author: JOHNSON, Judge:

text:
    460 A.2d 1184
    COMMONWEALTH of Pennsylvania v. Carey Nick DEPPELLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1982.
    Filed May 27, 1983.

      Arthur L. Zulick, Assistant Public Defender, Stroudsburg, for appellant.
    Robert C. Lear, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

Appellant, a juvenile at the time of his arrest, was transferred to criminal court for trial following a certification hearing pursuant to Section 6355 of the Juvenile Act. Appellant then pled guilty to robbery and was sentenced to two and one-half to five years imprisonment. This appeal followed. We now vacate the judgment of sentence and remand for proceedings consistent with this opinion.

Appellant has raised two issues on appeal, namely: (1) whether the juvenile court committed a gross abuse of discretion in finding that appellant was not amenable to treatment as a juvenile and in certifying him to criminal court and (2) whether the juvenile court erred by failing to adequately state its reasons why the appellant was not amenable to treatment as a juvenile.

We direct our attention to a consideration of appellant’s second issue. The certification hearing was held on two separate days, commencing late in the afternoon on April 16, 1980 and continued for conclusion on June 2, 1980. The hearing had been continued from April 16th at the request of the then-juvenile’s counsel to permit the gathering of witnesses and the review of the probation and other records pertaining to the juvenile.

At the conclusion of the reception of testimony on June 2nd, both the attorney for the Commonwealth and counsel for the juvenile presented summations and argument to the certification hearing court which were transcribed. We note that both opposing counsel presented to the court their positions as to why the court should rule in favor of their respective clients. The assistant district attorney reviewed the factors which the court must consider on any transfer petition. 42 Pa.C.S.A. 6355(a), §§ (1) and (4). The public defender, in turn, reviewed those factors and made specific reference to the testimony adduced at the hearing. He referred specifically to the availability of facilities for treatment or rehabilitation of his client, 42 Pa.C.S.A. § 6355(a)(4)(iii)(A), that two witnesses had testified to the juvenile’s amenability to treatment, id., and that the Commonwealth “has failed to indicate non-amenability to treatment.” He correctly further argued to the court that the burden is on the Commonwealth to prove that the juvenile is not the proper subject for the care and solicitude of the juvenile system. Commonwealth v. Greiner, 479 Pa. 364, 367-372, 388 A.2d 698, 700-702 (1978).

Immediately following the arguments of opposing counsel, and without any other response by the court, the following Order of Court was entered and filed:

ORDER
AND NOW, June 2, 1980, we find that the Commonwealth has established a prima facie case that the child committed the delinquent act charged in this case, which would be a felony of the first degree if committed by an adult. There are reasons to believe that the child is not amenable to treatment, supervision, or rehabilitation as a juvenile through available facilities; that the child is not committable to an institution for the mentally ill, or mentally retarded; that the interests of the community require that the child be placed under legal restraint or discipline; and that the charge is one that would require a sentence of three years if committed by an adult. We hereby TERMINATE the juvenile action, and CERTIFY him to adult court.
BY THE COURT:
/s/ Harold A. Thomson, Jr.

The court reporter notes in the transcript that “[t]he hearing thus concluded.”

Appellant argues that the certification hearing court erred in failing to set forth its reasons for the above certification order in sufficient detail to demonstrate that the question of certification received the careful consideration of the court, and so as to permit meaningful appellate review. With this contention, we agree.

Ever since the seminal case of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), our courts have understood that a juvenile transfer statute, when read in the context of constitutional principles relating to due process, entitles juveniles to a hearing and a statement of the reasons for the juvenile court’s transfer decision. Id. at 557, 86 S.Ct. at 1055, 16 L.Ed.2d at 95. More specifically, the Kent court went on to state:

[I]t is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the [transfer to criminal proceeding] statute as requiring that this statement must be formal or that it should include conventional findings of fact, but the statement should be sufficient to demonstrate that the statutory requirement of “full investigation” has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.

383 U.S. at 561, 86 S.Ct. 1057, 16 L.Ed.2d at 97.

Pennsylvania has been uniform, since Kent, in requiring the juvenile court to make a statement of reasons for certification, which statement must be sufficient to demonstrate that the question of certification has received the careful consideration of the juvenile court and that the statement sets forth the basis for the order with sufficient specificity to permit meaningful review. Commonwealth v. Stokes, 279 Pa.Super. 361, 367, 421 A.2d 240, 243 (1980), followed in Commonwealth v. Lux, 299 Pa.Super. 136, 139-140, 445 A.2d 185, 187 (1982). Accord, Commonwealth v. Harrod, 260 Pa.Super. 312, 316-317, 394 A.2d 567, 570 (1978) ; Commonwealth v. Bey, 249 Pa.Super. 185, 191-196, 375 A.2d 1304, 1308-1310 (1977).

The mandate of Kent does not require a formal statement or that the statement include conventional findings of fact, but the statement must be of sufficient specificity to permit meaningful review by this court. The Commonwealth in this appeal urges us to follow Commonwealth v. Carrasquillo, 268 Pa.Super. 336, 408 A.2d 493 (1979) , where a panel of our court found that the juvenile court had met the requirements of our Juvenile Act and had made “the necessary findings upon sufficient evidence.” Id., 268 Pa.Superior at 339, 408 A.2d at 495. The Carrasquillo court was considering the appellant’s argument that the Commonwealth had failed to make findings to support its order. There, we noted that the hearing judge had verbalized his findings supporting transfer in the record, and that the judge further observed that his statement of reasons had been stated and made a part of the record. To the extent that Carrasquillo cannot be read as consistent with Stokes, Lux, Harrod and Bey, we decline to follow it.

In the case before us, we find that the hearing judge did not provide any reasons for the transfer certification order. We therefore are unable to afford any meaningful review to the juvenile court’s proceedings. Since the failure to specify reasons precludes any attempt to evaluate the decision, we must remand. Commonwealth v. Lux, supra.

We note that the appellant, on March 10, 1981, received a minimum sentence of two and one-half (2V2) years, to be computed from April 4, 1980. The minimum sentence therefore would have expired on about October 4, 1982. We also note from the certified record that appellant was born December 21, 1962. However, appellant’s maximum sentence will not expire until April 3, 1985, and until that time he remains subject to the jurisdiction of our criminal justice system on this charge. Since the waiver of the jurisdiction of the juvenile court is a “critically important” action determining vitally important statutory rights of the juvenile, see Kent v. United States, 383 U.S. at 555, 86 S.Ct. at 1054, 16 L.Ed.2d at 94, we are not inclined to view appellant’s rights on this appeal as being moot.

Although this case involves a plea of guilty to a charge of robbery, the plea necessarily was taken in the criminal court following transfer. The obvious implication of our holding today is that the court which accepted the guilty plea and entered the judgment of sentence acted without authority in accepting the plea and sentencing the appellant as an adult. Commonwealth v. Greiner, 479 Pa. at 371-372, 388 A.2d at 702.6 * Thus, the judgment of sentence must be vacated and this case remanded for further proceedings consistent with this opinion.

The evidence introduced at the new certification hearing following remand is to be limited solely to the evidence introduced at the initial certification hearing held April 16, and June 2, 1980. Commonwealth v. Bey, 249 Pa.Super. at 203-204, 375 A.2d at 1314.

If appellant is again certified to criminal court, the judgment of sentence shall be reinstated and a new appeal will lie. If appellant is not certified to criminal court, the case shall remain in the juvenile system for disposition. Commonwealth v. Lux, 299 Pa.Super. at 140, 445 A.2d at 188. Jurisdiction is relinquished.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2 [The Judicial Code]; Chapter 63, Subchapter D, § 6355 [The Juvenile Act]; 42 Pa.C.S.A. § 6355.

      . 18 Pa.C.S.A. § 3701(a)(1).

      . Transcript of Testimony, April 16, 1980, pp. 61-62.

      . Id. pp. 103-110.

      . Id. p. 109.

      . Id. p. 110.

      . Kent, which considered the procedural rights afforded juveniles being transferred to criminal court under the District of Columbia Juvenile Act, was made applicable to the states in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

      . We note that in both Commonwealth v. Harrod, and Commonwealth v. Stokes, both supra this court remanded for a new certification hearing, without disturbing the judgment of sentence. In Harrod, the rationale appears to have been that the appellant in that case challenged only the certification transfer procedure. In Stokes, the court considered and disposed of the other issues raised by the appellant adverse to him. We nevertheless believe that the conclusion reached by Justice Nix, speaking for a unanimous supreme court in Commonwealth v. Greiner, supra, to the effect that a court is without authority to proceed with a criminal trial unless and until a proper certification proceeding has been completed is both sound and unassailable. We therefore adopt the Greiner view. See Commonwealth v. Greiner, 479 Pa. at 371-372, 388 A.2d at 702.


source: Caselaw Access Project

license: Public Domain

text:
    460 A.2d 1188
    Charles T. TERPIN v. Mary M. TERPIN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 17, 1982.
    Filed May 27, 1983.

      James Anthony Moschetta, Washington, submitted a brief on behalf of appellant.
    Charles E. Kurowski, Canonsburg, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellant appeals from the order of the trial court dated December 17, 1981, dismissing appellant’s exceptions with respect to alimony and remanding her exceptions with respect to alimony pendente lite and counsel fees to the Master. Because the appeal is interlocutory, we quash.

The procedural history of the case indicates that the complaint in divorce was filed by appellee on February 11, 1981. Appellant filed an answer and counterclaim, requesting alimony, alimony pendente lite and counsel fees. Subsequent to appellee’s answer to the counterclaim, a Master was appointed and a report filed, recommending the divorce be granted and appellee’s requests be denied. Exceptions were filed by appellant alleging, inter alia, that a decree in divorce should be withheld until resolution of the other claims made by appellant and that the Master erred in his determination of appellant’s claims. On September 28, 1981, appellee filed a petition to bifurcate the divorce action from the remaining claims.

The trial court issued an opinion and order on December 17, 1981 which (1) dismissed appellant’s exception to the Master’s denial of her claim for alimony and (2) remanded the claims for alimony pendente lite and counsel fees to the Master for findings of fact and conclusions of law. Appellant filed her notice of appeal pursuant to the December 17 order.

Subsequent to the filing of the notice of appeal, the trial court granted bifurcation and recommended that a decree in divorce be entered. The decree in divorce was finally entered on February 4, 1982.

Although neither party raises the question of the appealability of the order in question, we not only may but must raise the question of jurisdiction sua sponte. Aloi v. Aloi, 290 Pa.Super. 125, 434 A.2d 161 (1981). Our jurisdiction is limited to appeals from final orders and such other appeals from interlocutory orders as authorized by law or certification by the trial court. 42 Pa.C.S.A. §§ 702, 742; Pa.R.A.P. 301-312.

An order is “final” if its practical effect is to put the party out of court, precluding him from presenting the merits of his claim. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).

As stated in Gordon v. Gordon, 293 Pa.Super. 491, 499, 439 A.2d 683, 686-87 (1981), aff'd, 498 Pa. 570, 449 A.2d 1378 (1982):

Stated generally, the policy underlying the principle that an order is not appealable unless it puts the appellant “out of court” is that piecemeal litigation should be avoided; the appellate courts will use their resources more economically if they review a case only once, rather than deciding one issue on one appeal, and another issue on a later appeal. Thus where the trial court on preliminary objections has dismissed one or more counts of a multi-count complaint, but has not dismissed the entire complaint, we have held that the court’s order was interlocutory and not appealable. Eg., Bagshaw v. Vickers, 286 Pa.Superior Ct. 246, 428 A.2d 664 (1981); Giannini v. Fog, 279 Pa.Superior Ct. 553, 421 A.2d 338 (1980).

An order dismissing exceptions and refusing to reopen a master’s report has been held not to be a final appealable order. Aloi, supra; see also Hammond v. Hammond, 301 Pa.Super. 439, 447 A.2d 1047 (1982).

In the instant case, the order of December 17 dismissed appellant’s claim for alimony, but also remanded her claims for alimony pendente lite and counsel fees to the Master. Clearly, as to those matters remanded, the order was interlocutory. Despite the fact that the order, as to alimony, appears to be final, permitting an appeal at this time would amount to allowing piecemeal determinations by this court, as appellant could then appeal a final order on alimony pendente lite and counsel fees only when such a final order is entered. Also, appellant, pursuant to her exceptions, stated that a decree in divorce should be withheld, pending resolution of her claims to alimony, etc. Appellant also requested that appellee’s petition to bifurcate the divorce action from the claims by appellant be denied. Therefore, appellant desired the resolution of all of her claims prior to any decision being made on the divorce petition. Clearly then, as appellant has treated both the divorce action and her claims for alimony etc. as a single proceeding, our determination that the order of December 17 was not final is reinforced by appellant’s treatment of the entire claim.

The appeal is quashed.

      . Appellee had originally filed for divorce in December of 1971, but that complaint was discontinued.


author: POPOVICH, Judge:

text:
    460 A.2d 1190
    In re A.M., P.A.M., V.L.M. Appeal of B.M.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1982.
    Filed May 27, 1983.

      Lenore M. Urbano, Williamsport, for appellant.
    Dudley N. Anderson, Williamsport, for appellees.
    Charles F. Greevy, III, Williamsport, for Lycoming Co., participating party.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by B.M., the natural mother of two minor children, whose parental rights were terminated involuntarily by the court below after a hearing was held under the Adoption Code. We must reverse and remand for reconsideration in light of the United States Supreme Court’s holding in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The record reveals that the NOTICE OF APPEAL in the instant case was filed on January 27, 1982, and the order appealed was dated December 28, 1981.

In a recently filed opinion of this Court, we concluded that “the clear and convincing standard must be applied to all cases in which appeals had not been exhausted at the time the Scmtosky decision was rendered.” In Re: Adoption of M.E.T., Appeal of: M.E.T.G., 313 Pa.Super. 316, —, 459 A.2d 1247, 1249 (1983). Because the matter before us was pending on March 24, 1982, the date of the Santosky decision, we must remand to the trial court for further proceedings.

Order vacated. Case remanded for further proceedings not inconsistent with this opinion. Henceforth, any appeal must be from the order of the trial court thus imposed. Jurisdiction is relinquished.

      . Act of July 24, 1970, P.L. 620, No. 208, Art. Ill, § 311(1). The Adoption Act of 1970 has been superceded by the Adoption Act of 1980, Act of October 15, 1980, P.L. 934, No. 163, 23 Pa.C.S.A. § 2101 et seq.


author: VAN der VOORT, Judge:

text:
    460 A.2d 1191
    Gary SULLIVAN v. CITY OF PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1981.
    Filed May 27, 1983.

      David T. Anderson, Assistant City Solicitor, Philadelphia, for appellant.
    Jerome Gamburg, Philadelphia, for appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Plaintiff Sullivan filed a complaint in trespass naming appellant-City of Philadelphia (hereafter referred to as the City) as defendant. Involved was the confiscation of Sullivan’s car which the city, subsequent to the seizure, was unable to locate. A panel of arbitrators found against the City and a timely appeal was taken to the Court of Common Pleas. The court sitting non-jury returned a verdict in favor of Sullivan. The City filed exceptions which were denied on December 4, 1980. The City thereafter appealed to this court. The City raises four issues on this appeal. I. Can a verdict be awarded in excess of the amount specifically pleaded?

The panel of arbitrators awarded appellee $2,800.00. In his complaint in the Court of Common Pleas appellee demanded judgment in the amount of $2,800.00. The trial court found in favor of plaintiff-appellee in the amount of $7,800.00. The different awards reflect different values of a 1965 Corvette at the different times of the respective proceedings. The City contends that without a formal amendment of the ad damnum clause, the higher award was improper. Appellee counters that the trial court correctly amended the proceedings to conform to the evidence.

Amendment of the ad damnum clause is permissible at any point in the litigation. Felo v. Kroger Groc. & Bak. Co., 347 Pa. 142, 31 A.2d 552 (1943); Theisen v. Pittsburgh Rys. Co., 256 Pa. 475, 100 A. 994 (1917); Ashbaugh v. Ashbaugh, 167 Pa.Superior Ct. 368, 75 A.2d 13 (1950). See Pa.R.C.P. No. 1033. Furthermore such amendment may be made on the court’s own motion. Delgrosso v. Gruerio, 255 Pa.Superior Ct. 560, 564 n. 6, 389 A.2d 119 n. 6 (1978). We find no error in this aspect of the court’s award.

II. Could the court consider appellee’s loss of use and the fact that the vehicle was a collector’s item?

The City contends that the complaint alleged neither loss of use nor the special value of the vehicle therefore the court could not award damages for either.

After carefully reviewing the lower court’s opinion, we find that the City incorrectly reads such opinion to award for loss of use. No mention of loss of use is made in the opinion. Apparently, the City is concerned over argument made in response to its argument that the upkeep and cost of maintenance should have been deducted from any award. The court countered that, then, loss of use should also be considered. (N.T. pp. 28-29). After the completion of the testimony, the trial judge reiterated her position to justify her disinclination to deduct for maintenance. (N.T. p. 47). The court instead based its awards on the fact that the vehicle was of special interest of fluctuating value and, therefore, should be valued higher.

As to the second prong of the argument the contention goes not to whether the vehicle should be considered as a collector’s item but to the date of valuation. The value of a vehicle, whether of special interest or not, will change with time. Thus this argument merges with the City’s fourth contention.

III. Was testimony concerning the circumstances surrounding the appellee’s arrest irrelevant as to the City’s failure to return the automobile?

Appellant-City failed to raise this contention in its written post-trial motions, therefore it has not been preserved for our review. Nord v. Devault Contracting Co., Inc., 460 Pa. 647, 334 A.2d 276 (1975).

IV. At what date should the Corvette have been valued?

Appellant contends that as the current action was brought in trespass the measure of damages should be predicated on the date of conversion or destruction. Support for such a position may be found in numerous cases. Universal Computer Systems v. Allegheny Airlines, 479 F.Supp. 639, 645 (M.D.Pa.1979); Denby v. North Side Carpet Cleaning Co., 257 Pa.Superior Ct. 73, 82, 390 A.2d 252 (1978); Diesel v. Caputo, 244 Pa.Superior Ct. 195, 205, 366 A.2d 1259 (1976); and Withrow v. Walker, 41 Pa.Superior Ct. 155 (1909). The trial court finding that the loss of the vehicle resulted from the City’s wanton negligence and that the property was of fluctuating value, valued the car as of the date of trial. In compensating for the conversion of items of fluctuating value, a court may base an award on a market value other than that at the time of conversion. Wolfe v. The Pennsylvania Co., 322 Pa. 344, 185 A. 292 (1936), and Foley v. Wasserman, 319 Pa. 420, 179 A. 595 (1935). See also 68 P.S. § 481; substantially reenacted at 42 Pa.C.S. § 8335. We disagree with the lower court’s reasoning.

The trial court discussed both the Restatement, Restitution § 151 (1937) and the Restatement, Second, Torts, § 927. We will do likewise here.

The Restatement, Restitution § 151 (1937) reads as follows:

Where a person is entitled to a money judgment against another because by fraud, duress or other consciously tortious conduct the other has acquired, retained or disposed of his property, the measure of recovery for the benefit received by the other is the value of the property at the time of its improper acquisition, retention or disposition, or a higher value if this is required to avoid injustice where the property has fluctuated in value or additions have been made to it.

(Emphasis supplied). The Restatement, Second, Torts, § 927 provides:

Conversion or Destruction of a Thing or of a Legally Protected Interest in it
(1) When one is entitled to a judgment for the conversion of a chattel or the destruction or impairment of any legally protected interest in land or other thing, he may recover either
(a) the value of the subject matter or of his interest in it at the time and place of the conversion, destruction or impairment; or
(b) in the case of commodities of fluctuating value customarily traded on an exchange to which traders customarily resort, the highest replacement value of the commodity within a reasonable period during which he might have replaced it.

(Emphasis supplied). The trial court relying on both restatements to justify its award of damages, awarded them as of the time of trial. Neither the parties, nor the court have addressed the Act of April 10, 1929, 68 P.S. § 481, which has been substantially reenacted at 42 Pa.C.S. § 8335. This Act is very pertinent to the question at hand and in its current form reads as follows:

Damages for the conversion of stocks, bonds, or other like property of fluctuating value shall be limited to the difference between the proceeds of the conversion, or that portion thereof duly paid or credited to the owner, and such higher value as the property may have reached within a reasonable time after he had notice of the conversion. Where the facts are not in dispute, such period shall be fixed by the court as a matter of law. 1976, July 9, P.L. 586, No. 142, § 2, eff. June 27, 1978.

We do not believe it was the intent of the respective promulgating bodies to include motor vehicles within the scope of “commodities of fluctuating value.” While § 151 of the Restatement of Restitution does not define such term, the illustrations following comment (c) which deals with fluctuating values, use shares of stocks in the examples. The Restatement of Torts goes into greater detail. Subsection (l)(b) refers to property customarily traded on an exchange. Comment (e) then refers to property “customarily traded on public exchanges, such as stocks, bonds, and other securities, or fungible goods such as grains, cotton, oil and the like.” 42 § 8335 statutorily provides for damages for the conversion of property of fluctuating value. That legislation refers to “stocks, bonds, or other like property of fluctuating value.” While there was testimony, supported by admitted exhibits, which demonstrated that several similar vehicles had recently been sold at a well known and respected auction, such is distinguishable from the above examples. All of the cases which we have reviewed concerning such property, which have reviewed either or both restatements and the above act, dealt with securities.

An automobile is neither in the same class of property as securities nor is it fungible goods whose value regularly fluctuates. Webster’s New Collegiate Dictionary (1980) defines fluctuate as: “to ebb and flow in waves”; “to shift back and forth uncertainly.” Appellant’s own case demonstrates that a Corvette does not fall into the above definition. Mr. Sullivan testified himself that the value of a Corvette goes up; not up and down. (N.T. p. 24). Nor was appellee’s proof able to show that such car is fungible. Exhibits P-6 and P-7 were sales listings from the Manheim Auto Auction; they listed a 1967 Corvette hardtop and a 1966 and 1967 Corvette Convertible. Appellee’s was a 1965 convertible; his testimony was that his car was not comparabie to those listed in the sales sheets. (Id. at 30). Appellee merely succeeded in demonstrating that the corvette car appreciated in value, as distinguished from fluctuated in value.

For the above reason we find it necessary to reverse the order of the court below and to remand for a new trial on the issue of damages. Value shall be assessed at the time of conversion. In the circumstances of this case conversion should be deemed to have occurred at the point in time when Mr. Sullivan demanded the return of his Corvette and the City was either unwilling or unable to return the vehicle. See, Baram v. Farugia, 606 F.2d 42, 43-44 (3rd Cir.1979); Universal Computer Systems v. Allegheny Airlines, 479 F.Supp. 639, 644 (M.D.Pa.1979); and Norriton East R. Corp. v. Central-Penn N.B., 435 Pa. 57, 61, 254 A.2d 637 (1969).

Because the trial court fairly determined liability and the question of the amount of damages is easily separable from the determination of liability, we grant a new trial limited to the issue of damages. See Denby, supra, and the cases cited therein. Therefore we remand this case to the trial court to consider all evidence relevant to the determination of the value at the time of conversion.

Order and judgment are vacated and the record is remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.

      . Pursuant to a directive of this court, judgment was entered nunc pro tunc on August 24, 1982.

      . We need not address the court’s emphasis on wanton negligence since the court clearly rested its holding on its finding of fluctuating value.

      . As adopted May 19, 1977. Subsection (a) previously read “the value ... at the time and place of the conversion, destruction or impairment, or a different value where that is necessary to give just compensation.” (Emphasis supplied). As the lower court rested its decision on "fluctuating value" we need not address the effect of the 1977 revision.

      . Even if we were inclined (which we clearly are not) to find that a vehicle was of fluctuating value, an injured owner would only have, for purposes of calculating damages, a reasonable period, from the date he receives knowledge of the conversion, to acquire a replacement. Foley, supra. Comment (c) to the Restatement of Restitution, § 151, The Restatement of Torts, § 927, as well as 42 Pa.C.S. § 8335 all limit the valuation date to within a reasonable time from conversion, or knowledge thereof. A date 7 years after the impoundment of appellee’s car is not reasonable. See Yohey v. Burton, 139 Pa.Superior Ct. 393, 11 A.2d 794 (1940) (3 days); Rhodes v. Peoples-Pittsburgh Trust Co., 89 P.L.J. 585 (1942) (one year).

      . The City of Philadelphia did not present a defense but instead relied upon its cross-examination of appellee’s witness. We do not believe it would be fair to now allow the City to actively present a defense.

      . The lower court, by way of dictum, discussed delay damages, (See Marrazzo v. Scran. Nehi Bot. Co. Inc., 438 Pa. 72, 263 A.2d 336 (1970)) but did not award any as appellee did not request them. The City notes, as the lower court did, that appellee did not except to the lack of delay damages. Therefore we need not address the question whether damages for delay should or could have been awarded.


author: PER CURIAM: WIEAND, Judge,

text:
    460 A.2d 1195
    Bernadette ZIMMERMAN v. Frederick ZIMMERMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1982.
    Filed May 27, 1983.

      Joseph J. Carlin, Philadelphia, for appellant.
    Bernard E. Zbrzeznj, Philadelphia, for appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   PER CURIAM:

Appellant, Frederick Zimmerman, and appellee, Bernadette Zimmerman are divorced and a support order was entered on July 7, 1978 against appellant in the amount of $45.00 per week. Appellee filed on July 7, 1981 a petition for an increase in support for their son, Frederick Zimmerman, who was twelve-years-old at the time of that petition. On that date, the lower court increased the support order to $120.00 per week.

No exceptions were filed to that July 7, 1981 order modifying support, and this Court has held previously that such failure constitutes a waiver of objections to that order. E.g., Commonwealth ex rel. White v. White, 303 Pa.Super. 329, 449 A.2d 712 (1982); Paul v. Paul, 281 Pa.Super. 202, 421 A.2d 1219 (1980). The docket entry for July 7, 1981, however, does not indicate that notice of entry of the order modifying support was mailed as required by Pa.R.C.P. Nos. 236 and 1038(c), and in such a casé, we will not find appellant’s objections to be waived.

Accordingly, we remand for the filing of exceptions nunc ;pro tunc. Jurisdiction is relinquished.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

For reasons appearing in Nixon v. Nixon, 312 Pa.Super. 313, 458 A.2d 976 (1983), I concur in the decision to remand for the filing of exceptions nunc pro tunc.

      . We note that Pa.R.C.P. No. 1910.1 l(k), effective July 22, 1981, provides that “[n]o exceptions may be filed to the final order of support.” That rule, of course, does not control this matter as the entry of the July 7, 1981 order preceded the above effective date.


author: PER CURIAM:

text:
    460 A.2d 1196
    In re DAMON B. Appeal of JOAN B.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1983.
    Filed May 27, 1983.

      Lorraine D. Taylor, McKeesport, for appellant.
    Marc Salo Drier, Pittsburgh, for appellee.
    Michaele Krepinevich and Richard S. Levine, Pittsburgh, for Krapinevich, participating parties.
    James A. Esler, Assistant City Solicitor, Pittsburgh, for Children, participating party.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal by Joan B., natural mother of Damon B., from an order reducing her visitation rights from twice a month to once every ninety days.

Damon B. was born on June 16, 1977. He and his six siblings were adjudicated dependent on February 15, 1978, because of generally unsanitary conditions in the home. The children were returned to Joan B. under the supervision of Children and Youth Services. However, the problems continued and Damon was again removed, first to a shelter on September 12, 1978, then to the foster home of Mr. and Mrs. K. on October 3, 1978, where he still resides. Joan B. visited Damon on a regular once-a-month schedule until January 1981, when the visits increased to twice a month in contemplation of Damon’s eventual return to Joan B. At approximately the same time, the visits became erratic due to cancellations by the foster parents. On May 21, 1981, Joan B. filed a petition for review and enforcement of her visitation rights. Hearings were held on this petition on June 17, 1981, September 9, 1981, and October 30, 1981. Twice-a-month visitation was ordered pending the final decision. Although no formal petition was filed by the foster parents, they were represented by counsel and the court and all parties treated the matter as if they had petitioned for a decrease or cessation of visitation. On September 9, 1981, the foster parents filed a Notice of Intention to Adopt Damon.

Most of the testimony consisted of evaluations by two clinical psychologists of Damon and his interaction with his foster parents and his natural mother. At the October 30 hearing, testimony was also given by Joan B., Mr. K. (the foster father), and Dolores McCall, Joan B.’s caseworker who had supervised the visits. Both psychologists testified extensively about Damon’s strong psychological bonds to his foster parents, his inability to relate well to his natural mother during the visits they observed, and the stress caused by the visits, which included nightmares, enuresis, irrational fear of Joan B., and expressions of rage in his behavior. Both recommended ceasing or, at least, reducing visitation and stated that it was in Damon’s best interest to remain with the foster parents. The primary reason for this recommendation was because Damon had formed such a strong psychological bond with the foster parents. Mr. K. testified that Damon had always had problems with the visits but that these problems had significantly worsened when the visits became more frequent. He made clear his and Mrs. K.’s desire to adopt Damon. He also stated that he was not in favor of returning Damon to his natural mother and felt no duty to try to reunite Damon with his natural family. On the other hand, both Joan B. and her caseworker testified that Damon’s failure to relate to his natural mother was of fairly recent origin and that Damon’s behavior as observed by the psychologists was quite different from his behavior during visits observed by Ms. McCall. Joan B. also testified that she had completed a Parent Effectiveness Training course and had done volunteer work with parents and children in an effort to improve her parenting skills and regain custody of her children, two of whom had already been returned to her.

The hearing judge found that Joan B. had indeed improved her parenting and housekeeping skills and that the two children currently in her custody are receiving adequate care. However, he also found that Damon had formed such a strong psychological bond with his foster family that it was unlikely he could ever develop a close relationship with his natural family and that removal from the foster home would cause serious emotional harm to him. His order, dated November 23, 1981, provided for visitation every ninety days and directed CYS to formulate a new permanency plan “consistent with the findings of this Court.” Joan B.’s motion for reconsideration was denied and review of the original order was scheduled for June 23, 1982. This appeal followed.

On appeal Joan B. first argues that a natural parent’s right to visitation can be limited or denied only if the parent has been found to possess severe mental or moral deficiencies that constitute a grave threat to the welfare of the child. Commonwealth ex rel. Peterson v. Hayes, 252 Pa. Super. 487, 381 A.2d 1311 (1977). The trial judge specifically found a lack of evidence substantiating any such deficiencies. (Op. p. 5). Appellees argue that the appropriate standard is the best interest of the child.

The best interest standard has long been the guiding principle in determining custody cases. Commonwealth ex rel. Bender v. Bender, 197 Pa.Super. 397, 178 A.2d 779 (1962). In dealing with visitation rights, however, the stricter “grave threat” standard has long prevailed.

Only when the evidence clearly shows that a mother is unfit to associate with her children should she be denied the right to see them. Commonwealth ex rel. Turner v. Strange, 179 Pa.Super. 83, 115 A.2d 885 (1955).

Even partial custody which more closely resembles visitation than custody is determined under the stricter standard. Scott v. Scott, 240 Pa.Super. 65, 368 A.2d 288 (1976) (concurring opinion of Spaeth, J.). In the instant case, we are dealing strictly with visitation rights; for the most part, visits took place at CYS offices, they were only a few hours long, and, at most, took place twice a month. Therefore we agree that the best interest standard is inappropriate.

This error, however, does not necessarily require that we reverse the order reducing visitation, since we may affirm an order for reasons other than those given by the trial court. Weber v. Lynch, 237 Pa.Super. 48, 346 A.2d 363 (1975); In re King’s Estate, 183 Pa.Super. 190, 130 A.2d 245 (1957). In rare instances, we have approved restricting or temporarily suspending visitation even though there has been no showing of such severe mental or moral deficiencies in the parent as would constitute a grave threat to the child’s welfare. See, Dile v. Dile, 284 Pa.Super. 459, 426 A.2d 137 (1981); Lewis v. Lewis, 271 Pa.Super. 519, 414 A.2d 375 (1979); Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139 (1979). We believe this is just such a rare case. Both psychologists testified, in answer to a hypothetical question from the hearing judge, that visitation should be suspended or radically reduced for the next six months even if, at the end of that time, it were determined to return Damon to his natural mother; that the visits were presently counterproductive to Damon’s development of any bond with his natural mother; and that the stress experienced by Damon was unusually severe. In addition, the reduction in visits was a temporary one, limited in time by the review hearing scheduled within the next seven months. Therefore, we affirm that portion of the trial court’s order limiting Joan B.’s visitation to once every ninety days.

The other two issues raised by Joan B. in this appeal are: (1) that there was insufficient evidence to support that portion of the trial court’s order directing formulation of a permanency plan precluding Damon’s return to his natural mother; and (2) that the trial court should have ordered counseling and other remedial services to attempt to reunite Damon and his natural mother. The hearings below arose because of Joan B.’s petition to enforce her visitation rights. No permanency plan was then before the court for review. No request for counseling was made by any of the parties. There was no indication that counseling or other remedial services were part of any plan proposed by Children and Youth Services, or that any services suggested by them were rejected by any of the parties. The hearings were specifically limited to the narrow issue of “what is best for this child for the next 180 days.” (N.T. 10/30/81, p. 9) It is apparent from the record that the parties limited the evidence they presented to the issue of whether Joan B.’s visitations with Damon should be increased, decreased or suspended for the following six months. Evidence was not presented on the feasibility of a particular permanency plan or on the need or usefulness of counseling.

In other contexts, it has been held that a court should not grant relief on an issue when such relief has not been requested during trial. Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981). “Orderly judicial procedure requires that nothing more be passed upon by a court than the justiciable question posed for its decision.” School District of Robinson Township v. Houghton, 387 Pa. 236, 240, 128 A.2d 58, 60 (1957). This is especially true in the present context where we are dealing with familial rights, an area into which the state can intrude only with caution and restraint. In re Custody of Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980). In addition, we note that a full and complete record and comprehensive opinion are required for us to review a custody decision. In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). Since the court and the parties limited the hearings in this case to the narrow issue of visitation, we do not have such a record as would enable us to say that custody of Damon should be with one party or the other. See, e.g. In re Desiree B., 304 Pa.Super. 461, 450 A.2d 1003 (1982). Therefore, to the extent that the order appealed from goes beyond the determination of Joan B.’s visitations with Damon, we must vacate it.

Order affirmed as to visitation with the natural mother and vacated as to formulation of a new permanency plan consistent with the trial court’s findings. Case remanded for further consideration. We do not retain jurisdiction.

      . Our decision in this case is influenced by the fact that this is a temporary reduction in visits rather than a long-term cessation of visits. In the latter case, of course, the trial court must find, by clear and convincing evidence, that visitation poses a grave threat to the child. In Interest of Rhine, 310 Pa.Super. 275, 456 A.2d 608 (1983).

      . The precise language of the order is “to formulate a new permanency plan consistent with the findings of this court." When read in conjunction with the trial court’s opinion, the clear implication is that Damon is not to be returned to the custody of his natural mother.

      . For example, present at the October 30, 1981 hearing was one witness scheduled to testify for Joan B. who did not testify after the following exchange between the hearing judge and counsel:
      THE COURT: Mr. Sandow, do you believe the testimony of Mrs. Powell is relevant to the narrow issue that we have raised?
      MR. SANDOW: Well, Your Honor, to the extent that we are talking about the narrow issue, we are willing to not hear testimony here today.....


author: POPOVICH, Judge: VAN der VOORT, Judge,

text:
    461 A.2d 216
    Karen C. BIERER, Administratrix for the Estate of Daniel R. Bierer, III., and Karen C. Bierer, Individually and as Beneficiary v. NATIONWIDE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1983.
    Filed April 29, 1983.
    Reargument Denied July 8, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Harry J. Cancelmi, Jr., Waynesburg, for appellant.
    James Hook, Waynesburg, for appellees.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   POPOVICH, Judge:

On June 5, 1970, Daniel R. Bierer, III, appellee’s husband, applied for and secured a life insurance policy in the amount of $10,000 from appellant, Nationwide Insurance Company. The policy contained a guaranteed insurability option rider which allowed the insured to apply for $10,000 additional insurance in five years. Douglas Black, appellant’s agent who sold the original policy, came to appellee’s home on April 28, 1975, for the purpose of explaining the aforesaid option rider. On that day, Mr. Bierer signed the application to purchase additional insurance as provided in the guaranteed option rider and received a new policy for the additional $10,000 insurance in return for a downpayment of $36.82, which represented two month’s premiums. The application and new policy, as well as the original policy, provided that the new policy would not become effective before the stated option date, June 18, 1975. On May 21, 1975, appellee’s husband was killed in a mining accident. Subsequent to the insured’s death, Nationwide paid the proceeds of the original policy but denied liability on the option rider policy and refunded the premiums which had been paid thereon.

The case went to trial in May, 1982, and a jury rendered a verdict in favor of appellee for the face amount of the policy together with interest from the date of the insured’s death. Appellant’s post-trial motions were denied, and judgment was entered on the verdict.

Appellant raises one question on appeal:

“Does a beneficiary have a right to recover from the insurance company where the insured, pursuant to a 1970 whole life policy, exercised a guaranteed insurability option, applied for additional insurance on April 28, 1975, with express language in the original policy and application making additional insurance policy coverage effective on the option date, June 18, 1975, paid advanced premium, received a delivered policy also stating policy effective date of June 18, 1975, but insured died May 21, 1975, prior to the effective date?”

The answer to this question hinges on the application of the facts of this case to the rule in Collister v. Nationwide, 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979). We find that the Collister rule applies and, accordingly, affirm the judgment below.

In Collister, .appellant’s husband applied to appellee, Nationwide Life Insurance Company, for life insurance. Appellee, through its agent, accepted $60.66 from appellant’s husband at the time of the application. This amount represented a two month premium payment in exchange for which appellant’s husband received a “conditional receipt.” Appellant’s husband was killed in an automobile accident before Nationwide had issued the policy applied for or rejected the application, and before the deceased had taken a medical examination as required by the application. Nationwide denied liability asserting that certain conditions contained in both the application and the conditional receipt had not been fulfilled by the appellant. Indeed, Justice Pomeroy in his dissent, points to the clarity with which the conditions were conveyed in the receipt:

“Initially, it is important to note that we are not here dealing with a lengthy and complex document which is arguably incomprehensible to the average layman. Rather, we are dealing with a short and explicit form of premium receipt presented and explained to the applicant when he signed the application and made a payment on account of initial premium. As will be noted from the text of the receipt, attached to the majority opinion, the top line of the paper declares in capital 12-point letters that ‘NO INSURANCE WILL BECOME EFFECTIVE PRIOR TO POLICY DELIVERY UNLESS THE ACTS REQUIRED BY THIS RECEIPT ARE COMPLETED.’ The main text of the receipt, in 10-point type, then details the two steps to be completed, and plainly states that the insurance ‘shall take effect and be in force ... from the date of the last medical examination’ from which insurability is determined. This is followed by the warning that ‘Unless all acts required are completed, no insurance shall take effect hereunder.’ On the reverse side of the receipt form, under the heading ‘IMPORTANT’ appears a final admonition to the application. It is in 14-point type, repeated here for the sake of completeness:
‘The Company reserves the right to require a medical examination. Until you can provide proof that you are insurable, the Company provides no insurance.
‘If you are requested to have an examination, don’t delay. Make arrangements promptly. There is no insurance until a satisfactory medical examination has been made and all the conditions of this receipt are completed.’ ” Collister, supra, 479 Pa. at 601, 388 A.2d at 1357 (Pomeroy, J. dissenting).

The Supreme Court accepted appellant’s argument that a temporary insurance contract came into being between appellant’s husband and Nationwide at the time Nationwide accepted the application form and the first premium payment. The Court stated:

“To accept the insurer’s argument that its liability is contingent on a condition precedent permits the insurer to hold itself immune from liability while it considers whether to accept or reject the risk ... or, as in the instant case, during the period between receipt of the application and premium deposit and the date of the medical examination, while at the same time enjoying the benefits that flow from immediate collection of the premium.” Id., 479 Pa. at 588, 388 A.2d at 1350.

Relying extensively on cases from other jurisdictions which had discussed the theory of temporary insurance contracts, the ColUster court quoted Smith v. Westland Life Insurance Company, 15 Cal.3d 111, 123 Cal.Rptr. 649, 539 P.2d 433 (1975):

“While the court found that the language of the application and receipt clearly made company approval a condition precedent to the insurer’s full liability under the policy, the court nevertheless ruled that the company must be held liable to the full extent under the policy applied for, including accidental death benefits, unless it satisfied the burden of proving that the provisions limiting the company’s liability were called to the applicant’s attention or that the applicant had read them. In so holding, the court reasoned that ‘the very acceptance of an advance premium by the carrier tends naturally toward an understanding of immediate coverage though it be temporary and terminable .... In short, to the ordinary layman, payment of the insurance premium constitutes payment for immediate protection, and it is unlikely that he would carefully read the fine print contained in a receipt unless he was given the incentive to do so by the carrier’s agent.’ (Citations omitted.) (Emphasis in original.)” Id., 479 Pa. at 589, 388 A.2d at 1351.

The high Court found that normal contract principles were no longer applicable in insurance transactions and that the reasonable expectations of the insured are now the controlling consideration in such cases. The Court stated that proper resolution of the question depends upon an analysis of the totality of the transaction involved:

“In situations where the circumstances of the transaction do not indicate that the insurer intended to provide interim insurance, but nevertheless show that the insurer accepted payment of the first premium at the time it took the application, it is then up to the insurer to establish by clear and convincing evidence that the consumer had no reasonable basis for believing that he or she was purchasing immediate insurance coverage.
The reasonable expectation of the insured is the focal point of the insurance transaction involved here. E.g., Beckham v. Travelers Ins. Co., 424 Pa. 107, 117-18, 225 A.2d 532, 537 (1967). Courts should be concerned with assuring that the insurance purchasing public’s reasonable expectations are fulfilled.
Thus, regardless of the ambiguity, or lack thereof, inherent in a given set of insurance documents (whether they be applications, conditional receipts, riders, policies, or whatever), the public has a right to expect that they will receive something of comparable value in return for the premium paid. Courts should also keep alert to the fact that the expectations of the insured are in large measure created by the insurance industry itself. Through the use of lengthy, complex, and cumbersomely written applications, conditional receipts, riders, and policies, to name just a few, the insurance industry forces the insurance consumer to rely upon the oral representations of the insurance agent. Such representations may or may not accurately reflect the contents of the written document and therefore the insurer is often in a position to reap the benefit of the insured’s lack of understanding of the transaction.” (Emphasis added) Id., 479 Pa. at 594, 388 A.2d at 1353.

The Court went on to state:

“If insurers wish to protect themselves from liability during the interim period between the taking of the application and approval (or between the application and successful completion of a required medical examination), all that need be done is to delay acceptance of the applicant’s money until that time. If, on the other hand, the insurer wishes to enjoy the substantial benefits it receives by securing the customer’s cash at the time of the taking of the application, it must return what the customer can reasonably expect that the insurer is selling: i.e., immediate coverage. Alternatively, the insurer could inform the prospective applicant, before any money changes hands, that it does not intend to give the customer anything in return for advance payment, and that the customer is actually paying money now for nothing because no insurance will take effect until approval. Such notification would have to be given before the consumer paid the initial premium in order to avoid placing that consumer at the psychological disadvantage of having to ask for a return of the premium if he or she is dissatisfied with such terms. Furthermore, any such notice must be made in a manner calculated to bring the facts of the transaction—that the customer is paying money now, but getting nothing until later—to the customer’s attention in no uncertain terms. As such, the notice could not be printed on a receipt.
Only after such an unequivocal showing that the consumer is to be given no immediate benefits in return for his or her cash payment can a court say that the insurer has sustained its burden of establishing by clear and convincing evidence that the consumer could not reasonably have expected to receive immediate coverage in return for the payment of the'required premium.” (Emphasis in original). Id., 479 Pa. at 597-98, 388 A.2d at 1355.

In the instant case, Nationwide argues that it has a full and complete contract defense since the original 1970 policy containing the guaranteed insurability option clearly stated that no additional insurance could be effective prior to the option date of June 18, 1975. Further, appellant argues that the original contract allowed the deceased to apply for additional insurance 60 days prior to the effective date, such application clearly stating that no insurance would be effective prior to June 18, 1975. The following point for charge incorporating this contract defense was submitted by appellant but disapproved by the trial court:

“(13) These principles of law must be applied to your determination of when the attachment of risk began in the Nationwide-Bierer transaction. Companies issuing insurance policies have the right to fix in the policy the date of its beginning. The parties to the contract may fix when the contract shall go into effect. The effective date of the contract may be specified in the policy at once, prior to issuance, or in the future. If there is no ambiguity, the contract speaks for itself. If the contract plainly sets forth that the obligations were to begin on a date certain, with no other date mentioned, you are not at liberty to interpret the contract otherwise.”

Although the parties to an insurance contract may fix some future date as the effective date of the policy, Collister places a burden on the insurer to prove by clear and convincing evidence that the consumer had no reasonable basis for believing that coverage would not be immediately effective. The fact that the policy rider and application are unambiguous in their provisions does not, by itself, defeat the reasonable expectations of the consumer. We hold that the trial court did not err in disapproving appellant’s Point for Charge No. 13.

Appellant also contends that a temporary insurance contract theory is inapplicable since there was no period of time in which the insured had to wait for review of the application. The option rider was for guaranteed insurance, health credentials being irrelevant. Nationwide argues that in return for the two months premium paid in advance, the deceased received the benefit of knowing his life was going to be insured for an additional $10,000 as of June 18, 1975.

These grounds for distinguishing this case from Collister lack merit. The fact that a policy was issued immediately upon payment and that no medical exam had to be taken because the additional insurance was guaranteed, would more clearly indicate to a consumer that coverage would be immediate upon payment of premiums than where an application for insurance was expressly conditioned on the health of the applicant.

The jury heard the testimony of the insured’s wife and the appellant’s agent, who were both present when the option transaction occurred. Neither of those witnesses stated that the agent explained to Mr. Bierer that the additional $10,000 would not be effective until June 18, 1975. Appellant’s arguments rest on the fact that the original policy, option rider, application and new policy all clearly indicated that the additional insurance under the option rider would not be effective until June 18, 1975. The Supreme Court announced in Collister that such evidence is not sufficient by itself to prove that the consumer did not reasonably expect to be covered upon payment of premiums.

Appellant has suggested several errors by the trial court in applying the Collister case in its charge to the jury and in certain evidentiary rulings. We have thoroughly reviewed the record and find that appellant’s contentions of error lack merit.

For the above-stated reasons, we affirm the judgment in favor of appellee.

VAN der VOORT, J., files a dissenting statement.

VAN der VOORT, Judge,

dissenting:

I respectfully dissent. I believe that the majority is unnecessarily extending Collister, While his dissenting opinion in Collister creates no precedent and cannot be cited as authority, the majority in the instant case are rewriting the contract and in this situation Justice Pomeroy’s words are aptly written in Collister as follows: “It is not the function of a court to rewrite express and unambiguous terms in a contract to comport with what that court might deem a fairer result in a particular situation ____ This presumably elementary aspect of the law of contracts is not changed because the contract pertains to insurance.” Collister, 479 Pa. at 604, 388 A.2d 1346.

      . Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979).


text:
    461 A.2d 221
    COMMONWEALTH of Pennsylvania v. Anthony GRIGGS a/k/a Anthony Franklin, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1983.
    Filed April 29, 1983.
    Reargument Denied July 5, 1983.

      Stanton M. Lacks, Philadelphia, for appellant.
    Francis Gralnek Gerson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   PER CURIAM:

Appellant, Anthony Griggs, pleaded guilty on June 15, 1976, when he was a fifteen-year-old juvenile, to murder in the third degree, robbery and criminal conspiracy. He was sentenced to eleven and one-half to twenty-three months on the murder charge, eleven and one-half to twenty-three months on the criminal conspiracy charge (to run concurrently), and two to ten years on the robbery charge, which sentence was suspended; a ten year probation period was to run from the end of the sentences on the murder and criminal conspiracy charges.

Appellant’s probation began when he was released from the State Forrestry Camp on November 15, 1977. On October 2, 1979, appellant was arrested and charged with robbery, criminal conspiracy, simple assault and recklessly endangering another person. On July 11, 1980, appellant was found not guilty on those charges in a non-jury trial after which a Gagnon II hearing was held on September 22, 1980. The hearing judge found appellant to have violated his probation based upon his participation in the October 2, 1979 incident and therefore revoked his probation. A sentencing hearing was held on December 1, 1980 and appellant was sentenced to incarceration of from two to twenty years on the original robbery conviction; appellant appeals from that judgment of sentence.

Appellant claims that the trial court erred in finding him in violation of probation. We note preliminarily that the burden of proof is different in Gagnon II hearings and criminal trials. This Court summarized that difference in Commonwealth v. Brown, 281 Pa.Super. 348, 350-351, 422 A.2d 203, 204 (1980):

In Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973), our Supreme Court stated:
At ... trial the issue is whether the elements of the offense or offenses charged are present.... The focus of a probation violation hearing, even though prompted by a subsequent arrest, is whether the conduct of the probationer indicates that the probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future antisocial conduct.
Id., 452 Pa. at 114-15, 305 A.2d at 708. Unlike a criminal trial where “the burden is upon the Commonwealth to establish all of the requisite elements [of the offense(s) charged] beyond a reasonable doubt,” id., 452 Pa. at 114, 305 A.2d at 708, at a revocation hearing the Commonwealth need only prove a violation of probation by a preponderance of the evidence. See Commonwealth v. Del Conte, 277 Pa.Super. 296, 419 A.2d 780 (1980) (citing United States v. Iannece, 405 F.Supp. 599 (E.D.Pa.1975); Commonwealth v. Lipton, 238 Pa.Super. 124, 352 A.2d 521 (1975)).

Brown squarely held that acquittal on criminal charges, as in the instant matter, does not bar probation revocation premised upon those same charges. And this Court in Commonwealth v. Fleeger, 292 Pa.Super. 310, 313, 437 A.2d 60, 62 (1981) (quoting Commonwealth v. Spinozzi, 236 Pa.Super. 32, 35, 345 A.2d 181, 183 (1975)) stated: “[A] bare assertion of an arrest, ‘without a conviction, is lacking in probative value. Thus, before a court may revoke probation, factual evidence, in addition to the fact of arrest, must be presented.’ ”

Appellant suggests that the facts presented at the Gagnon II hearing were not of sufficient probative value to sustain the revocation. We proceed to review the record of the hearing in order to evaluate appellant’s claim. The victim of the October 2, 1979 chain snatching incident testified at the hearing that he was in the northbound Broad Street Subway train in the late evening when a group of men walked toward him and one of them grabbed his chain. His mother was with him in the train. He walked toward the group to retrieve the chain and became involved in a struggle. As a result of that fight, the complainant sustained a cut below his right eye and a loose tooth. He also lost his eyeglasses. He stated that without those glasses, his vision was impaired. The complainant also testified that the train was packed and that he could not provide even a rough estimate as to the number of men involved in the incident, although he subsequently stated in response to a question from the Assistant District Attorney that more than three men were involved. The notes of testimony next reflect that the victim came into contact with two police officers, but it is not clear when this contact occurred. The victim testified that he told the officers he could pick out some of the group members. He testified: “[W]e went from the train we were on to them. When we got to the last train the two men that I picked out were on the train.” Notes of Testimony (“N.T.”) 9/22/80 at 28. When asked whether he saw in the courtroom the men to whom he pointed the night of the attack, he stated clearly that he could not make a positive identification. He did testify that he selected the two men the night of the incident as having been in the group that attacked him based upon the clothing that the two of them wore. No explication was offered as to characteristics of the clothing that caused the victim to choose those two men. In answer to a subsequent question on direct examination, he reiterated that the clothing they wore was the only basis for his picking them out for the officers. The arresting officer had previously testified that he arrested appellant based upon information received from the victim and the victim’s mother. The officer did not witness the attack. The lower court found that the appellant participated in the incident and that he therefore had violated the terms of his probation.

We find to the contrary, however, that the revocation of probation based upon the October 2, 1979 incident to which the complainant’s testimony so tenuously connected appellant was not predicated upon evidence of sufficient probative value, and we therefore vacate judgment of sentence. To summarize the record before us, there was testimony at the Gagnon II hearing that the victim selected two men as being members of a group of attackers on a crowded train. That selection was premised solely upon the clothing they wore (the uniqueness of which is nowhere of record). Further, the victim was unable to identify positively appellant either at trial or at the revocation hearing as being one of his attackers. This simply is not enough to justify a finding that appellant participated in the criminal conduct for which he was charged and acquitted.

Furthermore, appellant was not found to be in technical violation of the terms of his probation. It is clear, of course, that technical violations of probation are sufficient grounds for revocation. Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979) (and cases cited therein). We note that at the Gagnon II hearing, the evidence indicated that appellant had never reported to the probation authorities after his release in November 1977, but the agent of the State Board of Probation and Parole testified that he did not know whether appellant had been advised of an obligation to report to probation authorities. The probation agent testified that his first contact with appellant was on March 26, 1980 in a City Hall cell room four months after he had been arrested for the subway chain snatching incident and more than two and one-quarter years after his November 15, 1977 release. There were no attempts to contact appellant after his release until the probation board was informed that appellant had been rearrested. In its opinion, the lower court stated that “there was a serious question as to whether the defendant was advised that he had to report and this Court specifically found that he had not technically violated his probation by not reporting.” Lower Court Opinion at 2-3.

We emphasize the testimony of that probation agent that departmental records do not indicate any notification of appellant that he was to report to probation authorities. No efforts were made to structure a program aimed at achieving the rehabilitative goal of the probation system. Lamentably, no efforts were made to supervise appellant or to help him adjust to society. As the United States Supreme Court noted in Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973) (quoting F. Remington, D. Newman, E. Kimball, M. Melli and H. Gold-stein, Criminal Justice Administration, Materials and Cases at 910 (1969)) (footnote omitted):

Revocation ... is, if anything, commonly treated as a failure of supervision. While presumably it would be inappropriate for a field agent never to revoke, the whole thrust of the probation-parole movement is to keep men in the community, working with adjustment problems there, and using revocation only as a last resort when treatment has failed or is about to fail.

Where, as here, no treatment or supervision was provided, we conclude that appellant now must be given the opportunity to reenter the community aided by the supervision which our probation system is obligated to provide.

Because we find that the revocation of appellant’s probation rested upon a finding of participation in criminal activity which was not substantiated by the testimony offered at the Gagnon II hearing, we vacate judgment of sentence.

Judgment of sentence is vacated, and this case is remanded with instructions to reinstate the original order of probation. Jurisdiction is relinquished.

SPAETH, J., concurs in result.

      . As noted in Commonwealth v. Del Conte, 277 Pa.Super. 296, 298 n. 2, 419 A.2d 780, 781 n. 2 (1980), "[w]hen [as here] the probation or parole violation is based on the commission of a crime, a preliminary hearing may substitute for a Gagnon I hearing. Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977); Commonwealth v. Parker, 244 Pa.Super. 113, 366 A.2d 941 (1976).”

      . We note that the victim did not identify appellant at the non-jury trial either. The hearing judge did not preside at appellant’s trial on the charges arising out of the October 2, 1979 incident, and notes of testimony of that trial are not a part of the record. After appellant protested his innocence at the sentencing hearing, the hearing judge offered his belief "that the reason for the finding of not guilty [at the non-jury trial] was the result of the Commonwealth’s witness at that time not showing up.” N.T. 12/1/80 at 29. The Assistant District Attorney corrected that mistaken impression by informing the court that the victim indeed had testified, but that he had failed positively to identify appellant.

      . Appellant also raises claims of an improper sentence and ineffective assistance of prior counsel. In light of our disposition, we need not reach those issues.