance of many aspects of its traffic safety system, including problems with the City’s maintenance of its traffic signals. On April 12, 1979, the Mayor of Scranton responded to these letters and to the Pennsylvania Department of Transportation’s review, stating that “The City of Scranton will correct their maintenance deficiencies as noted in the TOPICS follow-up review of March 15, 1979 starting on April 16, 1979.” The letter then noted, among other things, that maintenance work would proceed at all the intersections reviewed and would include “replacing damaged visors, cleaning] and replac[ing] damaged lenses, replacing] bulbs, replacing] contact points when needed and oil[ing] moving parts.” Thus, appellant’s response to the letters constituted admissions by appellant. In addition, appellant’s receipt of and lack of response to the Highway Safety Manual excerpt and its accompanying letter is similarly admissible.

We find no merit in appellant’s contention that the admissions exception does not apply because the correspondence at issue was not between the parties. An admission need not be made to the opposing party in order to be admissible. See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 102 n. 9, 337 A.2d 893, 903 n. 9 (1975) (memorandum written by defendant’s agent to defendant’s president admissible as substantive evidence).

Accordingly, because we agree with appellant that the lower court erred in permitting evidence of the prior accidents, we reverse and remand for a new trial.

Reversed and remanded for a new trial. Jurisdiction is relinquished.

      . The accident at issue was apparently one of those included among the 36 mentioned at trial.

      . Once appellee was permitted to introduce evidence of the accidents occurring at the intersection in question, appellant sought to introduce details about the causes of some of the accidents and was partially successful. Contrary to appellee’s assertion that appellant is now arguing the opposite of what it averred at trial, we agree with appellant that once the number of accidents was allowed into evidence, it was necessary, for rehabilitation purposes, to establish that the accidents all resulted from different causes.

      . We do not find appellant’s argument that the April 12, 1979 letter was not a response to the earlier Department of Transportation letters convincing. Both appellant’s failure to reply earlier, and its reply stating that the deficiencies would be corrected, were admissions of traffic signal maintenance problems.

      . Appellant contends also that it was error for the lower court to permit appellee’s expert, Frank Columbo, to testify as to his opinion of the cause of the traffic signal’s malfunction. We find this contention waived. "Issues not raised in the court below are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). In appellant’s post-verdict motions, the City challenged the court’s “allowing Frank Columbo to testify as to his opinion.” Appellant’s brief in support of its motion for a new trial argued that facts contained in the hypothetical question from which Columbo formed his opinion were not supported by the record. However, appellant’s brief before our Court asserts, for the first time, that Columbo should not have been permitted to testify as to the cause of the signal’s malfunction. Because this issue has not been raised below, we need not address its merits.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    471 A.2d 525
    COMMONWEALTH of Pennsylvania v. Anthony S. CELIJEWSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1983.
    Filed Jan. 27, 1984.

      Lewis J. Bott, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   ROWLEY, Judge:

Appellant was convicted, by a jury, of murder in the first degree and arson. He was sentenced to a term of life imprisonment without the possibility of commutation or parole on the murder charge and a consecutive term of ten to twenty years imprisonment on the charge of arson. This direct appeal followed. We affirm.

Appellant was tried on September 14-17, 1981, and found guilty of strangling his wife and setting fire to the building in which she lived. Throughout the trial, appellant conducted his own defense, repeatedly refusing to discuss the facts of the case with counsel appointed to assist him and steadfastly maintaining that he neither desired nor required representation by counsel. Approximately one week prior to trial, on September 8, 1981, the trial judge, the Honorable Arthur D. Dalessandro, thoroughly reviewed with appellant his right to be represented by an attorney and how such representation could benefit him. Judge Dalessandro concluded that appellant knowingly, understanding^ and voluntarily waived his right to the representation of counsel. In accordance with Pa.R.Crim.P. 318, an attorney from the public defender’s office was appointed as standby counsel.

At trial, appellant was permitted and encouraged to confer with standby counsel. He refused. During the closing arguments, standby counsel was permitted to participate on behalf of appellant as amicus curiae. Only after trial did appellant affirmatively ask the public defender’s office to actively represent him. Standby counsel entered his appearance on behalf of appellant and filed post-trial motions. By an opinion and order dated May 19, 1982, the trial court denied appellant’s post-trial motions. Appellant was sentenced on May 25, 1982. This direct appeal followed.

In his appellate brief, counsel presents seven numbered questions. These questions present the following issues:

1. Did the trial court improperly permit appellant to act as counsel on his own behalf?
2. Was appellant denied the effective assistance of counsel?
3. Did the trial court err in admitting Commonwealth’s Exhibits 1 through 42, 49 and 50?
4. Did the trial court err in “objecting” to the manner in which appellant delivered his opening and closing remarks to the jury and in the manner in which appellant examined and cross-examined witnesses while failing to intercede on appellant’s behalf when the Commonwealth similarly failed to follow proper trial procedure?
5. Did the trial court err in denying standby counsel’s motion for a mistrial?

None of these issues entitle appellant to relief.

Appellant’s first argument is without merit. The record is replete with the extensive efforts by the court to suggest, advise and recommend that appellant accept the services of the attorney provided for him. The court fully informed appellant of the many pitfalls of proceeding without counsel, from voir dire to closing argument, stressing that counsel was far 'better prepared to eliminate bias and prejudice from the proceedings than was appellant. Moreover, at every critical stage through which the trial progressed, the court informed appellant that he could or should confer with counsel to gain some better understanding as to what was happening and how he could better conduct his defense. Despite all of the repeated warnings and advice, at every stage of the proceedings until the jury returned its verdict, appellant refused any and all assistance. This case is controlled by Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978). In that case, the Pennsylvania Supreme Court stated:

In the circumstances of this case, we cannot conclude that the trial judge erred in permitting [appellant] to represent himself. The record demonstrates that the judge fully advised [appellant] both of his right to be represented by counsel and of the possible disadvantages of self representation; it also clearly shows that both [appellant’s] waiver of the right to counsel and his assertion of the right to self-representation were knowing and deliberate choices. Cf Commonwealth v. Robinson, 468 Pa. 575,
364 A.2d 665 (1976). Furthermore, the public defender was made fully available to [appellant] for whatever consultation and aid [appellant] might request. Hence, in these circumstances, it would have been constitutional error for the judge to have refused [appellant] his right to represent himself Faretta v. California, [422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1976) ].
Id., 479 Pa. at 283, 388 A.2d at 328 (emphasis added).

Counsel for appellant argues, however, that both before and during the trial appellant was manifestly incapable of adequately defending himself. This argument is, essentially, that the quality of appellant’s self-representation was not a?, good as representation by counsel would have been and that, therefore, the court should have required the active participation of counsel during the trial. However, the United States Supreme Court in Faretta v. California, supra, made the defendant’s legal acumen in such circumstances “irrelevant” for the purposes of determining whether or not appellant properly exercised his right to conduct his own courtroom defense.

We need make no assessment of how well or how poorly Faretta had mastered the intricacies of the hearsay rule and the California Code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself. 422 U.S. at 836, 95 S.Ct. at 2541, 45 L.Ed.2d at 582 (emphasis supplied; footnote omitted).

Therefore, the quality of appellant’s legal performance is immaterial to a determination of whether or not appellant properly invoked and the trial court properly recognized appellant’s invocation of his right to conduct his own defense. In accordance with Commonwealth v. Davis, supra, we have determined that “it would have been constitutional error for the trial judge to have refused [appellant] his right to represent himself.” Counsel’s argument on this point must therefore be rejected.

For similar reasons, we must reject appellant’s assertion that he was denied the effective assistance of counsel. Having properly, and repeatedly, invoked his right to represent himself and having waived the assistance of counsel, appellant cannot now rely upon his own lack of legal expertise as a ground for a new trial. Commonwealth v. Andrews, 282 Pa.Super. 115, 130-131, 422 A.2d 855, 862-863 (1980).

Appellant’s next two claims relate to the trial court’s actions in controlling the progress of the trial and the reception of evidence. Appellant first asserts that the court erred in admitting into evidence, prior to voir dire, Commonwealth’s Exhibits 1 through 42, 49 and 50 without first requiring testimonial authentication or foundation. Appellant also asserts that the trial judge improperly “objected to” appellant’s questions and argument on numerous occasions while failing to “object to” the Commonwealth’s conduct under somewhat analogous circumstances. Appellant thus contends that the trial judge took on the “role of advocate” for the Commonwealth and prejudiced the jury against him.

Initially, we note that these claims have not been preserved for review because there was no contemporaneous objection to the conduct now complained of. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We have considered the claims on their merits, however, and our review of the record discloses no error by the trial judge. The incident concerning the admission of the exhibits, read in context, was in the nature of a stipulation of counsel concerning their admissibility. These exhibits were forty-two pictures and two diagrams. Appellant was given an opportunity to examine the exhibits and to offer any objection he may have had. He did reserve the right to question the Commonwealth’s witnesses concerning the pictures, and later during trial he used some of the pictures during cross-examination and in the presentation of his defense. Moreover, these pictures and diagrams were related to people, places and things with which appellant was personally familiar: himself, his car, his wife, and his wife’s apartment. Finally, almost all of these exhibits were identified and authenticated by testimony of the Commonwealth’s witnesses before being submitted to the jury. Only Exhibits 3, 14 and 17 were not so identified. Because these exhibits were not transmitted to this court with the record, we do not know what they depicted. However, counsel does not argue that the submission to the jury of these three pictures, without more, requires a new trial.

Furthermore, at no time did the trial judge lose the appearance of impartiality. The court did interrupt appellant several times during the course of the trial, but these interruptions were made in a considerate and patient manner. Moreover, the court painstakingly explained to appellant the need for following proper trial procedures and what those procedures were. The court interrupted appellant only in those instances when it became clear that appellant had misunderstood, forgotten or disregarded the court’s instructions and explanations. Thus, the court recognized that it had a “duty to defend the judicial process ... and to keep the trial focused on the narrow issue of guilt or innocence.” Commonwealth v. Africa, 466 Pa. 603, 620, 353 A.2d 855, 863 (1976). The actions taken by the trial judge in this case were limited in scope and properly directed to keeping the trial focused on the issues without in any way hindering appellant’s ability to bring all relevant, and much irrelevant, information before the jury. We therefore reject appellant’s arguments on this point.

Finally, appellant argues that it was improper for the trial court to deny standby counsel’s request for a mistrial. That request was supported by reasons set forth in connection with the other four issues raised on appeal. We have rejected these arguments above and we reject them here as well.

For all of the foregoing reasons, the judgment of sentence is affirmed.


author: HESTER, Judge:

text:
    471 A.2d 529
    Fred LOWENSCHUSS, Appellant v. Beverly P. SELNICK.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1983.
    Filed Jan. 27, 1984.

      Jack M. Bernard and Daniel R. Sherzer, Philadelphia, for appellant.
    Albert Momjian, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and HESTER, JJ.
   HESTER, Judge:

On September 28, 1981, appellee, Beverly Selnick, filed a Complaint in Divorce in the Court of Common Pleas of Montgomery County against appellant, Fred Lowenschuss. The Complaint included ancillary claims for alimony, alimony pendente lite, child and spousal support, child custody, counsel fees, costs and expenses and certain equitable relief. Appellant’s answer to the Complaint contained numerous allegations, the most noteworthy of which was that the parties were never lawfully married due to appellee’s procurement of an invalid Alabama decree for divorce from her first husband, Elliot Bender. Appellant raised this same argument in preliminary objections. The Court of Common Pleas of Montgomery County dismissed the preliminary objections. Appellant’s appeal from said dismissal was quashed by this Court on June 2, 1982.

On October 27, 1981, appellant filed a Complaint in Equity in the Court of Common Pleas of Philadelphia County asserting that, following the parties’ separation, appellee entered his home without authority and removed therefrom several items of personal property which were purportedly solely owned by appellant. Through this Complaint, appellant sought an injunction to bar appellee from his home and to compel her to return the missing property. Pursuant to appellee’s motion to dismiss, a rule to show cause why said Complaint in Equity should not be dismissed was entered against appellant. Following oral argument, the Complaint was dismissed. This appeal followed.

Appellant makes the following arguments: 1) Where the facts of record conclusively establish that the parties have never been lawfully married to each other, a court has no jurisdiction to entertain a claim for divorce; (2) Where the parties are not legally married, thereby negating the court’s subject matter jurisdiction under the Divorce Code of 1980, one party may maintain an equity action as a jurisdictional "saving” action for claims properly brought before equity court in anticipation of the dismissal of the divorce action.

These arguments direct us to decide whether it is proper to maintain an equity action arising out of a marital relationship while a divorce proceeding is pending, which, if subject matter jurisdiction exists, can address the same issue raised in the equity action.

Section 301(a) of the Divorce Code sets forth in general terms the jurisdictional powers of the court in divorce proceedings:

§ 301 Jurisdiction
(a) The courts of this Commonwealth as defined in section 104 shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and, where they have jurisdiction, shall determine in conjunction with any decree granting a divorce or annulment the following matters, where raised in the complaint or the answer and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
(1) The determination and disposition of property rights and interests between spouses, including any rights created by an antenuptial, postnuptial, or separation agreement and including the partition of property held as tenants by the entireties or otherwise and any accounting between them, and the order of any alimony, alimony pendente lite, counsel fees, or costs authorized by law.
(2) The future care, custody and visitation rights as to children of such marriage or purported marriage.
(3) Any support or assistance which shall be paid for the benefit of any children of such marriage or purported marriage.
(4) Any property settlement, involving any of the matters set forth in paragraphs (1), (2) and (3) as submitted by the parties.
(5) Any other matters pertaining to such marriage and divorce or annulment authorized by law and which fairly and expeditiously may be determined and disposed of in such action.
23 P.S. § 301(a).

Rule 1920.43(a) of the Pa.R.C.P. provides the equitable relief necessary to redress the dissipation of marital .property where a divorce proceeding is pending:

Rule 1920.43. Special Relief

(a) At any time after the filing of the complaint, on petition setting forth facts entitling the party to relief, the court may, upon such terms and conditions as it deems just, including the filing of security,

(1) issue preliminary or special injunctions necessary to prevent the removal, disposition, alienation or encumbering of real or personal property in accordance with Rule 1531(a), (c), (d) and (e); or
(2) order the seizure or attachment of real or personal property; or
(3) grant other appropriate relief.

Finally, § 403(a) of the Divorce Code parallels the equitable relief provided in § 301(a)(5) and Rule 1920.43:

§ 403. Injunction against disposition of property pending suit and decree rendering fraudulent transfers null and void
(a) Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached as provided by the Rules of Civil Procedure. The court may also issue a writ of ne exeat to preclude such removal. 23 P.S. § 403(a).

Therefore, it is thoroughly set forth in the Divorce Code that the court presiding over divorce proceedings has the jurisdiction to issue equitable relief in the form of enjoining a party from disposing of marital property prior to adjudication or settlement of the equitable distribution issue. Furthermore, in the event marital property is removed by one party, said party can be ordered to make the property available so that the equitable distribution order or agreement can be implemented. In providing monetary awards and prescribing injunctive relief then, divorce courts are empowered to grant both legal and equitable relief.

Appellant does not deny the jurisdiction of divorce courts over the equitable claim which he filed in equity court. Instead, appellant maintains that a divorce court has no jurisdiction to preside over an issue arising from the conflict between appellee and himself, due to the fact that he and appellee are not married to one another. Appellant directs our attention to appellee’s sworn statements taken during a deposition through which appellee purportedly admitted to the invalidity of the Alabama decree in divorce entered between her and her first husband.

Appellant’s Complaint in Equity, filed in the Court of Common Pleas of Philadelphia County, and his Counterclaim to appellee’s Complaint in Divorce, filed in the Court of Common Pleas of Montgomery County, involved the same parties, pursued identical rights and sought the same injunctive relief. As a result, appellee had available to her a defense of lis pendens to appellant’s equity action. Glazer v. Cambridge Industries, Inc., 281 Pa.Super. 621, 422 A.2d 642 (1980); Taylor v. Humble Oil and Refining Company, 225 Pa.Super. 177, 311 A.2d 324 (1973). However, a mere allegation that a prior action was pending will not carry the moving party’s burden. The moving party must allege and prove that in both actions, “the same parties are involved, the same rights asserted, and the same relief sought.” Procacina v. Susen, 301 Pa.Super. 392, 394, 447 A.2d 1023, 1025 (1982); Commonwealth ex rel. Lindsley v. Robinson, 30 Pa.Cmwlth. 96, 372 A.2d 1258 (1977). This rule was established in Hessenbruch v. Marble, 194 Pa. 581, 45 A. 669 (1900):

A plea of former suit pending must allege that the case is the same, the parties are the same, and the rights asserted and the relief prayed for the same; and, where the truth of the plea can be ascertained by an inspection of the record, the court will determine the question without a reference. Id., 194 Pa. at 593; 45 A. at 671, citing Harrisburg v. Harrisburg City Passenger Ry., 1 Pa. Dist Rep. 192.

Appellee did not specifically allege dismissal on the grounds of lis pendens nor did the lower court address these grounds. Instead, appellee argues that insofar as actions for partition and replevin have been dismissed where a divorce action was pending, citing Kramer v. Kramer, 110 Montg.Co.L.R. 135 (1982) and Ferri v. Ferri, 129 P.L.J. 449 (1981), it is appropriate here to dismiss appellant’s equity complaint due to the aforementioned powers of the Montgomery County divorce court to grant the identical equitable relief.

Appellant has filed six appeals to this Court; five were filed from orders entered by the Montgomery County Court of Common Pleas in the parties’ pending divorce action and this instant appeal was filed from the order entered by the Philadelphia County Court of Common Pleas. Two appeals were quashed in June, 1982 and the remaining four appeals have been addressed by this panel. With the complete records from both Montgomery County and Philadelphia County proceedings at our disposal, we have taken the opportunity to peruse appellant’s Counterclaim in Divorce and Complaint in Equity. Despite appellee’s failure to allege dismissal on lis pendens grounds, we are convinced that the parties’ rights asserted and relief sought were the same. We are inclined, therefore, to find that where the complete records from two actions are available for review by an appellate court, the court can determine for itself whether lis pendens properly precipitates dismissal of the second action. In so holding, we do not sanction a defendant’s failure to allege lis pendens with specificity. Under these special circumstances, however, it would be inappropriate to reverse or remand with instructions to permit appellee’s amendment of her motion to dismiss and to conduct a hearing on the defense of lis pendens.

One issue remains. Appellant argues that Montgomery County has no jurisdiction due to his belief that the depositions unequivocally reflect the invalidity of appellee’s decree in divorce from her first husband, thereby rendering void ab initio the parties’ marriage. Appellant’s preliminary objections to appellee’s Complaint in Divorce included this jurisdictional argument. The Court of Common Pleas of Montgomery County denied the preliminary objections. His appeal therefrom was quashed by this Court in June, 1982. At this moment, the Montgomery County Court of Common Pleas is indeed exercising jurisdiction over the divorce action. Its exercise of jurisdiction over the divorce action and all ancillary claims is, at the moment, with statutory authority. 23 P.S. § 301(a); Pa.R.C.P. 1920.43(a); 23 P.S. § 403(a). Until further order of court, jurisdiction is proper. Whether it remains so may yet be determined following a motion for summary judgment on the deposition, or further appeal to this Court. The jurisdiction of the Court of Common Pleas of Montgomery County to entertain a divorce proceeding is not properly before us in this appeal from the dismissal of an equity action in Philadelphia County. There were two actions with proper jurisdictional basis concerning the same parties, same rights asserted and same relief requested. The lower court properly dismissed the later filed action.

Order affirmed.

JOHNSON, J., concurs in the result.


author: LIPEZ, Judge:

text:
    471 A.2d 533
    COMMONWEALTH of Pennsylvania ex rel. Rita L. FALWELL, v. A.S. DI GIACINTO, Warden of Northampton County Prison. Appeal of Rita L. FALWELL.
    Superior Court of Pennsylvania.
    Submitted March 8, 1982.
    Filed Jan. 27, 1984.

      Margaret H. Poswistilo, Easton, for appellant.

      John D. DiGiacomo, Easton, for appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal from an order denying a petition for habeas corpus, which requested that defendant be released from prison, to which the court below had sentenced defendant after finding her in contempt of court. We reverse the order of the court, vacate the judgments of sentence for criminal contempt and discharge defendant.

On August 7, 1981 defendant, who was not represented by an attorney, appeared in the court below as the defendant in a noncompliance hearing in a support matter. The complete transcript of that proceeding states as follows:

THE COURT: Do you have something there for me?
Have you been looking for work?
THE DEFENDANT: That is my second paper.
THE COURT: Okay.
THE DEFENDANT: I have been speaking to Attorney Mayrosh in the Public Defender’s office. He stated that on behalf of Alcohol Counseling I went to, with him, to the counselor — whatever, and he says that I wasn’t suited for Head Start. He — they still carried this. He told me to say this to you.
THE COURT: Do you want to go into a treatment program?
THE DEFENDANT: It is not necessary.
THE COURT: You have had something to drink this morning, haven’t you?
THE DEFENDANT: Huh?
THE COURT: You have had something to drink this morning?
THE DEFENDANT: Beer.
THE COURT: Do you want to do anything about it?
THE DEFENDANT: It is not anything he can do. He took me up there to the thing — to the treatment. He don’t feel it is worth it.
MR. RIED: I ask that some sort of treatment program be directed. I think she will feel a lot better if she was a productive citizen. I don’t believe this, that she doesn’t need help, and I don’t believe any qualified person has told her.
THE COURT: How many beers did you have this morning?
THE DEFENDANT: About four..
THE COURT: It can be checked out?
MR. RIED: Yes.
THE COURT: I find you in Contempt of Court for showing up in my courtroom inebriated. I place you in the custody of the court officer, and I am going to direct that you be placed under his control. I am going to commit you to Northampton County Prison, and I want them to do a workup on you, and I will determine what we can do to straighten you out. I will not have people coming in here in your condition.
It is not to exceed three months, and if you successfully complete a program, such as they recommend for you, you will be purged of your Contempt. But, right now, I am going to direct that you be taken in his custody over to Northampton County Prison, and I am going to direct that she is to be placed in an appropriate treatment program for her condition.
I can smell the liquor all of the way over here. You don’t want to face up to it, but you have got a problem. If somebody doesn’t do something about it, you have only one way to go.

On the same day as this hearing, the court entered the following order:

AND NOW, this 7th day of August, 1981, the defendant appears before the Court, together with counsel for the Department of Public Welfare, on a petition and rule to show cause why the defendant should not be held in contempt for non-compliance of a pending Court Order. Eo die the defendant is found in contempt of Court for appearing inebriated and is placed in the custody of the Court Officer to be incarcerated in Northampton County Prison for alcohol counseling and evaluation.
Defendant will be purged of her contempt charge upon successful completion of a recommended treatment or incarceration in Northampton County Prison for a period not to exceed three (3) months.
Three days later, the court entered the following order: AND NOW, this 10th day of August, 1981, after a full review in this matter wherein Court finds said defendant cannot participate in drug and alcohol counseling under any security, it is hereby ordered and directed that the said defendant may be released from Northampton County Prison under special probation in accordance with Domestic Relations Probation rules 5-5-81 on condition she admit herself to Eagleville for treatment for a period no less than six (6) months.
In the event the said defendant wishes to leave the institution or does leave the institution prior to completion of the said program, the authorities at Eagleville are directed to immediately notify the Domestic Relations Section, and a Bench Warrant is to issue, and the Domestic Relations Section is directed to take the said defendant into custody and incarcerate her in Northampton County Prison for further disposition by this Court.
It is further ordered in the event she does complete the said program, she will be purged of her pending contempt charge, and further disposition will be made on the pending support matter.

Shortly thereafter, defendant acquired counsel, who filed a petition for habeas corpus on August 19, 1981. The rule was made returnable on August 26, when the judge and defendant’s counsel held a brief on-the-record discussion of the case in chambers. On the same day, the judge entered an order denying the petition for habeas corpus, and on September 18, 1981, defendant filed this appeal. Because we agree with defendant’s contention that the record is insufficient to support a finding of criminal contempt, we need not consider defendant’s other claims.

At the time petitioner was found in contempt, section 4131 of the Judicial Code provided:

The power of the several courts of this Commonwealth to issue attachments and inflict summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

42 Pa.C.S. § 4131, renumbered as 42 Pa.C.S. § 4132 and amended, effective February 18, 1983. Subsections (1) and (2) are plainly inapplicable, so defendant’s contempt conviction can only be upheld if it falls within subsection (3).

In holding that defendant’s being “inebriated” was a proper basis to punish defendant summarily for direct criminal contempt, the opinion of the court below relies on Commonwealth v. Clark, 13 Pa.C.C. 439 (Lackawanna Co. 1893), which states:

It would be a contempt of this court, and I have committed parties for that very reason, for coming here in attendance upon the court in a drunken condition. We have sometimes, unfortunately, some witnesses who do not regard the obligation they are under, and come and take their place in the witness-box drunk. I have committed one man for that, and probably ought to have committed more. I just instance that as bearing upon this question. If a party were to have a case on trial, and an officer of the law were to come here in a drunken condition, I should regard it as a contempt of court. So upon that occasion, if the defendant comes before Aider-man DeLong drunk, not simply, I do not mean to say, being under some influence of liquor, but drunk, as we understood it, intoxicated, so as to really be disorderly from that very circumstance, that would be a contempt, and he would be guilty as charged here.

Id. at 442.

As this passage explicity acknowledges, merely being under some influence of liquor will not by itself constitute contempt. The drunkenness must be such that it obstructs the administration of justice, which means that it must interfere with or disrupt the orderly process of the court. In re Johnson, 467 Pa. 552, 558, 359 A.2d 739, 742 (1976); Commonwealth v. Falkenhan, 306 Pa.Super.Ct. 330, 340, 452 A.2d 750, 755 (1982). It is true that defendant answered “Huh?” to one question, and two of defendant’s answers show a mild degree of incoherence, which is a common phenomenon in hearing transcripts, whether the speaker is inebriated or not. These facts alone hardly demonstrate beyond a reasonable doubt that defendant obstructed the administration of justice. Indeed, the principal evidence that defendant had consumed alcohol comes from defendant’s clear, direct answers to the court’s questions. The record does not show that defendant’s consumption of alcohol before coming to court in any way caused delay or disruption of the hearing, which would constitute a contumacious obstruction of the administration of justice. See In re Johnson, supra; Commonwealth v. Falkenhan, supra.

Order reversed, judgments of sentence vacated and defendant is discharged.

      . How counsel came to represent defendant is not apparent from the record.

      . The District attorney’s office was represented by an assistant DA who stated that his office was taking no position in the matter. The district attorney’s office has not filed a brief in this appeal.

      . Ordinarily defendant would be expected to appeal the judgment of sentence directly, and this appeal might be considered untimely, since it was taken more than 30 days after both the August 7 and August 10 judgments of sentence. Defendant, however, was unrepresented by counsel, and was not told of her right to counsel or of the necessity for appealing so the 30-day period could not begin to run. See Commonwealth v. Dorman, 272 Pa.Super.Ct. 149, 156, 414 A.2d 713, 717 (1979). Moreover, counsel was placed in a dilemma when she entered the case, because there had been no prior opportunity to raise any issues at all before the trial judge. Had counsel simply filed a direct appeal at that point, the issues could no longer be raised before the lower court, which would no longer have jurisdiction. Pa.R.A.P. 1701(a). Neither could the issues be raised for the first time in the appeal to this court. Pa.R.A.P. 302(a). Counsel would then have to argue that the lower court had effectively denied defendant her right to appeal because there had been no opportunity to preserve the issues, and this court would vacate the judgment of sentence and remand so the issues could be raised for the first time before the lower court. Counsel avoided this circuitous process by submitting the issues to the lower court in the petition for habeas corpus, and appealing the denial of the petition to this court. Counsel took the only course open to her in the procedural posture which the judge had placed the case. Cf, Conaway v. 20th Century Corporation, 491 Pa. 189, 196-97, 420 A.2d 405, 409 (1980). We agree with counsel’s argument that the defendant was effectively denied her original right to appeal, and the proper remedy is to treat this appeal as if it were taken directly from the judgment of sentence. Since we treat this as a direct appeal rather than a collateral attack on defendant’s conviction, the appeal is not mooted by defendant’s release from prison, as it would be in the case of a collateral attack. See 42 Pa.C.S. § 9543(2).

      . At one point the opinion of the court below refers to criminal contempt, while at another point it states that defendant was given "what was in effect a civil commitment.” It is clear that defendant was held in criminal contempt, because the dominant purpose of the court below was to vindicate the dignity and authority of the court, rather than to coerce obedience to a court order for the benefit of a private party. Commonwealth p. Marcone, 487 Pa. 572, 577, 410 A.2d 759, 762 (1980). Although the court included some elements similar to civil contempt in both the August 7 and 10 sentences, this did not change the criminal nature of defendant's contempt conviction. See Commonwealth p. Strickler, 481 Pa. 579, 393 A.2d 313 (1978); Commonwealth p. Falkenhan, 306 Pa.Super.Ct. 330, 452 A.2d 750 (1982).

      . Defendant claims she was denied her rights to Miranda warnings, notice of charges and an opportunity to be heard, counsel, appeal, bail, and a fair sentence. Finally, defendant claims that increasing the three-month sentence of August 7 to six months on August 10 constituted double jeopardy. Because the evidence was insufficient to support defendant’s conviction, neither judgment of sentence can stand, and we have vacated both of them.


author: PER CURIAM:

text:
    471 A.2d 537
    John W. LINNET, T/D/B/A Ideal Park Enterprises, Appellant, v. Floyd HITCHCOCK, Jr. and Al Leonzi, T/D/B/A Keystone All-Star Sports Camp.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed Jan. 27, 1984.

      John M. Kuchka, Berwick, for appellant.
    Thomas E. Richie, Bloomsburg, for appellees.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   PER CURIAM:

This appeal arises from an Order dismissing plaintiff-appellant’s exceptions and denying recovery to either party in an action in assumpsit before a judge sitting without a jury.

Appellant, the plaintiff below, John W. Linnet, t/d/b/a Ideal Park Enterprises, instituted the within suit in April, 1980, against appellees, defendants below, Floyd Hitchcock, Jr. and Al Leonzi, t/d/b/a Keystone All-Star Sports Camp. The action arose as a result of an oral agreement entered into by the parties in June, 1979, for the use of Ideal Park, a recreation and camping complex owned by appellant. Appellees used the athletic camp portion of the premises as a sports facility. The conflict concerns the amount of compensation due and owing appellant, relating in particular to the payment of overhead expenses. The lower court, entered a verdict for appellees with respect to appellant’s complaint and in favor of appellant with respect to appellees’ counter-claim. Plaintiff-appellant filed exceptions. The lower court dismissed the exceptions and appellant filed this appeal.

The first issue is whether the indefiniteness of the terms of the parties’ oral agreement precludes its enforceability; otherwise stated, are the terms of the oral agreement certain enough to provide the basis for providing an appropriate remedy? The second issue is whether appellant can recover in quasi-contract.

It is settled that the findings of a trial judge sitting without a jury must be accorded the same weight and effect on appeal as a jury verdict, and will not be disturbed in the absence of an abuse of discretion or a finding of lack of evidentiary support. Brenna v. Nationwide Ins. Co., 294 Pa.Super. 564, 440 A.2d 609 (1982); Johnson Truck Rental Co. v. Fowler-McKee, 281 Pa.Super. 271, 422 A.2d 164 (1980); First Pennsylvania Banking and Trust Co. v. Liberati, 282 Pa.Super. 198, 422 A.2d 1074 (1980). An appellate court, however, is not bound by the trial court’s conclusions of law based on its findings of fact. First Pennsylvania Bank and Trust Co. v. Liberati, supra. It is also clear that the party favored by the findings of the trial judge is entitled to have the evidence viewed in the light most favorable to him; that is, all the evidence and proper inferences favorable to him must be taken as true and all unfavorable inferences rejected. Brenna v. Nationwide Ins. Co., supra. This is particularly true in a case in which the credibility of witnesses must be closely evaluated. Brenna v. Nationwide Ins. Co., supra.

So viewed, the evidence in this case is summarized as follows:

Appellant testified that appellees agreed to pay the overhead expenses of the athletic camp portion of the premises including taxes, utilities, and insurance. He further testified that appellees agreed to pay $1.00 per day per camper for the use of the swimming pool; to reimburse him for food and supplies taken from his inventory; and that partial payments were made to him by appellees for overhead expenses of the camp. Appellees’ testimony contradicted the majority of the allegations concerning the agreement. Appellees stated that they agreed to pay $1.00 per day per camper for the use of the premises and facilities and also to reimburse appellant for the food and supplies consumed. Appellee Leonzi testified that he paid $7.50 per day per camper for use of the same premises, facilities and food service for the camp the previous summer, 1978, in addition to paying $1.00 per day per camper for use of the swimming pool. Appellees also claimed that appellant failed to provide wholesome food, and neglected to complete certain physical improvements on the premises as promised. Both parties gave conflicting testimony regarding the specific duration that the premises and facilities were to be used, and the manner in which overhead expenses during such time would be allocated between them. The lower court found the essential terms of the agreement too uncertain to permit enforcement of the agreement in favor of either party, and also denied appellant reimbursement for certain overhead expenses and appropriated items in the possession of appellees.

The acknowledgment of an agreement by a court does not necessarily require its enforcement. An agreement is an enforceable contract wherein the parties intended to conclude a binding agreement and the essential terms of that agreement are certain enough to provide the basis for providing an appropriate remedy. See Lombardo v. Gasparini Excavating Co., 385 Pa. 388, 123 A.2d 663 (1956); Yellow Coal Co. v. Alma Elly-YV Mines, 285 Pa.Super. 84, 426 A.2d 1152 (1981); Restatement (Second) of Contracts § 33 comments a, b (1981). If the essential terms of the agreement are so uncertain that there is no basis for determining whether the agreement has been kept or broken, there is not an enforceable contract. Restatement (Second) of Contracts § 33, comments a, b.

Based upon our review of the record, we find sufficient evidence to support the lower court’s finding that the essential terms of the parties’ oral agreement were too uncertain to permit the enforcement thereof. We disagree, however, that no basis exists upon which an award in quasi-contract may have been found if all the facts had been fully considered.

The lower court refused to give appellant quasi-contractual relief, and in its opinion sur exceptions stated that appellant would be entitled to recovery on such basis if the court had found appellant’s testimony concerning contractual arrangements credible and none of appellees’ testimony worthy of belief. As earlier noted, appellee Leonzi testified that he paid appellant $7.50 per day per camper in the Summer, 1978, for the use of appellant’s premises, facilities and food service. Appellee Hitchcock also was fully aware of this per diem rate. Our perusal of the record gives us no indication that this testimony was adequately considered in determining that appellant was not entitled to quasi-contractual relief. Though the lower court may properly have given little weight to appellant’s testimony in finding the present agreement unenforceable because of indefiniteness, appellant’s lack of credibility should not have ended the inquiry with respect to a determination of possible quasi-contractual relief. The determination of whether there is an enforceable agreement and whether there is a proper basis for an award in quasi-contract requires distinct inquiries and separate consideration of all the evidence. We find that the lower court failed to do this and therefore committed an abuse of discretion.

Although the original uncertainty remains with respect to the definiteness of the parties’ oral agreement, such that it could not be given legal effect, often the need for a non-contractual remedy arises where one party is unjustly enriched at the expense of the other. Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981); Myers-Macomber Engineers v. M.L.W. Construction Corp. and HNC Mortgage and Realty Investors, 271 Pa.Super. 484, 414 A.2d 357 (1979); Colish v. Goldstein, 196 Pa.Super. 188, 173 A.2d 749 (1961); Restatement of Restitution § 1. In an appropriate case, restitution may be awarded for benefits conferred under an agreement void for indefiniteness. Restatement of Restitution § 40, Comment b, § 47, § 53.

On remand, the lower court should consider, in addition to all other credible evidence, the testimony relating to the Summer of 1978 agreement in determining if appellees were enriched; secondly, in the event it finds any enrichment to appellees, it must consider if it would be unjust to appellant to deny him recovery of the benefit conferred.

The order dismissing appellant’s exceptions is vacated for further proceedings below consistent with this opinion. Jurisdiction relinquished.

      . An oral lease not exceeding three years is outside the ambit of the Statute of Frauds. 68 P.S. § 250.202.

      . In its opinion rendered subsequent to the non-jury trial, the lower court also alluded to possible quasi-contractual relief when it denied appellant reimbursement of certain telephone expenses and the recovery of the value of several items in the possession of appellees. Although a quasi-contract claim was not specifically alléged in appellant’s pleading, the lower court apparently treated appellant’s pleading as sufficient in setting forth a quasi-contractual claim. Likewise, the lower court apparently treated appellant’s exceptions as also raising such a claim. Thus, because the quasi-contract theory of recovery was considered by the lower court, it is properly before us for review. Pa.R.A.P. 302.

      . The doctrine of quasi-contract or unjust enrichment does not require, as sine qua non, the establishment of a contractual relationship. See Zvonik v. Zvonik, 291 Pa.Super. 309, 316-317 n. 4, 435 A.2d 1236, 1240 n. 4 (1981); Colish v. Goldstein, 196 Pa.Super. 188, 191, 173 A.2d 749, 751 (1961).


author: WICKERSHAM, Judge:

text:
    471 A.2d 541
    In re ADOPTION OF Charles OSTROWSKI, a Minor. Appeal of Charles J. OSTROWSKI, Natural Father.
    Superior Court of Pennsylvania.
    Argued May 12, 1983.
    Filed Feb. 3, 1984.
    Petition for Allowance of Appeal Denied May 31, 1984.

      Ernest J. Gazda, Jr., Scranton, for appellant.
    Janet A. Conser, Wilkes-Barre, for appellee.
    John P. Pesota, Scranton, for participating party.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

Appellant Charles J. Ostrowski has taken this appeal from the order of the lower court dated October 4, 1982, supplemented by an opinion and order dated January 6, 1983, terminating the parental rights of appellant to his son, Charles, Jr.

On May 19, 1982, appellant’s former wife, Carol Haynes, who is the child’s natural mother and appellee herein, filed a petition for involuntary termination of appellant’s parental rights. Appellee relied upon 23 Pa.C.S.A. § 2511(a)(1) to establish the grounds for the termination. That section provides:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

23 Pa.C.S.A. 2511(a)(1). A hearing was held on August 5, 1982. The lower court found that appellant had evidenced a settled purpose of relinquishing his parental claims for a period in excess of six (6) months, and by conduct continuing for a period of at least six (6) months, had failed to perform his parental duties. Therefore, the lower court ordered the termination of appellant’s parental rights. This timely appeal followed.

Appellant states the sole issue on appeal as follows: Whether the Record, by clear and convincing evidence, warrants a finding under Section 2511(a)(1) of the Adoption Act that Appellant has evidenced a settled purpose to relinquish his parental rights or that Appellant has refused or failed to perform his parental duties in excess of six months.

Brief for Appellant at 3.

First, we note that our supreme court has recently held that in all proceedings to involuntarily terminate parental rights, the petitioner must prove the statutory criteria for the termination by at least clear and convincing evidence. In re T.R., 502 Pa. 165, 465 A.2d 642 (1983). In the instant case, the lower court applied the required “clear and convincing” standard. Lower ct. op. at 9, 11.

We also recognize that our scope of review in termination of parental rights cases is narrow. In re Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878 (1981), Our review is limited to determining whether the termination is supported by competent evidence and whether the lower court abused its discretion or committed an error of law in granting the termination. Id. We hold that the record in the instant case does not support a finding that the appellant has evidenced a settled purpose of relinquishing his parental claim or that he has failed to perform parental duties. Therefore, we reverse the decision of the lower court.

In Adoption of Baby Girl Fleming, 471 Pa. 73, 369 A.2d 1200 (1977), the Pennsylvania Supreme Court discussed the predecessor to 23 Pa.C.S.A. § 2511. The supreme court stated that the section

has been interpreted as requiring a deliberate decision on the part of the parent to terminate the parental relationship and that parent must persist in that determination throughout the six-month period____ The term “settled purpose” implies a finality of purpose____ In our efforts to determine if such a purpose was present, this Court has required an “affirmative indication of a positive intent” to sever the parental relationship before we have upheld an involuntary termination.
Thus, this Court has held that evidence of parental inaction and lack of interest for six months does not conclusively establish a settled purpose.

Id., 471 Pa. at 76, 369 A.2d at 1202 (citations and quotations omitted).

In the instant case, the record does not establish an “affirmative indication of a positive intent” to sever the parental relationship. The father lived over 800 miles from the child. He visited with his son whenever he was in the Scranton area. He sent gifts and cards on birthdays and holidays. As noted in the brief prepared by appointed counsel for the minor child:

He continued to send the gifts despite his suspicion that the child was not being told who was sending them. He also continued to send money to the Appellee for his child despite her habit of accepting the money and then indicating that she considered it as payment of a prior debt owed to her and not as support for the child. Appellant continued to send these checks to the Appellee until she returned a check to him indicating her intention to refuse •future support. Appellee informed him that she and her new husband did not need his money to support the child. (R. 27a, 58a)
The Appellant maintained Blue Cross/Blue Shield coverage for the child at his own expense and also established a savings account for his son. Such conduct supports a finding that he did not evidence a settled purpose for relinquishing parental claim to his child.

Brief for Minor Child at 4-5.

The lower court seemed to base its decision on two major grounds: the infrequency of contacts between appellant and his son and the appellant’s failure to provide financial support.

The court noted that there were two occasions during which appellant had no physical contact with his son for a period in excess of six (6) months. Lwr. ct. op. at 5. Even where it is established that a parent has failed to perform parental duties for a period in excess of six (6) months “such a finding does not, in and of itself, support an order terminating parental rights.” In re Involuntary Termination of Parental Rights of Geraldine Mae Santelia to Anthony Dino Pellegrino, 318 Pa.Super. 413, 465 A.2d 21 (1983). Rather, the

Court then must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting the involuntary termination of said parent’s parental rights and the adoption____ In deciding this sensitive question, this Court is mindful of the irreversible nature and serious emotional impact which necessarily follow an involuntary termination of parental rights.

In re Adoption of Orwick, 464 Pa. 549, 555, 347 A.2d 677, 680 (1975) (citations omitted).

The individual circumstances of this case together ■ with the explanations provided by appellant indicate that an involuntary termination of appellant’s rights was not warranted. Appellant lived in Georgia, over 800 miles from his son. His employment did not permit him to return to Pennsylvania very often. When he did return to the Scranton area, however, he visited his son. When appellant visited the child, appellee would not permit appellant to remove him from her home. Appellant’s visits were conducted in the living room of appellee’s home in the presence of appellee and her new husband or mother-in-law. Appellant testified that this restricted him a great deal and limited his ability to get close to his son. N.T. at 82. Appellant also testified that although he wanted to change these circumstances, he “played by her rules” because he recognized that the child was well taken care of and he didn’t want to cause any trouble. N.T. at 83. Appellant did not write letters to his son because of the boy’s inability to read. N.T. at 99-100. Appellant did, however, send birthday presents despite his suspicion that his son was not being told who was sending them. N.T. at 100. Appellee testified that the boy does not know that appellant is his father. N.T. at 36. We feel that appellant’s explanations for failing to have more contact with his son, the circumstances of this case, and the restrictions placed upon the appellant by the appellee explain appellant’s relationship with his son. Appellant has not affirmatively indicated a positive intent to sever the parental relationship.

The lower court also indicated that by failing to provide financial support appellant has not performed his parental duties. In this regard, we agree with the statements made by the attorney appointed to represent the minor child:

In regard to support of the child during the period in question, it should be noted that Appellee consistently refused to accept support for the child. She admitted to accepting two (2) checks designated as support but informed the Appellant that she personally was accepting this money as payment of a prior debt and did not use the money for the child’s benefit. She finally returned a ripped up check to the Appellant and informed him of her intentions to refuse any future money he sent for support of the child. Certainly the Appellee cannot now argue that Appellant’s failure to continue these futile payments is evidence of his refusal or failure to perform his parental duties. These facts do not support the Lower Court’s finding that the Appellant has failed to perform his parental duties in a period in excess of six (6) months.

Brief for Minor Child at 6.

In the instant case, the record does not support a finding that appellant has evidenced a settled purpose of relinquishing his parental claim or that he has failed to perform parental duties. The lower court abused its discretion in terminating appellant’s parental rights.

The order of the lower court is reversed and the case is remanded with instructions that the lower court enter an order in accordance with this opinion. Jurisdiction is relinquished.

      . Act of Oct. 15, 1980, P.L. 934, No. 163, § 1, effective Jan. 1, 1981.

      . We recognize that the issue of the proper scope of review applied in involuntary termination of parental right cases is presently before our en banc Court in the case of In Re James, J. 2793 PHL 1983, argued 2-11-83; however, the exercise of a different scope of review in this case would not affect the result.

      . 1 P.S. § 311(1). Adoption Act, Act of July 24, 1970, P.L. 620, No. 208, art. Ill, § 311(1). Section 311(a) is identical to 23 Pa.C.S.A. § 2511(a)(1).


author: BROSKY, Judge:

text:
    471 A.2d 544
    Mary Jo REISINGER, Appellant, v. Keith S. REISINGER.
    Superior Court of Pennsylvania.
    Argued March 30, 1983.
    Filed Feb. 3, 1984.

      Morton B. DeBroff, Pittsburgh, for appellant.
    June S. Schulberg, Pittsburgh, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal is from an award of support ordering appellee, the former husband, to pay to appellant, the former wife, and their children. Appellant argues that the award should have been allocated. She also contends that, as an award unallocated as to child support and alimony pendente lite, it should have been based on appellee’s gross, rather than net, income. On the first issue, we find that the court below did not err. As to the second issue, we find that there was an improper computation of the award and vacate and remand for computation.

I.

The first issue presented by appellant is whether the court below erred in not allocating the award into child support and alimony pendente lite portions. She points out that in this unallocated form the total amount of the award is subject to her federal income tax; and the total amount of the award is not subject to his federal income tax. 26 U.S.C. §§ 71(a), (b). Had the award been allocated, she would only have to pay income tax on the alimony portion; while her former husband would have to pay the taxes on the child support portion.

The court below acknowledged that this would have that tax effect. Indeed, it states that this was precisely the reason the award was not allocated.

Certainly Wife is aware, or at least her counsel should be, that income tax in this nation is levied in a progressive fashion: In other words, the more you make, the larger the percentage of tax paid. The effect of this order is to increase the total income available to this family unit, severed though it is, and to pass the tax savings on to the children in the form of increased support. By not allocating this order, this court permits all of Husband’s payments to Wife to be considered alimony as defined by Sections 71(a)(3) and 215 of the Internal Revenue Code. The effect thereby is to halve Husband’s income, the only income for this family, causing each part to be taxed at a much lower percentage than the whole would be. Had this not been done, this court would have had to order a substantially smaller amount for alimony pendente lite and child support.

This Court has repeatedly sanctioned the non-allocation of awards for the above-stated reason. Commonwealth ex rel. Kunkin v. Bruck, 297 Pa.Super. 410, 443 A.2d 1187 (1982); Commonwealth ex rel. Stanley v. Stanley, 198 Pa.Super. 15, 179 A.2d 667 (1962); Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976). While Pa.R.Civ.P. 1910.16 permits the allocation of an award, such allocation is not required.

We conclude that the court below did not err in not allocating the award into child support and alimony pendente lite portions.

II.

The second issue presented by appellant is whether an unallocated award should be based on the former husband’s gross, rather than net, income. She argues that it should be based on the gross income because basing it on his net income results in a windfall to him.

In order to deal with this argument, the terms involved must be defined. The husband’s gross income is just that— his total income prior to the payment of any taxes. His “net income,” as that term was used below, means the income left after the husband pays the taxes that he would owe as a single taxpayer not paying alimony.

However, under the award, appellant would be paying alimony pendente lite. He would not have to pay income tax on the amount paid as alimony. This would result in his paying less income tax than the “net income” method indicates he would be paying.

Appellant’s argument here is that the trial court erred in computing the alimony award based on his “net income.” She accurately points out that this method results in a lower post-tax figure than the one which will actually occur under the operation of the award.

Up to this point, appellant is quite persuasive. She errs in the option she suggests be used in setting the amount of the award. Rather than his “net income,” she proposes that his gross income be the determinative amount.

Appellee responds that basing the support award on his gross income could be confiscatory. This is also an accurate statement. If the amount of the award were based on appellee’s gross income and then computed using tables designed to be used for “net income” figures, the resulting award could indeed be excessive and confiscatory. This would contravene the rule in Commonwealth ex rel. Orlow v. Orlow, 270 Pa.Super. 335, 411 A.2d 555 (1979).

We are thus left with neither alternative proposed by the parties being proper. The “net income” figure advocated by appellee is factually inaccurate and the gross income figure advocated by appellant could also work an injustice. The adversary process has brought this issue to our attention. But, due to the self-serving positions propounded by each party, it is consequently our responsibility to determine what the correct process should be.

Following from our exposition above, we hold that the amount of an alimony award should be established taking into consideration the actual post tax net income of the payor under the award. This actual post tax net income would be determined by taking into consideration the decreased tax liability due to the tax deductible alimony.

In coming to this conclusion, we are simply applying well-established law: “... it is clear that a spouse’s present expendable income, potential earning power, and property and financial resources rather than his net income, determine the reasonableness of a support order.” Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103 at 107, 380 A.2d 398 at 400 (1977). Since appellant’s tax liability would decrease as a result of his alimony payments, his “expendable income” would accordingly rise. Fashioning support awards without taking into account their tax consequences amounts to making calculations based on false data.

Therefore, we remand for the award to be set in accordance with the factor announced herein.

Conclusion

The order of the court below awarding support is vacated and remanded for recomputation in accordance with Section I of this opinion.

      . While we recognize that the trend is to allocate such awards, there is no rule or case law which makes allocation mandatory. Therefore, we cannot say that the court below abused its discretion in not allocating the award.

      . We would emphasize that it is the dissimilarity of the type of income and the type of table that results in an erroneous figure.


author: WIEAND, Judge:

text:
    471 A.2d 547
    COMMONWEALTH of Pennsylvania, v. Charles FLECK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1983.
    Filed Feb. 3, 1984.

      Joshua D. Lock, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

      Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Charles Fleck was tried non-jury and was found guilty of possession of marijuana with intent to deliver. On direct appeal from the judgment of sentence, Fleck contends (1) that the evidence was insufficient to sustain the verdict; (2) that an inculpatory statement made by him to the police was involuntary; (3) that physical evidence seized from his apartment should have been suppressed; and (4) that the trial court erred in disallowing cross-examination of police officers regarding an informant against appellant in a separate case. These contentions have no merit and, accordingly, we affirm.

State police acquired information from an informant that property taken during a burglary could be found in appellant’s apartment at 4939 Eastman Drive, Lower Paxton Township, Dauphin County. The police prepared an affidavit for a search warrant in which the informant was identified as a participant in the burglary who had delivered some of the stolen property to appellant’s apartment. When the police arrived at the apartment with a search warrant, they found appellant’s girl friend, Susan Hocker, in residency. During the search for stolen property the police found marijuana on a scale in the kitchen and in a handbag. They also found approximately ten pounds of marijuana in a large, canvas gym bag on the floor of the bedroom which was being shared by appellant and Susan Hocker. When appellant returned to his apartment shortly thereafter, he was advised of his Miranda rights. He denied ownership of the gym bag. He made inculpatory statements regarding stolen property found in the apartment, however, and was placed under arrest. While being transported between the state police barracks and the office of the arraigning magistrate, appellant was asked again about the gym bag, and he was told that the police would deem items found inside the apartment to have been in the joint control of both Fleck and his girl friend. Appellant then told police that the marijuana found in the gym bag and also that in Hocker’s handbag belonged to him.

Evidence that marijuana was found in appellant’s apartment, together with his admission that it belonged to him, was sufficient to prove appellant’s possession of marijuana. The circumstances under which it was found and the quantity thereof were sufficient to permit an inference that appellant intended to deliver some or all of the marijuana to other persons and did not intend it solely for personal use. See: Commonwealth v. Bowermaster, 297 Pa.Super. 444, 453, 444 A.2d 115, 119 (1982); Commonwealth v. Harmes, 255 Pa.Super. 147, 151, 386 A.2d 551, 552 (1978).

Before the Commonwealth could make use of the inculpatory statement made by appellant while in police custody, it was required to prove by a preponderance of the evidence that the statement was voluntary. Commonwealth v. Bullard, 465 Pa. 341, 346, 350 A.2d 797, 799 (1976); Commonwealth v. Reynolds, 300 Pa.Super. 143, 146, 446 A.2d 270, 272 (1982). “[T]he ultimate test for voluntariness is whether the confession is the product of an essentially free and unconstrained choice by its maker.” Commonwealth v. Smith, 470 Pa. 220, 225, 368 A.2d 272, 275 (1977), quoting Commonwealth v. Alston, 456 Pa. 128, 133, 317 A.2d 241, 243 (1974). Accord: Commonwealth v. Betrand, 484 Pa. 511, 518, 399 A.2d 682, 686 (1979). “An evaluation seeking to determine whether a confession is voluntary must consider the totality of the circumstances.” Commonwealth v. Betrand, supra, 484 Pa. at 519, 399 A.2d at 686. All circumstances “which may serve to drain one’s power of resistance to suggestion and undermine his self-determination” must be considered. Commonwealth v. Betrand, supra. “When the question of voluntariness passes beyond the realm of physical coercion and into degrees of psychological coercion, most careful attention will be afforded to any facts, circumstances or events tending to overbear the will of the accused.” Commonwealth v. Smith, supra 470 Pa. at 225-226, 368 A.2d at 275, quoting Commonwealth v. Alston, supra 456 Pa. at 134, 317 A.2d at 244. Accord: Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976).

In the instant case, Fleck was specifically advised of his rights under Miranda. He did not elect to remain silent but freely made statements to the police. His willingness to speak with the police continued even after he was in custody. A careful review of all the circumstances leads us inevitably to the conclusion that he was not coerced to make an inculpatory statement against his will. He was not coerced physically in any way. His admission of ownership resulted, rather, from a conscious decision to protect Susan Hocker, the girl friend whom appellant subsequently married. His desire to protect his girl friend was not coercive per se. It was merely evidence which could be considered by the trial court in determining whether the accused’s will had been overborne. Commonwealth v. Ozovek, 270 Pa. Super. 468, 471, 411 A.2d 814, 815 (1979). See: Commonwealth v. Garnett, 267 Pa.Super. 41, 44, 405 A.2d 1293, 1294-1295 (1979) (emotional state of accused is evidence to be considered in determining voluntariness of confession). The trial court determined that appellant’s statement had been voluntarily given; and that determination is fully supported by the evidence. Thus, it was not error to permit Fleck’s statement ■ to be received in evidence. See and compare: United States v. Reese, 351 F.Supp. 719, 721 (W.D.Pa.1972) (police statement to defendant that if he didn’t confess his live-in girl friend would be booked was not coercive); Commonwealth v. Ozovek, supra (defendant’s confession because of fear that his wife would be implicated was not coerced).

The trial court properly refused to suppress the marijuana found in the gym bag. Police were searching for both large and small sized items of stolen property pursuant to a valid search warrant when the gym bag was discovered. At that time, not all items listed in the warrant had been found. Therefore, the. police were entitled — even required — to open the gym bag in furtherance of the search. United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 2170, 72 L.Ed.2d 572, 591 (1982); United States v. Newman, 685 F.2d 90, 92 (3d Cir.1982); Commonwealth v. Wheatley, 266 Pa.Super. 1, 7, 402 A.2d 1047, 1050 (1979); Commonwealth v. Sellers, 236 Pa.Super. 191, 195, 344 A.2d 689, 691 (1975). “A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and it is not limited by the possibility that separate acts of entry or opening may be required to complete the search.” United States v. Ross, supra 456 U.S. at 820-821, 102 S.Ct. at 2170, 72 L.Ed.2d at 591. In Commonwealth v. Wheatley, supra, this court stated, “a warrant to search a person’s premises or effects includes the authority to search things under the control of that person.” Id. 266 Pa.Super. at 6, 402 A.2d at 1050. When police came upon the marijuana they were not required to ignore it. Neither was it necessary that they obtain an additional warrant before they seized it. Commonwealth v. Wheatley, supra, 266 Pa.Superior Ct. at 7, 402 A.2d at 1050. Commonwealth v. Martin, 252 Pa.Super. 265, 268, 381 A.2d 491, 492 (1977). Having been lawfully seized, the contraband could be used as evidence against appellant during his trial for possession thereof.

Finally, appellant argues that the trial court erred because it refused to allow cross-examination of police witnesses regarding the identity of the informant who told police that stolen property could be found in appellant’s apartment. There is no merit in this argument. Before disclosure of an informer’s identity is required, more is necessary than a mere assertion that such a disclosure might be helpful to the defense. Commonwealth v. Herron, 475 Pa. 461, 466, 380 A.2d 1228, 1230 (1977); Commonwealth v. Davis, 318 Pa.Super. 507, 515, 465 A.2d 669, 672 (1983). Although the defendant cannot be expected to predict exactly what the informant would say if called as a witness, he must at least suggest a reasonable possibility that the informant could give testimony that would tend to exonerate the defendant so that it would be unfair to withhold it. Commonwealth v. Herron, supra 475 Pa. at 467, 380 A.2d at 1230; Commonwealth v. Davis, supra 318 Pa.Super. at 515, 465 A.2d at 672-673; Commonwealth v. Knox, 273 Pa.Super. 563, 568, 417 A.2d 1192, 1194 (1980); Commonwealth v. Pritchett, 225 Pa.Super. 401, 407-408, 312 A.2d 434, 438 (1973).

In the instant case, there is no reason to believe that the police informant had knowledge of relevant facts which would have been helpful to the defense. The informant’s knowledge, insofar as it is revealed by the record, was limited to the separate crime of burglary and the storing of stolen goods in appellant’s apartment. It was while police were searching for stolen property that, independent of any information obtained from the informant, they discovered marijuana. Appellant’s speculation that the informant might have had information which would have enabled appellant to attack the validity of the police search warrant and the seizure of the marijuana was an inadequate basis for compelling the Commonwealth to disclose the identity of the informing burglary participant.. See: Rugendorf v. United States, 376 U.S. 528, 535, 84 S.Ct. 825, 829, 11 L.Ed.2d 887, 893 (1964); United States v. Cantor, 470 F.2d 890, 892 (3d Cir.1972); Commonwealth v. Davis, supra; Commonwealth v. Knox, supra; Commonwealth v. Garcia, 261 Pa.Super. 296, 300, 396 A.2d 406, 408 (1978); Commonwealth v. Crawley, 209 Pa.Super. 70, 72-73, 223 A.2d 885, 887 (1966), aff'd, 432 Pa. 627, 247 A.2d 226 (1968).

In the absence of a showing that the informant had information relevant to the marijuana charge ■ for which appellant was being tried, we cannot say that the trial court erred in refusing to permit cross-examination intended to elicit the identity of the person who gave information regarding appellant’s possession of stolen property.

The judgment of sentence is affirmed.

      . 35 Pa.C.S. § 780-113(a)(30).

      . Appellant did not file a pre-trial application to compel disclosure of the informant’s identity. However, he did make an oral request for such information during a pre-trial suppression hearing. Compare: Commonwealth v. Bradshaw, 238 Pa.Super. 22, 30, 364 A.2d 702, 706 (1975).


author: CERCONE, Judge:

text:
    471 A.2d 551
    COMMONWEALTH of Pennsylvania v. David BAILEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 7, 1983.
    Filed Feb. 3, 1984.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   CERCONE, Judge:

Appellant was convicted after a jury trial of simple assault. Post-trial motions were filed, argued and denied. Appellant was sentenced to one year of probation and fined $100.00 and directed to pay the costs of prosecution and make restitution. From the judgment of sentence appellant has filed this appeal raising two issues. Before addressing appellant’s contentions a factual review of the case is necessary.

Paula Kiehl was in a barroom, waiting for her boyfriend, Glen Kuhns. According to the prosecution’s witnesses, after Kuhns arrived appellant David Bailey and a friend of his, David Matos, approached Kiehl and Kuhns. Bailey and Matos inquired of the couple’s relationship, and then Matos grabbed Kiehl’s arm provoking Kuhns to strike Matos. Bailey interceded on behalf of Matos and other patrons broke up the brawl. The defense claimed that Matos never grabbed Kiehl, but instead appellant became violent when Matos stated he thought Kiehl was good looking and that he did not care if Kuhns was her boyfriend.

Kiehl and Kuhns left the bar and according to their testimony, the following occurred. A short distance from the bar, and only five minutes later, they again encountered Matos and Bailey. Appellant pushed Kuhns up against the wall but relented from further aggression at Matos’ insistence. Matos and Kuhns resolved their differences and apologized to each other and shook hands. Bailey then struck Kuhns, knocking him to the ground rendering him unconscious. Kuhns incurred a broken jaw and required six or eight stitches. His jaw was wired shut for six weeks.

The appellant’s recollection of the events differed drastically. According to both Matos and Bailey, they, individually and inadvertently, came upon Kiehl and Kuhns the second time. Matos approached Kuhns to inquire why he, Kuhns, had struck Matos. Bailey arrived upon the scene and believed that Kuhns was going to again hit his friend Matos, and he decided to step into the discussion. At that point Kuhns pushed Bailey and attempted to hit him. In self-defense, Bailey struck back.

Defense counsel requested the court to instruct the jury concerning the defense of self-defense, as codified at 18 Pa.C.S.A. § 505(a):

§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the person. —The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

However, the court refused the request, and instead instructed the jury to consider the defense of justification, 18 Pa.C.S.A. § 503(a), which reads as follows:

§ 503. Justification generally
(a) General rule. — Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
(2) neither this title nor other law defining the offense .provides exceptions or defenses dealing with the specific situation involved; and
(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

After the charge was given, defense counsel renewed his request for a § 505 charge and his objection to a charge pursuant to § 503. Appellant contends on appeal that the charge was improper and therefore he is entitled to a new trial. We agree.

Before self defense may be at issue, there must be some evidence, from whatever source, to justify a finding of self defense. Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980); Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977); Commonwealth v. Terrell, 276 Pa.Superior Ct. 136, 419 A.2d 133 (1980); Commonwealth v. Jones, 231 Pa.Superior Ct. 300, 332 A.2d 464 (1974). A jury charge on self defense must be given upon request where the jury would have a possible basis for finding self defense. Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980). If there is evidence presented that could support a claim of self defense, it is up to the fact-finder to pass upon its creditibility and therefore it is improper for a trial court to exclude such consideration by refusing a charge thereon. Id.

In the current case, the defense claimed that the victim renewed the violence. Both appellant and Matos testified that appellant’s assault on Kuhns was a response to Kuhns unprovoked aggressiveness towards appellant. The trial court however charged the jury that appellant’s assault on the victim could not be justified unless it was necessary to avoid a harm to appellant greater than simple assault. Such charge is contrary to our holding in Commonwealth v. Rittle, 285 Pa.Superior Ct. 522, 428 A.2d 168 (1981).

In Rittle, the victim, who was much larger then the allegedly sickly defendant, approached the defendant’s car and threaten to beat up the defendant. The defendant in return, reached into his back seat, produced a gun and pointed it at the victim and the victim walked away. No shots were fired. The trial court refused to charge the jury on self defense and the defendant was found guilty of simple assault. This court held that the jury could have concluded that the victim was the initial aggressor who attempted to place the defendant in fear of imminent serious bodily injury and such could amount to simple assault. Therefore, the defendant was entitled to an instruction on the use of self-defense.

Similarly here, the jury could have concluded that the simple assault upon Kuhns was a self-defense reaction to Kuhns’ assault on appellant. However, the jury was not properly instructed on such theory of self-defense, but instead was instructed pursuant to § 503 to weigh the relative harm of the parties conduct. However, § 503(a)(2) provides that § 503 does not apply to a situation if another section provides a defense to the situation. As we hold here that § 505 applies to the facts of this case, the charge given was therefore improper and a new trial is required.

Appellant’s second complaint is with the admission of hospital bills, which he claims were irrelevant. The admission of such evidence rests within the discretion of the trial judge and here we can find no abuse of such discretion. See Commonwealth v. Miller, 268 Pa.Superior Ct. 123, 407 A.2d 860 (1979).

Judgment of sentence is reversed and a new trial is granted.


text:
    471 A.2d 554
    William C. URLAND, Executor of the Estate of Arlene G. Urland, Appellant (at 606), v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant (at 581).
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1983.
    Filed Feb. 3, 1984.

      Charles Fonzone, Allentown, for appellant (at No. 581) and appellee (at No. 606).
    Steven A. Bergstein, Allentown, for appellant (at No. 606) and appellee (at No. 581).
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   PER CURIAM:

On or about October 15, 1978, the appellee’s decedent, Arlene G. Urland, died as a result of a motor vehicle accident. The appellee, as executor of the estate, filed an action against the appellant alleging that the decedent’s estate was entitled to work loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act. The appellant filed an Answer and New Matter alleging that the estate was not entitled to work loss benefits. The parties stipulated that had the appellee’s decedent lived to normal life expectancy, she would have earned in excess of $15,-000. 00. On February 25, 1983 the Honorable David E. Mellenberg granted the appellee’s motion for summary judgment against the appellant in the amount of $15,000.00 plus interest. Judge Mellenberg also awarded counsel fees of $1,663.75. The appellant’s appeal and the appellee’s cross appeal were subsequently filed in a timely manner.

In its posture before our Court, this case presents four questions for review: 1) Does the appellee, as executor of the estate of a decedent policyholder, have standing to recover work loss benefits since he is not a “survivor” as defined by the No-fault Act? 2) Is the decision in Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 401 A.2d 1160 (1979), affirmed, 491 Pa. 447, 421 A.2d 629 (1980), entitled to retroactive application? 3) Is the appellee entitled to attorney’s fees? 4) Is the appellant obligated to pay interest and, if so, in what manner?

Initially, we note that our Court has held that the estate of a deceased victim is entitled to recover work loss benefits, therefore, the appellee has standing in this instance. Miller v. United States Fidelity & Guaranty Company, 304 Pa.Super. 43, 450 A.2d 91 (1982); Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982).

Secondly, our Court has specifically held that Heffner v. Allstate Insurance Company, supra is to be accorded retroactive application. Baker v. Aetna Casualty & Surety Company, 309 Pa.Super. 81, 454 A.2d 1092 (1982).

Thirdly, under 40 P.S. § 1009.107(3), the lower court may award attorney’s fees to the claimant if it determines that the obligor has denied the claim without reasonable foundation. The appellant alleges that the claim was denied due to the uncertain state of the law in this area. Contrary to the appellant’s assertion, we find the law in this area to be clear. Thus, the award of attorney’s fees by Judge Mellenberg was justified. See: Baker v. Aetna Casualty & Surety Company, supra. Further, we remand this matter to the trial court to determine the amount of reasonable attorney’s fees due appellee as a result of the appellant’s continuing denial of the claim and its prolongation of this action through appeal. See: Keaten v. Aetna Life and Casualty Ins. Co., 309 Pa.Super. 101, 454 A.2d 1102 (1982).

Finally, in response to the appellant’s fourth question, the No-fault Act provides:

No-fault benefits are overdue if not paid within thirty days after receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained, unless the obligor designates, upon receipt of an initial claim for no-fault benefits, periods not to exceed thirty-one days each for accumulating all such claims received within each such period^ in. which case such benefits are overdue if not paid within fifteen days after the close of such period____ Overdue payments bear interest at the rate of eighteen per cent (18%) per annum.

Id., at 40 P.S. § 1009.106(a)(2).

The lower court held that interest shall be accrued 30 days after February 24, 1981 on the accrued, unpaid benefits for each month thereafter. (Lower Ct. Slip Op. at 4). The court cited Baker v. Aetna Casualty & Surety Company, supra for this proposition. However, our en banc Court has recently held that post mortem work loss benefits are to be paid in a lump sum, thus overruling Baker to the extent that it is contrary. Antanovich v. Allstate Ins. Co., 320 Pa.Super. 322, 467 A.2d 345 (1983). See also: Hartleb v. Ohio Casualty Insurance Company, 305 Pa.Super. 231, 451 A.2d 506 (1982). Thus, 18% per annum interest on the entire $15,000.00 should begin to run 30 days following February 24, 1981. Accordingly, we reverse the Order of the court below as it pertains to the accrual and payment of interest.

Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, 40 P.S. § 1009.101 et seq.