text:
    437 A.2d 1236
    Joseph A. BANYAS, III, Appellant, v. LOWER BUCKS HOSPITAL and Young Kim, M.D. and C.R.N.A. Tanya O’Neill and Alvin Merkin, M.D.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Dec. 4, 1981.

      Steven E. Wolfe, Bensalem, for appellant.
    Arthur B. Walsh, Doylestown, for Lower Bucks, appellee.

      Allan C. Molotsky, Philadelphia, for Kim, etc., appellees.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   BROSKY, Judge:

This suit was instituted by appellant who seeks damages for mental distress which he claims appellees caused him to suffer. The complaint contained counts charging appellees with both intentionally and negligently inflicting emotional distress upon him. The lower court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. We affirm the order as to the negligence counts but reverse as to the count alleging an intentional infliction of mental distress by appellees.

Our Supreme Court has summarized the guidelines we are to follow in determining whether the preliminary objections were properly granted.

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other, hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Finally, where the propriety of an order sustaining a demurrer is being reviewed by a court of last resort, the fact that the theory for recovery relied upon has not been previously sanctioned, is not conclusive. It must be remembered that “[ejvery cause of action . . ., however, was once a novel claim and the absence of Pennsylvania authority for appellant’s proposition is not an end to the issue.” Papieves v. Kelly, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).

Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

We have paraphrased the complaint’s allegation of facts pertinent to this appeal as follows. On July 27, 1977, Thomas Lavin was admitted to the emergency room of Lower Bucks Hospital complaining of facial and jaw injuries which resulted from an altercation with Joseph A. Banyas, III. Mr. Lavin was admitted to the hospital for surgical reduction of what was diagnosed as a fractured jaw. On July 28,1977, Mr. Lavin was taken to the operating room for the reduction and was placed under the care of Alvin Martin, M.D., Young Kim, M.D., and C.R.N.A. Tanya O’Neill. Mr. Lavin died at that time due to the negligence of the named defendants (the hospital and persons named in previous sentence), their agents, servants or employees acting within the course and scope of their employment. The death of Thomas Lavin was due solely to the acts of the defendants and was due to no act or failure to act on the part of Mr. Banyas.

The complaint alleges three causes of action, all of which incorporate the above recited factual allegations. The first count charges that the defendants knowingly, wilfully, recklessly and intentionally prepared records indicating that Mr. Lavin’s death was due solely to the injuries inflicted upon him by Mr. Banyas. Banyas stated in his complaint that as a result of the wrongful preparation of records, he was charged with the crimes of aggravated assault, simple assault, recklessly endangering another person, murder, third degree murder and voluntary manslaughter. He seeks recovery for severe mental anguish and emotional stress which he claims to have suffered as a result of having been charged with the above-mentioned crimes.

The second count charges that Mr. Banyas suffered damages as a result of what he claims was the negligent, reckless and wanton preparation of records by the defendants.

The third count traced the cause of Mr. Banyas’ being charged with crimes to the death of Mr. Lavin and sought damages for what the complaint alleged to be the negligence which caused his death.

The intentional infliction of mental distress is an actionable wrong in Pennsylvania. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970); Jones v. Nissenbaum, Rudolph and Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (1979).

Section 46 of the Restatement (Second) of Torts § 46 (1965) provides in part:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Comment d to Section 46 explains,

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, “Outrageous!”

As the Supreme Court said in Jones, supra, “It is apparent that the gravamen of this tort is that the conduct complained of must be of an extreme or outrageous type.” Id., 244 Pa.Super. at 383, 368 A.2d at 773.

We have found the Third Circuit Court’s opinion in Chuy, supra, helpful in our analysis of this case. In Chuy, a professional athlete sought recourse for mental distress he experienced as a result of the publication of a newspaper article that falsely stated that he suffered from a potentially fatal disease. The plaintiff contended that making such a false statement constituted “extreme and outrageous conduct.” The court found sufficient evidence to support his claim and wrote, upholding motions for judgment N.O.V. and for new trial that,

Accepting as we must at this stage Chuy’s version of the events, we have a statement to the press by a physician assumed to know the facts that a person is suffering from a potentially fatal disease, even though the physician was aware that the person was not stricken with that condition. This, of course, constituted intolerable professional conduct. 595 F.2d at 1274.

The court continued explaining that

Reckless conduct causing emotional distress renders an actor as liable as if he had acted intentionally. . . [I]f Dr. Nixon’s statements were intentional, he need not have been aware of the natural and probable consequences of his words. It is enough that Chuy’s distress was substantially certain to follow Dr. Nixon’s rash statements. Intentionally to propagate a falsehood, the natural and probable consequences of which will be to cause the plaintiff emotional distress is equivalent, in the language of the Restatement comment i, to the “deliberate disregard of a high degree of probability that the emotional distress will follow.”
595 F.2d at 1265.

If the appellees in the present appeal, defendants below, in fact intentionally propagated a falsehood when they wrote that Mr. Lavin’s death was attributable solely to Mr. Banyas, we believe that they could also be found liable for the emotional distress suffered by Mr. Banyas. We would find an intentional misstatement of the cause of death to be intolerable professional conduct and extreme and outrageous. Certainly, Mr. Banyas was substantially certain to suffer emotional distress following such a report. Therefore, if proven, the facts alleged by appellant in this first count would entitle him to relief.

We come to a different conclusion as to the remaining counts, both of which are based on averments of negligence.

The second count seeks recovery for the negligent infliction of mental distress and is based on the factual allegations previously recited.

The Restatement (Second) Torts, § 436 provides:

§ 436. Physical Harm Resulting from Emotional Disturbance
(1) If the actor’s conduct is negligent as violating a duty of care designed to protect another from a fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability.
(2) If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.
(3) The rule stated in Subsection (2) applies where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate family occurring in his presence.

Restatement (Second) Torts, § 436A states:

§ 436A. Negligence Resulting in Emotional Disturbance Alone
If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

Comment A to the Section explains that “Under the rule stated in this Section, the negligent actor is not liable when his conduct results in the emotional disturbance alone, without the bodily harm or other compensable damage.” See also Sinn v. Burd, supra, 486 Pa. at 175-177, 404 A.2d at 687, 688 (Roberts, J. dissenting).

Appellant’s complaint avers no physical harm. We find it does not state a cause of action for negligent infliction of emotional distress. See Niederman v. Brodsky, 436 Pa. 392, 261 A.2d 84 (1970), and Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), both of which discuss this tort. In each case, the opinion states that damages were sought for physical and emotional injuries.

Until 1970, our courts required as an element of the tort that the plaintiff has suffered a physical impact from a negligent force. See Sinn v. Burd, supra, at 675, 676. Neiderman, supra, altered this rule to the extent of granting a cause of action to a plaintiff within the “zone of danger” of such impact. Sinn abolished that requirement where a mother witnesses the violent death of her small child and suffers injury therefrom. The later case, Hoffner v. Hodge, 47 Commonwealth 277, 407 A.2d 940 (1979), emphasizes the narrowness of the holding in Sinn v. Burd.

In sum, given the restrictions that our courts have consistently imposed on recovery for this tort, we would err in finding a cause of action without an allegation of bodily harm.

Appellant’s third count seeks damages for what the complaint alleges was the negligent causation of Mr. Lavin’s death.

It is axiomatic that a finding of negligence requires a finding that the defendant breached a duty owed to the plaintiff. The complaint does not allege nor do we find a duty owed to Mr. Banyas as to the care rendered to Mr. Lavin.

Our Supreme Court discussed the concept of duty in Sinn v. Burd, supra. Citing Prosser Palsgraf Revisited, 52 Mich. L.Rev. 1, 14-15 (1953), the court noted:

In the end the court will decide whether there is a duty on the basis of the mores of the community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.” Id., 486 Pa. at 164, 404 A.2d at 681.

It would be impractical to find a duty here. It was not Mr. Lavin’s death that caused any emotional distress suffered by appellant, but, rather, his being accused of causing that death which may have harmed him. Such accusation did not arise from the fact of the death, but from the facts surrounding the altercation between Messrs. Lavin and Banyas, and perhaps, from an explanation of the cause of death given by the medical personnel.

Finding no duty owed to Mr. Banyas as to care given to Mr. Lavin, we find that appellant did not state a cause of action in the third count of his complaint.

The order of the lower court granting appellee’s motion for demurrer on the first count is reversed; the order is affirmed as to counts two and three.

      . Although Mr. Justice Roberts states in his dissent in Sinn v. Burd, that the complaint alleged only emotional injuries, the majority opinion states that plaintiff sought recovery for physical and mental injuries. We must assume that the decision of the court was based on the belief that such injuries were alleged.

      . Parenthetically, we note that if appellant were found to have such a cause of action, so would any number of persons who suffered emotional damages as a result of Mr. Lavin’s death.


source: Caselaw Access Project

author: VAN der VOORT, Judge:

license: Public Domain

text:
    437 A.2d 1240
    James M. WILTROUT and Emma Wiltrout, Individually, v. CIRCLE MOBILE HOME SALES, INC., t/d/b/a Lincoln Mobile Home Sales and Frank Rizzo, Individually and Winifred Rizzo, Individually, and Frank and Winifred Rizzo, t/d/b/a Lincoln Mobile Home Company, and the Bell Telephone Company of Pennsylvania, Jointly and Severally. Appeal of BELL TELEPHONE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Dec. 4, 1981.
    Petition for Allowance of Appeal Denied April 2, 1982.

      James F. Manley, Pittsburgh, for appellant.
    Patrick H. Mahady, Greensburg, for Wiltrout, appellees.
    Rabe F. Marsh, Greensburg, for Circle, appellees.
    Before HESTER,. BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Plaintiffs-appellees filed this present action in trespass against the owners of a piece of land (referred to hereinafter as the Rizzo appellants, or the Rizzo group), and against Bell Telephone Company of Pennsylvania. The trial culminated in verdicts for the husband-appellee for $150,000 and for the wife-appellee for $20,000, and a verdict in favor of the Rizzo group. Motions for new trial and for judgment n.o.v. were refused by the lower court and Bell Telephone has filed this appeal.

James M. Wiltrout, husband-appellee (hereinafter referred to as appellee), was employed at the time of the accident by Penn Line Service, Inc. That company had a contract with Bell Telephone Company to perform work on the Bell Telephone systems, involving the placing, removing, or rearranging of telephone facilities.

On the morning of the accident, June 6, 1975, appellee and his foreman, a Mr. Snyder, had gone to the Bell Telephone office and been given their assignment for the day. Appellee had climbed a telephone pole across the street from the Rizzo premises and removed wire from the pole. He and Snyder then came on the Rizzo premises in an area where Bell Telephone had a right-of-way, tested the telephone pole there by probing with a screwdriver, hitting it with a hammer, and shaking the pole. Appellee then climbed the pole and was engaged in removing the wires when the pole snapped off at its bottom, causing appellee to fall to the ground, injuring him.

After the accident it was discovered that the pole was rotted at its core about 12 to 18 inches below the ground level, although, even in the area below the surface, the exterior wood seemed hard and strong. The pole had been in position about 18 years; the defect in the interior could have been detected by a boring test not usually done until a pole was in place for about 20 years.

Bell Telephone’s first contention on appeal is that it was a “Statutory Employer” of appellee, liable to pay workmen’s compensation benefits, if required, along with his actual employer Penn Line Service, and therefore immune from liability in tort to the plaintiffs.

77 Purdon’s Statutes, Section 52, defines a Statutory Employer as follows:

An employer who permits the entry upon premises occupied by him or under his control of the laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his employee.

(1) An employer who is under contract with an owner or one in position of an owner;

(2) Premises occupied by or under the control of such employer;

(3) A subcontract made by such employer;

(4) Part of the employer’s regular business entrusted to such subcontractor; and

(5) An employee of such subcontractor.

The lower court and the parties concede that conditions 1, 2, 3, and 5 are present in this case; thus Bell is (1) an employer, (2) occupying and controlling the right-of-way, (3) with a subcontract made with Penn Line Service, and (5) appellee is an employee of the subcontractor, Penn Line Service. The lower court stated in its opinion:

[T]he real question centers around number 4, i.e.—Was a part of Bell Telephone’s regular business entrusted to the plaintiff’s employer Penn Line Service?
In the instant case, the question then boils down to whether or not taking down of telephone lines was a part of the function and duty of Bell Telephone Company in the performance of its regular business of providing telephone communications for its customers, or whether or not it was incidental work of maintenance and not necessarily a part of Bell Telephone’s regular business. See McDonald vs. Levinson Steel Co., 302 Pa. 287 [153 A. 424] (1930).
After review of the transcript in question, it is the opinion of this Court that as a matter of law, Bell Telephone Company was not in the position of statutory employer with the plaintiff James M. Wiltrout.

The facts generally applicable in this case to the legal problem of whether Bell Telephone was the “Statutory Employer” of appellee are not really in dispute. At the close of appellees’ case in chief, counsel read into evidence portions of the Amendment to Co-Defendant’s New Matter:

1. At all times material herein, the Defendant, The Bell Telephone Company of Pennsylvania, was the owner of the telephone pole referred to in the Plaintiffs’ Complaint.
2. At all times material herein, the telephone pole was owned, maintained and possessed by the Bell Telephone Company as part of its regular course of business.
3. On or about the 12th day of November, 1974, the Defendant, The Bell Telephone Company, entered into an agreement with Penn Line Service ... to remove various telephone poles within the Bell Telephone System.

Appellee and his associate Snyder testified that at the time of the accident, appellee and Snyder were in the course of their employment for Penn Line Service performing work which they were assigned by Bell Telephone, under the contract with Penn Line Service. The wire was being removed and thereafter the pole would have been removed, as the record establishes, as part of the process of substituting underground wiring for surface wiring on poles. Contrary to the conclusion of the court below, as quoted above, we believe that the work being done by appellee and Snyder at the time of the accident was part of the regular business of the telephone company, specifically, the maintenance of telephone wires to provide facilities to its customers for communication by telephone. The case on its facts is clearly distinguishable from McDonald v. Levinson Steel Co., supra, where Levinson, whose “regular business” was erecting steel buildings for others, was held not to be engaged in that “regular business” where Levinson had contracted with another firm for the latter to construct a building for Levinson’s own use. Stipanovich v. Westinghouse Corp., 210 Pa. Superior Ct. 98, 231 A.2d 894 (1967).

A second contention of appellant is that appellee’s evidence affirmatively establishes that there was no breach of duty by Bell Telephone.

The proof of negligence on the part of Bell Telephone in this case seems to derive almost entirely from the unexpected collapse of the pole under the weight of the appellee, the discovery thereafter that the interior of the wood below the ground level was in fact rotted and that this rotting could have been discovered by a fairly routine boring test (but not by the tests performed by appellee before climbing the pole, i.e., probing with a screwdriver, “sounding” by striking it with a hammer, and shaking the pole), and the lack of inspection of the pole during the years it was in place. The trial judge submitted to the jury the question of proof of negligence on his interpretation of the standards set up in Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974) for proof by circumstantial evidence, and appellant does not press at the appellate level any complaint that the charge was improper. Instead, appellant in effect, argues that all of the tests it might have made to check the soundness of the pole (except the boring test, which, according to appellee, was not due for five years) were made by appellee and indicated that the pole was sound.

We think the evidence of negligence on the part of the phone company was questionable, but, in any event, since the phone company was a Statutory Employer, as we have concluded above, the court should not have submitted the issue of the negligence of the phone company to the jury.

The Rizzo group has filed a cautionary brief pointing out that the verdict and judgment in its favor has not been appealed from, and should not be disturbed, irrespective of our decision on the phone company’s appeal. This is correct.

Judgment reversed and remanded with instructions to enter judgment n.o.v. for appellant Bell Telephone Company of Pennsylvania.

HESTER, J., concurs in the result.

      . Appellant’s brief does not discuss the question of whether maintenance and replacement of the telephone poles and the wires is a part of the appellant’s “regular business”. The general problem is preserved on appeal, nevertheless, as an implicit part of Argument A, discussed ip pages 8-12 of the brief. We think, therefore, that the issue has not been waived. See Turner Construction Co. v. Hebner et al., 276 Pa. Superior Ct. 341, 419 A.2d 488 (1980).


author: PER CURIAM:

text:
    437 A.2d 1244
    COMMONWEALTH of Pennsylvania v. Lewis K. BAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Dec. 4, 1981.
    Shaubut C. Walz, III, Public Defender, Newport, for appellant.
    Charles J. Rehkamp, Dist. Atty., New Bloomfield, for Commonwealth, appellee.

      Before BROSKY, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

Appellant was sentenced twice on Count 5 of the charges and was sentenced on Count 20, of which he was not convicted. Judgment of sentence entered November 21, 1979 is vacated and this case remanded for re-sentencing. Jurisdiction is not to be retained by this court.


author: SPAETH, Judge:

text:
    437 A.2d 1244
    Francis FEJERDY, M.D., Appellant, v. Zorana FEJERDY a/k/a Countess Zorana-Romana Fejerdy Budai de Kide.
    Superior Court of Pennsylvania.
    Argued April 6, 1981.
    Filed Dec. 11, 1981.

      Mary Bell Hammerman, Philadelphia, for appellant.
    Neil Hurowitz, King of Prussia, for appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal from an order dismissing an action for lack of prosecution. We reverse and remand for further proceedings.

On April 15, 1974, Francis Fejerdy brought an action in equity to recover property from his wife, Zorana. Since April 1974 Mr. Fejerdy has been represented by a series of attorneys, all of whom were discharged after fee disputes. As a result of these disputes, Mr. Fejerdy’s case was not prosecuted. In March 1980 Mrs. Fejerdy filed a motion to dismiss the action for lack of prosecution. In response, Mr. Fejerdy engaged new counsel, who, at the time of argument on the motion, was informed that prior counsel had not applied for an extension of the 240 day rule, Montgomery County * Rule 407. On September 9, 1980, 6 days after the argument, the lower court entered an order denying Mrs. Fejerdy’s motion to dismiss for lack of prosecution.

Mr. Fejerdy’s counsel then filed a petition for extension of time under * Rule 407. However, on September 15, before the petition was ruled upon, the lower court, without notice to counsel, “revoked” its order of September 9 and granted Mrs. Fejerdy’s motion to dismiss for lack of prosecution. The court stated in its order that “. . . the plaintiff [Mr. Fejerdy] never filed a Petition for Extension of Time, the matter was delayed too long, and therefore, the case had become dormant.”

When this appeal was taken, the lower court issued an opinion in support of its September 15, 1980, order. The opinion, however, did not discuss Mr. Fejerdy’s alleged failure to file a petition for extension of time. Instead, the opinion only discussed why the court believed it was proper to grant the motion to dismiss for lack of prosecution, specifically, the court said that there had been a delay in prosecution, which Mr. Fejerdy had not excused, and which had prejudiced Mrs. Fejerdy. However, the court did not explain why it had nevertheless denied the motion to dismiss on September 9, only six days before granting it. Indeed, the court did not even mention its order of September 9.

On appeal, Mr. Fejerdy raises several issues, one of which is: “Was there not a lack of due process in dismissing the case without notice to counsel of record?” Appellant’s Brief at 3. Because we find that there was a lack of due process, we need not reach the other issues raised.

In Appeal of Curry, 390 Pa. 105, 134 A.2d 497 (1957), the Supreme Court stated, “In all judicial proceedings, actual or constructive, notice and an opportunity to be heard are essential before anyone’s property can be taken from him or be converted into some other kind of property without his consent.” Here, the lower court’s order of September 15, 1980, deprived Mr. Fejerdy of his cause of action, and so deprived him of property, without any notice or hearing. After denying Mrs. Fejerdy’s motion to dismiss the action for lack of prosecution, thereby apparently enabling Mr. Fejerdy to proceed, the court changed its mind, for reasons not apparent either from its opinion or from the record, and, without notice to the parties or any opportunity to be heard, granted the motion to dismiss.

We have considered whether we should simply reverse the lower court’s order of September 15 and reinstate its order of September 9. We have concluded, however, that the fairest way to proceed is to have the matter reconsidered by the lower court de novo.

The order of the lower court is reversed, and the case is remanded with instructions to the lower court to conduct a hearing de novo on the motion to dismiss for lack of prosecution, after which the court shall make findings of fact and enter an order either granting or denying the motion. If either party objects to that order, a new appeal must be taken, as may be permitted by law.


text:
    437 A.2d 1245
    Ari ENOCK, a minor, by his parents and natural guardians, David M. Enock and Marilyn Enock, and David M. Enock and Marilyn Enock, in their own right, Appellants, v. Eleanor S. REIFER and Irwin Reifer.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1981.
    Filed Dec. 11, 1981.

      Stanley W. Greenfield, Pittsburgh, for appellants.
    William C. Walker, Pittsburgh, for appellees.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SPAETH, Judge:

This action in trespass arises from an automobile accident. The trial judge granted the defendants’ motion for a directed verdict. The plaintiffs filed a motion to remove the directed verdict. On March 19, 1980, after argument, the lower court entered an order stating that “plaintiff’s [sic] motion to remove the directed verdict is denied and the prothonotary is directed to enter judgment on the directed verdict for the defendants upon payment of the verdict fee.” The present appeal is from this order. The appeal must be quashed. The docket discloses that the prothonotary has not entered judgment. Rule 301 of the Pennsylvania Rules of Appellate Procedure provides in pertinent part:

(a) Entry upon docket below. No order shall be appeal-able until it has been entered upon the appropriate docket in the lower court.
(c) Orders not appealable. A direction by the lower court that a specified judgment, sentence or other order shall be entered, unaccompanied by actual entry of the specified order in the docket, or a direction that a verdict of a jury be recorded or entered, or an order denying a motion for a new trial, does not constitute an appealable order. Any such order shall be reduced to judgment and docketed before an appeal is taken.

Rule 301(d) provides that a decision may be reduced to judgment “on praecipe of any party,” Pa.R.A.P. 301(d), but here no praecipe was filed.

Quashed.


author: WICKERSHAM, Judge:

text:
    437 A.2d 1246
    COMMONWEALTH of Pennsylvania, v. Donald JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 1, 1981.
    Filed Dec. 11, 1981.
    Petition for Allowance of Appeal Denied March 26, 1982.
    Donald R. Calaiaro, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth appellee.
    Before WICKERSHAM, BECK and WIEAND, JJ.
   WICKERSHAM, Judge:

Following a jury trial before the Honorable George H. Ross of the Court of Common Pleas of Allegheny County, appellant, Donald Johnson, was convicted of burglary, receiving stolen property and possessing the instruments of crime. Thereafter, Judge Ross sentenced appellant to a term of imprisonment of one and one-half to three years. Appellant then filed a timely motion to reconsider sentence which Judge Ross denied. This appeal was taken from the judgment of sentence.

At trial, Bernard Hughes, a fifteen year veteran police officer for the City of Pittsburgh, testified that he received a call at about 12:30 a. m. on April 28, 1980, that there was an alarm coming in at 943 Liberty Avenue in the downtown business area of Pittsburgh. The Fairview bookstore, a store dealing in pornographic material, is located at that address. Hughes testified that he and Officer Lamb, arrived in their police car about two minutes after they received the call and observed Detective Martine standing in front of the store. They proceeded to the rear and discovered a burglary in progress.

A As we entered into Exchange Way, there was a car about a half a car length into Exchange Way. The trunk was open in this vehicle. It was ’72 Cadillac Coupe, and the color was blue, and the trunk was open. There were two black males standing at the rear of the vehicle, and they were placing garbage containers, green plastic garbage containers into the trunk of this automobile. They stopped their movements as we pulled in behind them. The contents of the trash containers were evident, they were visible; they were T.V. video cassettes. Both myself and Officer Lamb exited the police vehicle. I said, “What’s going on here?” to both actors who were standing at the rear of the trunk of the vehicle. And I said, “What’s going on?” And the defendant walked to the—there was a parked vehicle alongside of us—he walked in front of that parked vehicle. I drew my service revolver and told him hold it right there. He ran between the automobile and the wall of the building there, and he was on the other side of this vehicle. He ran past me, and I told him halt. He ran out onto Tenth, and tripped on the curb. He fell to the street. I said, ‘Hold it right there,’ and I ran over to grab him, but he got up very quickly and began running down Tenth Street to Liberty Avenue with myself in pursuit on foot. I had a walkie-talkie with me, and I relayed his description as I chased him across Liberty Avenue down William Penn Way towards Seventh. At no time did I lose sight of the defendant. He turned up Liberty and headed toward Grant Street. I continued, I turned the corner in pursuit of him, and he got up to Grant Street and went over across Grant to where the U.S. Steel Building is, and he ducked down behind parked cars. I saw him drop down, and I radioed. ‘There he is,’ because 2-3 car had just come down Grant. I said, ‘There he is, he’s down behind the cars.’ They got out of their vehicle, ran over to him and grabbed him, and we arrested him.

Record at 14-16.

On this appeal it is the contention of the appellant that he was denied his constitutional right to due process when the sentencing judge considered appellant’s juvenile record. There is no merit to this contention and we will affirm the judgment of sentence.

In Commonwealth v. Stitzel, 179 Pa.Superior Ct. 80, 115 A.2d 805 (1955), Judge Woodside, speaking for the Superior Court of Pennsylvania, said:

A sentencing judge, and others dealing with the sentence, cannot with justice to the boy or the public ignore completely the boy’s conduct during the time he was within the age of the juvenile court law.

Id., 179 Pa.Super. at 83, 115 A.2d at 806.

Again in Commonwealth ex rel. Hendrickson v. Myers, 182 Pa.Superior Ct. 169, 126 A.2d 485 (1956), we said:

At the time of sentence relator’s juvenile court record was brought to the attention of Judge Boyer, the sentencing judge. In this there was no error. He had been brought into the juvenile court on one serious charge. He was found delinquent because of a burglary committed by him in 1942 when he was more than 17 years old, and was placed on probation. Section 19 of the Act of June 2, 1933, P.L. 1433, 11 P.S. § 261 provides: ‘The disposition of a child or any evidence given in a juvenile court shall not be admissible as evidence against the child in any case or proceeding in any other court.’ The juvenile court in this instance was the Court of Quarter Sessions of Bucks County. 11 P.S. § 243. The above prohibition of the Act had no application here. The judge was entitled to all of the material facts to inform him as to what kind of an offender he was dealing with to assist him in determining the appropriate penalty. Commonwealth v. Petrillo, 340 Pa. 33, 47, 16 A.2d 50. Prior to sentence relator admitted the larceny of still another automobile in 1945 in Washington, D.C. and his apprehension in Connecticut, although he stated that the charges against him in that instance were ‘dropped.’ Cf. Com. ex rel. Reichelderfer v. Burke, 176 Pa.Super. 215, 218, 107 A.2d 578. In Com. ex rel. Czarnecki v. Stitzel, 179 Pa.Super. 80, 82, 83, 115 A.2d 805, 806, Judge Woodside’s statement is almost axiomatic to this effect: ‘A sentencing judge * * * cannot with justice to * * * the public ignore completely the boy’s conduct during the time he was within the age of the juvenile court law.’

Id., 182 Pa.Super. at 173-74, 126 A.2d at 487.

More recently our court speaking through Judge Cercone (now President Judge) reaffirmed our holding that the prior juvenile record of a defendant may be considered by the sentencing judge when imposing sentence. Commonwealth v. Riviera, 254 Pa.Superior Ct. 196, 385 A.2d 976 (1978).

Rule 1403 of the Pennsylvania Rules of Criminal Procedure, entitled “Aids in Imposing Sentence” provides that the sentencing judge may, in his discretion, order a pre-sentence investigation report in any case, which report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the court in determining sentence.

Indeed, the Sentencing Code provides in § 9722 the following grounds which shall be accorded weight by the court in determining the appropriate sentence:

The following grounds, while not controlling the discretion of the court shall be accorded weight in favor of an order of probation:
(1) The criminal conduct of the defendant neither caused nor threatened serious harm.
(2) The defendant did not contemplate that his conduct would cause or threaten serious harm.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
(5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
(8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to respond affirmatively to probationary treatment.
(11) The confinement of the defendant would entail excessive hardship to him or his dependents.
(12) Such other grounds as indicate the desirability of probation.

(Emphasis added).

And again the Sentencing Code provides in § 9732, relating to the contents of presentence report that:

The presentence report shall include a summary of the circumstances attending the commission of the crime, the history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation and personal habits of the defendant, and any other matters that the person preparing the report deems relevant or that the court directs be included.

(Emphasis added).

We hold that the sentencing judge in the instant matter had not only the right but a duty to review the record of delinquency during the sentencing process, and that such review did not violate due process.

Judgment of sentence affirmed.

BECK, J., concurs in the result.

      . Pa.R.Crim.P. 1410 provides that a motion to modify sentence shall be filed within ten days after imposition of sentence.

      . Despite the filing of a motion to modify sentence under Pa.R. Crim.P. 1410, an appeal must still be taken from the judgment of sentence. Commonwealth v. Lee, 278 Pa.Superior Ct. 609, 420 A.2d 708 (1980); Pa.R.Crim.P. 1410, Comment.

      . At the sentencing hearing held September 19, 1980, before Judge Ross, Diane Quinlan, Esquire, from the office of the public defender, appeared on behalf of and along with Donald Johnson. She had been trial counsel as well. The sentencing transcript included the following:
      MS. QUINLAN: Your Honor, Mr. Johnson has one prior offense, that was simple assault. He was put on probation for that offense. While he was on probation, he did report regularly.
      THE COURT: He spent some time in Greensburg.

        MS. QUINLAN: I’m sorry. After three months, he was put on parole and he did report to his Parole Officer regularly. He had no prior convictions except for the simple assault. Now, as far as the motor vehicle fines, the pre-sentence report discusses, he had a hearing on that and was fined on April 8; he was arrested on this charge on April 28th. So, in terms of payment of those fines, it wasn’t possible for Mr. Johnson to make a payment bec[au]se he was in jail.
      Mr. Johnson tells me that he has family here in Pittsburgh and that if he were to be released, he would live with his family and attempt to get a job. His old job was that of a laborer for a contractor in Shadyside. If he were to get that employment, then he could make an attempt at paying the fines that were imposed on him. In light of those facts and other than this simple assault—
      THE COURT: Retail theft and simple assault. That’s how he got into this assault, while he was stealing out at the A & P over at Allegheny Center Mall. He has seven appearances as a juvenile before he became an adult. What he has done is continued where he left off there.
      Does the District Attorney have anything?
      MR. RUDDY: I have no recommendations or comments.
      THE COURT: It appearing to this Court that this individual has a long record of involvement with the law and that while he was on parole from another case he violated the criminal laws by committing this offense; that while a juvenile he committed seven violations of the law—so, therefore, at Complaint No. CC 8003141A, wherein the actor was found guilty by a jury of burglary, receiving stolen property and possession of instrucments [sic] of crime, on the first count of the indictment, it is the sentence of the Court: And now, this 19th day of September, 1980, the Defendant appearing in open Court with counsel, is sentenced to undergo an imprisonment of not less than one and one half years nor more than three years and stand committed and be sent to the Western Correctional, Diagnostic and Classification Center of Pennsylvania. The date of last commitment being as of when he was incarcerated on these charges.

        Sentencing Record at 2-4.

      . 42 Pa.C.S. § 9701 et seq.


author: BECK, Judge:

text:
    437 A.2d 1250
    Ruth E. SMITH, v. Lyvonne LEFLORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1981.
    Filed Dec. 11, 1981.

      Archie V. Diveglia, Harrisburg, for appellant.
    Stewart L. Cohen, Harrisburg, for appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   BECK, Judge:

This is an appeal from the denial of a motion for a new trial in a paternity suit. In the first of two civil trials (this one without a jury), appellant was found not to be the father of appellee’s child. Subsequently, a Motion for a New Trial by appellee was granted. In a jury trial, appellant was found to be the father of that child.

Appellant raises four assignments of error by the lower court. Two of those contentions have merit:

(1) Appellant was prejudiced when counsel for appellee inquired during cross-examination as to a prior arrest.
(2) Appellant was prejudiced when an offer of compromise containing no explicit admission was admitted into evidence.

It is well-settled in Pennsylvania criminal cases that evidence of prior convictions may only be introduced in limited circumstances. That is, the commission of one crime will not be construed as evidence of the commission of another. Commonwealth v. Spruill, 480 Pa. 601, 605 n.2, 391 A.2d 1048 at 1050 n.2 (1978); See Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693, 695 (1978).

This court in Commonwealth v. Smith, 240 Pa. Super. 212, 361 A.2d 862, 865 (1976), rev’d on other grounds, 477 Pa. 424, 383 A.2d 1280 (1978), discussed those convictions which may be used to impeach a witness’ credibility. When any witness takes the stand, his or her credibility may be impeached by testimony of prior felonies or misdemeanors constituting crimen falsi (involving moral turpitude and reflecting dishonesty). It must be established, though, that the witness was convicted and sentenced. See U. S. v. Heckman, 479 F.2d. 726, 730 (3d Cir.1973).

In Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591, 593 (1973), the Supreme Court explained this proscription of impeachment by reference to a prior arrest:

We have long held that prior bad acts not resulting in a conviction are not admissible to impeach a witness’ credibility. Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). See also, United States v. Conder, 423 F.2d 904, 911-912 (6th Cir. 1970). We expressed the rationale for such a rule in Ross:
“As a general rule, however, there must be a conviction of the felony or misdemeanor before such evidence is relevant, because there is a vast difference between a conviction and a mere accusation. An inquiry as to a mere arrest or indictment is not permitted because an arrest or an indictment does not establish guilt, and the reception of such evidence would merely constitute the reception of somebody’s hearsay assertion of the witness’ guilt. 3 Wigmore, Evidence § 980(a)(3d ed. 1940).” 434 Pa. at 171, 252 A.2d at 662.

Although the cross-examination in the instant case as to a prior arrest occurred in the context of a civil proceeding, the same concerns for a fair trial attach as in criminal matters. Here the primary question for the jury was one of credibility and the prejudical impact of such evidence is apparent. In Commonwealth v. Strickland Transportation Corp., 30 Pa.Comm. 463, 467 n.4, 373 A.2d 1188 at 1190 n.4 (1977), the Commonwealth Court confronted this question in its civil context in an appeal from an order of the Workman’s Compensation Appeal Board which affirmed the referee’s disability award to a claimant. Among the evidence offered was an uncertified copy of arrests and dispositions of the Philadelphia Police Department. The court reasoned:

Even if the information contained in the extract were sufficiently authenticated, it would still not be admissible for impeachment purposes, since a witness in Pennsylvania may be impeached only by showing a prior conviction and then only if the crime involved dishonesty or false statement which is not the case here. See Commonwealth v. Futch, 469 Pa. 422, 366 A.2d 246 (1976); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).

The proposition that evidence of arrest without conviction is not admissible in a civil case is supported most clearly in Wentworth v. State, 33 Md.App. 242, 364 A.2d 81, 84 (1976), and we find it to be persuasive authority:

We reiterate what we said in Arbaugh v. State, supra [27 Md.App. 662, 341 A.2d 812], that evidence of arrest is not admissible in a civil case. Bonaparte v. Thayer, 95 Md. 548, 559, 52 A. 496, 499 (1902), followed in Nelson v. Seiler, 154 Md. 63, 68, 139 A. 564, 566 (1927), makes unmistakable that, “ ... the Courts of this State have always recognized the distinction pointed out in 1 Greenleaf on Ev. (16 ed.) sec. 461, between actual misconduct, itself, and the charge of misconduct; and have excluded the latter.

While in the instant case there was a cautionary instruction by the trial judge, the prejudicial damage had already been done. For this mode of impeachment to be classified as harmless error, we must be convinced beyond a reasonable doubt that the error could not have contributed to the verdict. See Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 164 (1976). We are not so persuaded.

The next valid ground for granting a new trial is the admission of a compromise offer containing no explicit admission on the part of appellant. The general rule in this area is that offers to compromise are not admissible. This rule is premised upon a policy of encouraging settlement without litigation. Also, it is clear that offers to compromise are not ipso facto admissions of liability. See Commonwealth v. Terry, 275 Pa.Super. 184, 186, 418 A.2d 673, 675 (1980).

Paternity cases present particularly good reasons for excluding evidence of offers to compromise. Individuals involved in those proceedings are often eager to compromise to avoid notoriety and embarrassment. There is a strong societal interest in encouraging discussion and out-of-court settlement in these matters.

Accordingly the order of the lower court is reversed and new trial is granted.

PRICE, J., did not participate in the consideration or decision of this case.

      . Cf. Rule 609(a) of the Federal Rules of Evidence: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.


author: JOHNSON, Judge:

text:
    437 A.2d 1252
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert A. DiSANTIS.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1981.
    Filed Dec. 11, 1981.

      Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellant. ,

      Alan Lourie, Assistant Public Defender, West Chester, for appellee.
    Before SPAETH, JOHNSON and WIEAND, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from the order of July 21, 1980, which both granted Appellee’s motion in arrest of judgment and dismissed the charges and discharged Appellee. The basis for the discharge was the violation of Appellee’s Rule 1100 rights. For the following reasons, we reverse.

The complaint against Appellee was filed on July 21,1976; so the run date was January 17, 1977. After a preliminary hearing on August 8, 1976, Appellee was held for trial. When the case was called for trial on December 6, 1976, Appellee, after a complete colloquy, entered a guilty plea that was accepted by the court. The judge deferred sentencing pending a presentence investigation.

When Appellee appeared for sentencing on April 14, 1977, he denied one count to which he had previously pled guilty. The judge, therefore, refused to impose sentence and continued the proceedings. On July 25, 1977, the Commonwealth filed a petition for an extension under Rule 1100(c). On August 24, 1977, Appellee withdrew his guilty pleas and waived his Rule 1100 rights subsequent to August 24, 1977. On August 31,1977, after a hearing on the Commonwealth’s Rule 1100(c) petition, the court extended the run date to December 30, 1977.

On December 8, 1977, Appellee filed an Application to Dismiss; and the court conducted a hearing on said application prior to the commencement of the nonjury trial. The court dismissed Appellee’s application and proceeded with the nonjury trial. Appellee was found guilty of Simple Assault, Recklessly Endangering Another Person, two counts of Arson and Related Offenses, and Driving under Influence of Alcohol or Controlled Substance. On October 21, 1980, the court granted Appellee’s motion in arrest of judgment and discharged Appellee.

In its appeal from the aforesaid order, the Commonwealth raises two issues. First, does trial commence under Rule 1100 when the defendant enters a guilty plea and the court, after conducting a colloquy, accepts the plea and orders a presentence investigation? Second, does the Commonwealth have 120 days to bring the defendant to trial where the lower court grants the defendant’s motion to withdraw his guilty pleas which had previously been accepted by the court?

The first issue is answered by Commonwealth v. Juliano, 282 Pa.Super.Ct. 226, 422 A.2d 1088 (1980), petition for allowance of appeal denied (1981). In Juliano, the defendant filed a PCHA Petition, alleging that his Rule 1100 rights had been violated. As in the instant case, the lower court in Juliano accepted the defendant’s guilty plea but deferred sentencing pending a presentence report. The Superior Court stated that “trial commenced . . . when Appellant entered a guilty plea . . ..” Id., 282 Pa.Super. at 229, 422 A.2d at 1089.

In Commonwealth v. Cox, 276 Pa.Super.Ct. 29, 419 A.2d 78 (1980), the Superior Court held that trial did not commence for Rule 1100 purposes when the trial judge merely took the guilty plea under advisement and ordered a presentencing report. The court presented two reasons for this holding:

First, we believe that the trial court’s actions did not represent the “substantial” commitment of the court’s time and resources contemplated by Rule 1100 and our interpretations thereof. See Commonwealth v. Griffin, supra [257 Pa.Super. 153, 390 A.2d 758]. Second, we hold that the trial court’s acts of August 1, 1978, did not lead directly to a determination of appellant’s guilt, i.e., under no stretch of the imagination could one conclude that the six month period of inaction between appellee’s tendering the guilty plea and his filing of the petition to dismiss was indicative of a direct progression into the guilt-determining process. [Footnote omitted.]

Id., 276 Pa.Super. at 35, 419 A.2d at 81-82.

The trial court in the instant case analogized Appellee’s situation to that of Commonwealth v. Rodgers, 254 Pa.Super.Ct. 288, 385 A.2d 1023 (1978), as its rationale for holding that Appellee’s trial had not commenced within 180 days. In Rodgers the court initially rejected the guilty plea, while in the instant case, the court initially accepted Appellee’s guilty plea. Although the trial court did not consider this distinction to be material, we believe, in light of Juliano and Cox, that the court’s disposition of a guilty plea determines whether or not trial has commenced under Rule 1100.

Thus, in light of the foregoing dictum in Commonwealth v. Juliano, we hold that, when the court has accepted a guilty plea, even though sentencing is deferred, trial has commenced for purposes of Rule 1100. See Commonwealth v. Bytheway, 290 Pa.Super.Ct. 148 at 154, 434 A.2d 173 at 176-177 (1981). In the instant case, as in Juliano, trial commenced when Appellee entered a guilty plea that was accepted by the trial court. Since trial commenced approximately forty-two days (42) days before the run date, Appellee’s Rule 1100 rights were not violated during the initial proceeding.

In considering Appellant’s second issue, we must decide whether or not Appellee’s Rule 1100 rights were violated because the Commonwealth, after the court subsequently allowed Appellee to withdraw his plea, neither proceeded to trial within the 180-day period nor obtained an 1100(c) continuance until after the initial run date.

According to the decision in Juliano, Rule 1100 is not applicable to the period of time from the acceptance of Appellee’s guilty plea on December 6, 1976, to Appellee’s appearance for sentencing on April 14, 1977. The court in Juliano stated:

The period between the entry of the plea and the September sentencing date cannot be measured in terms of Rule 1100, since it can only be viewed as time needed by the Court to prepare for appropriate sentencing. It was after the trial, and there is no logical basis for declaring that period to be a continuation of the period of time mandated by our rules to afford the Appellant a speedy trial.

282 Pa.Super.Ct. at 229, 422 A.2d at 1089-1090.

When Appellee appeared for sentencing and denied one count on April 14, 1977, the court continued the proceedings. Appellee’s guilty pleas were not actually withdrawn until August 24, 1977. The continuation of the proceedings for Appellee and his attorney to decide whether or not to alter the guilty plea (N.T. 4/14/77, 22) does not constitute a basis to invoke Rule 1100 because the continuance occurred after trial had commenced. See Commonwealth v. Juliano, 282 Pa.Super.Ct. at 229, 422 A.2d at 1089-1090.

The lower court’s opinion states that “the Commonwealth was aware as early as May 5, 1977, that the plea had been aborted.” Slip op. at 4. Even if the plea had been aborted on April 14, 1977, in light of the holding in Commonwealth v. Bytheway, 290 Pa.Super.Ct. 148, 434 A.2d 173 (1981), the Commonwealth would have had 120 additional days within which to commence trial. In Bytheway, the Superior Court held:

[F]or purposes of Pennsylvania’s speedy trial rule, there is no substantive basis for distinguishing a trial which follows the withdrawal of a guilty plea from one which follows a mistrial or successful post-verdict motions or appeal.

Id., 290 Pa.Super. at 153, 434 A.2d at 176. The court proceeded to explain that, in such a case, the Commonwealth would have 120 days within which to commence a new trial:

[W]ere we to conclude that the 120 day period prescribed by Rule 1100(e) is not applicable in cases involving withdrawn guilty pleas, the original 180 day period mandated by Rule 1100(a)(2) would recommence on the date the guilty plea is withdrawn. The Commonwealth would thus be forced to commence two trials within 180 days of the date the criminal complaint was filed. Such a result is neither intended nor required by Rule 1100.

Id., 290 Pa.Super. at 154, 434 A.2d at 176. Since the Commonwealth, in the instant case, filed a Rule 1100(c) Petition for Extension 102 days after the proceeding on April 14, 1977, even if the lower court were correct that the Commonwealth had notice that the guilty plea had been aborted on May 5, 1977, the Commonwealth’s Rule 1100(c) petition was timely filed. The action of the lower court in granting the petition has not been challenged, and we conclude that it was properly granted. Thus, Appellee’s rights under Rule 1100 were not violated.

For the foregoing reasons, we reverse the order of July 21, 1980, and remand for proceedings consistent with this opinion.

WIEAND, J., concurs in the result.

      . Pa.R.Crim.P., Rule 1100(c), 42 Pa.C.S.A., states:
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . 18 Pa.C.S.A. § 2701.

      . Id., § 2705.

      . Id., § 3301(a)-Endangering Persons and id., § 3301(b)-Endangering Property.

      . 75 Pa.C.S.A. § 3731. Formerly, 75 Pa.C.S.A. § 1037.

      . We have reviewed the notes of testimony of the hearing and are convinced that the requirement that the Commonwealth make a complete record has been fully met.


text:
    437 A.2d 1255
    Salvatore NOTO, v. Jeanette NOTO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1981.
    Filed Dec. 11, 1981.

      Eric I. Lerner, Philadelphia, for appellant.
    Paul R. Beckert, Fairless Hills, for appellee.
    Before CERCONE, President Judge, and HESTER and JOHNSON, JJ.
   JOHNSON, Judge:

Salvatore Noto, the former husband and plaintiff in this action, filed suit demanding compensation for various types of jointly owned personal and real property which the defendant, his former wife Jeanette, had allegedly kept for herself. Jeanette filed an answer and new matter, raising the issues of res judicata and the statute of limitations. Salvatore’s reply to the new matter merely denied Jeanette’s averments. Jeanette then filed a motion for judgment on the pleadings which was denied by the trial judge. The judge treated the motion as a motion for summary judgment and based his denial on the questions of fact raised by Jeanette’s new matter and by Salvatore’s reply.

Jeanette brought this appeal from the denial of her motion for judgment on the pleadings. Because the decision below was an interlocutory order, the appeal is quashed.

Appellant, Jeanette, asserts that this court has jurisdiction over her appeal under the Act of April 18, 1874, P.L. 64, § 1, 12 P.S. § 1097. She is mistaken for two reasons. Firstly, that statute gave plaintiffs, not defendants, a right of appeal from a denial of a judgment on the pleadings in assumpsit actions. Secondly, it has been repealed and is superseded by the Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, as amended, 42 Pa.C.S.A. § 5105. This new statute provides that appeal may be taken from such interlocutory orders as are specified by law. The Pennsylvania Rule of Appellate Procedure 311, which implements 42 Pa.C.S.A. § 5105(c), provides for interlocutory appeals as of right. Appeals from judgments on the pleadings are not included in this rule.

Pa.R.App.P. 1311 describes the procedure for interlocutory appeals by permission. In the case before us not only is there no § 702(b) statement in the order denying the judgment on the pleadings, but the trial judge in his opinion specifically declined to comment on the appealability of the order.

This court has jurisdiction over all appeals from final orders of the courts of common pleas. 42 Pa.C.S.A. § 742 (Purdon 1981). A final order is one which ends the litigation, or disposes of the case. Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 482 Pa. 615, 394 A.2d 491 (1978); Tunstall v. Penn Federal Savings and Loan Association, 287 Pa.Super.Ct. 511, 430 A.2d 1007 (1981); Giannini v. Foy, 279 Pa.Super.Ct. 553, 421 A.2d 338 (1980). An order is interlocutory and not final unless it puts the litigant out of court. Napet, Inc. v. Benkart Co., 288 Pa.Super.Ct. 187, 431 A.2d 351 (1981); Giannini v. Foy, supra. See also Hughes v. Pron, 286 Pa.Super.Ct. 419, 429 A.2d 9 (1981) (motion for summary judgment is interlocutory and not appealable); Philadelphia National Bank v. Lutherland, Inc., 286 Pa.Super.Ct. 48, 428 A.2d 232 (1981).

By denying a motion for judgment on the pleadings the trial judge was concluding that there were issues of fact which needed to be resolved. There has been ho final order yet in this case. This appeal must therefore be quashed.

      . Pa.R.Civ.P. 1034.

      . Pa.R.Civ.P. 1035.

      . Noto v. Noto, No. 80-3734-05-5, slip op. at 3. (C.P., Bucks County, September 16, 1980).

      . See Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969); Vendetti v. Schuster, 418 Pa. 68, 208 A.2d 864 (1965); Swayne v. Lovett, 21 Pa.Commw.Ct. 462, 346 A.2d 857 (1975).

      . Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[633], effective June 27, 1980.

      . 42 Pa.C.S.A. § 5105 (Purdon 1981) provides in relevant part:
      (c) Interlocutory appeals.—There shall be a right of appeal from such interlocutory orders of tribunals and other government units as may be specified by law. The governing authority shall be responsible for a continuous review of the operation of section 702(b) (relating to interlocutory appeals by permission) and shall from time to time establish by general rule rights to appeal from such classes of interlocutory orders, if any, from which appeals are regularly permitted pursuant to section 702(b).
      42 Pa.C.S.A. § 702(b) provides:
      (b) Interlocutory appeals by permission.—When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.

      . Pa.R.App.P. 1311 provides in relevant part:
      (a) General rule. An appeal may be taken by permission under 42 Pa.C.S. § 702(b) (interlocutory appeals by permission) from any interlocutory order of an administrative agency or lower court. See Rule 312 (Interlocutory appeals by permission).
      (b) Petition for permission to appeal. Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa.C.S. § 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after entry of such order ....

        42 Pa.C.S.A. § 702(b) is quoted at note 6 supra.

      . Noto v. Noto, No. 80-3734-05-5, slip op. at 1 (C.P., Bucks County, September 16, 1980).


text:
    437 A.2d 1257
    Margaret K. KRASIK, Appellant, v. DUQUESNE UNIVERSITY OF THE HOLY GHOST, A corporation, Henry J. McAnulty, and Ronald R. Davenport.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Dec. 11, 1981.

      Margaret K. Krasik, Pittsburgh, appellant, in pro per.
    Frederick N. Egler, Pittsburgh, for Duquesne, appellee.
    Daniel H. Shapira, Pittsburgh, for Davenport, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

The essential facts of this case were stipulated by the parties in a document filed with the lower court on August 9, 1979. According to the Stipulation, appellant Margaret K. Krasik entered into a one-year contract of employment with Duquesne University pursuant to a letter dated March 28, 1977. The original letter was signed by the Dean of the Law School, Ronald R. Davenport, one of the appellees herein. Appellant’s employment was renewed the following year pursuant to a letter dated June 1, 1978. The first letter specified:

In accordance with the authority delegated by the Board of Directors and the President of Duquesne University, the following are the terms of your non-tenured Faculty Agreement. Effective July 1,1977, your period of service in the Law School will be paid over a twelve month period, on a bi-weekly basis, from July through June. Your rank will be Assistant Professor of Law and you will hold the position of Librarian in the School of Law. Your salary will be $21,000 for your period of service.
The Standards of the American Bar Association for Legal Education and the Articles of Association of the Association of American Law Schools, applicable to law schools and law school faculties, shall be in effect and are incorporated by reference. Provisions from the current Duquesne University Faculty Handbook shall also be in effect and are incorporated by reference to the extent that such provisions are not in conflict with the previously mentioned Standards and Articles or this Faculty Agreement.
The term of this Agreement is for one year.

The second letter was identical, except that appellant’s salary was raised to $22,500. Appellant’s initial employment was approved by the assembled body of the Duquesne University law faculty. The stipulated facts do not indicate whether or not the faculty voted on appellant’s employment for the second year.

By letter dated December 15, 1978, Dean Davenport delivered to appellant written notice that her contract would not be renewed, and that her employment as head law librarian would terminate on June 30, 1979. The letter stated:

Dear Mrs. Krasik:
Over the past year and a half, I have had the occasion to review your work as Head Law Librarian with both you personally and with our colleagues. When you were hired, I was very optimistic that you could provide the professional leadership sorely needed in our Library. Unfortunately, that has not turned out to be the case. You are well aware of the many problems of a personal nature that you have had with various members of the Law School staff. In general, however, I have been disappointed in your lack of imagination and creativity as it reflects on the Library. In times past you have summarily dismissed contribution opportunities to our Library, thereby giving the impression of insensitivity to the possible donor. I have been particularly disappointed with your extreme sensitivity in your relationships with other members of the Law School community. Your overall attitude has severely hampered the growth and development of our Law Library.
Consequently, I have no choice but to give you official notice this date that your contract will not be renewed. You will, therefore, terminate your services as Head Law Librarian effective June 30, 1979.
Yours very truly,
Ronald R. Davenport
Dean

The Law School Faculty at no time specifically authorized the execution and delivery of the letter dated December 15, 1978. At a meeting of the Faculty held on January 12, 1979, with appellant and Dean Davenport present, the Dean’s action was discussed and the following motion carried:

MOVED, since all changes in the status of faculty members, including hiring, retention, termination, promotion and granting of tenure, are within the jurisdiction of the faculty, the Dean’s action by his letter of December 15, 1978, in which he notified Professor Krasik of the non-renewal of her contract and termination of her services is null and void.

On March 5, 1979, appellant filed a grievance with the Duquesne University Grievance Committee. On April 5, 1979, she filed separate grievances with the American Bar Association (ABA) Accreditation Committee and with the Association of American Law Schools (AALS). By letter dated May 22, 1979, addressed to Dean Davenport and to appellant, the American Bar Association advised that it was not proceeding with the complaint filed with it because it had been advised that the matter was being handled through Duquesne University’s procedure for individual grievances. On May 24, 1979, the Grievance Committee submitted to Father McAnulty, President of Duquesne University, a report of an ad hoc committee recommending that appellant’s employment be extended until action could be taken by the ABA and the AALS. (Under the grievance procedure, the committee’s recommendation is not effective until approved by the University President). By letter of June 13, 1979, a representative of the AALS advised appellant that the AALS would not assume jurisdiction in her case since the Association had been informed by appellant that she was preparing to commence litigation against the University. By letter dated June 28, 1978, addressed to the chairman of the University Grievance Committee, with copies to appellant and Dean Davenport, Father McAnulty rejected the grievance, concluding that Dean Davenport’s termination of appellant’s employment was within his administrative authority. The letter also stated that appellant’s employment would terminate on June 30, 1979.

Appellant filed a complaint in equity on June 25, 1979, seeking to enjoin Duquesne University from terminating her employment with the University as assistant professor of law and law librarian. On July 16, 1979, appellees filed preliminary objections requesting dismissal of the suit. Appellant responded with preliminary objections to the preliminary objections. On August 8, 1979, the lower court granted appellees’ preliminary objections and dismissed the complaint, noting that the contract of employment, by its own terms, expired on June 30, 1979, and that appellant therefore had no contract or property right which might be protected by the court. Appeal was then taken to our court from the Order dismissing the complaint.

Appellant argues that the lower court erred in finding that her contract of employment had expired by its own terms and that she therefore had no right to continued employment. Appellant argues that her employment contract incorporated the standards of the AALS and the ABA, and that these standards required faculty approval before her employment could terminate. We find no merit to this argument.

Both employment letters incorporate by reference the ABA Standards and the AALS “Articles of Association” (AALS Bylaws). Section 6-1 of the AALS Bylaws provides:

To the end that high standards of legal education be fostered, each member school shall maintain:
4. A faculty of high competence and suitable size, vested with primary responsibility for determining institutional policies.
APPROVED ASSOCIATION POLICY
As to personnel matters, experience in the law school world has shown that a competent faculty is best assured by the faculty’s exercising a substantial degree of control over decanal and faculty appointments or changes in faculty status (such as .. . renewal or termination of term appointments). The capacity to make the pertinent decisions is maintained by procedures under which:
i. The faculty . . . assembled in a meeting of which suitable notice has been given, makes the initial choice with respect to faculty appointments or changes in faculty status, for submission through any intermediate approving authorities to the final appointing authority;
iii. Except in rare cases and for compelling reasons, no decanal or faculty appointment or change in faculty status will be made over the expressed opposition of the faculty
8. A library adequate for the curriculum and for research.
APPROVED ASSOCIATION POLICY
(c) Librarian and staff. A member school should have a full-time librarian and staff .... The librarian should be a full, participating member of the faculty. (Emphasis added).

We see nothing in these Bylaws which confers upon appellant any right to continued employment. These portions of the Bylaws simply outline the means by which a member school might assure itself of having a competent faculty. Should the AALS determine that Duquesne failed to comply with AALS Bylaws, and that such failure resulted in a faculty that was not competent, it might wish to take some action against the University. We find no merit, however, to appellant’s argument that these Bylaws required that faculty approval be obtained before appellant’s employment could terminate.

Similarly, we find nothing in Sections 205 or 604 of the ABA Standards which would require faculty action before appellant’s employment could terminate. Section 205 of the ABA Standards states: “Within those general policies [which the law school’s Governing Board may establish], the dean and the faculty of the. law school shall have the responsibility for formulating and administering the program of the school, including such matters as faculty selection, retention, promotion and tenure . . . . ” Certainly there is nothing in this section which requires the result which appellant would have us reach. Section 604 states: “The selection and retention of the law librarian shall be by the dean and faculty of the law school.” Although this section obviously delegates the responsibility of selecting a law librarian to both the dean and faculty, we will not interpret this section to mean that appellant’s contract cannot expire by its own terms without some action by both the dean and the faculty.

Reading the employment contract as a whole, N. D. Ivey Co. v. Franklin Associates, Inc., 370 Pa. 225, 231, 87 A.2d 236 (1952), including the ABA standards and the AALS Bylaws which were incorporated by reference, it seems clear that appellant was employed pursuant to a one-year contract which expired on a specified date. The ABA Standards and AALS Bylaws do not convert the agreement into a contract for permanent employment, nor do the Standards or Bylaws require faculty review prior to the expiration of the term of the agreement. Had the letter of June 1, 1978 not specifically stated that the term of the agreement was to be for one year, or had the dean attempted to fire appellant prior to the expiration of the term, appellant would have had a stronger argument. As matters stand, we will not interpret the vague advisory language of the Standards and Bylaws to effect a result contrary to a clause in the agreement which clearly states that the term shall be for one year.

Appellant also argues that the lower court erred in refusing to strike appellees’ preliminary objections, since these preliminary objections purportedly “improperly attempted to serve the purpose of an answer, and raised matters not of record and attempted to vary the contents of the complaint and Krasik’s contract.” Appellant’s arguments concerning the purported attempt by appellees to “vary the contents” of the complaint and contract are, for the most part, trivial. Although appellant is correct in stating that appellees’ preliminary objections contain improper matter, our review of the lower court’s opinion convinces us that the lower court’s ruling was based upon matter properly before it. The lower court found that appellant’s employment contract, by its own terms, expired on June 30, 1979, and that appellant had no contract or property right which was enforceable by the court. As previously noted, we are in agreement with this decision.

Order affirmed.

      . The Stipulation of Facts and Documents states that the letter was executed on March 27, 1977; however, the letter is actually dated March 28, 1977.

      . On June 13, 1979, appellant also filed a charge of improper sex discrimination with the Equal Employment Opportunity Commission.

      . The employment letters incorporate the “Articles of Association” of the AALS; the 1978 copy of the Association Information booklet included with the reproduced record indicates that the AALS has “Articles of Incorporation” and “Bylaws”, but the booklet does not mention “Articles of Association”. It is not entirely clear then what was being incorporated by the employment letters. Since appellant quoted from the Bylaws in her complaint and included a copy of the Bylaws with the reproduced record, and since appellees attached to their preliminary objections a copy of these same Bylaws, we assume that the parties are in agreement that “Articles of Association” in the employment letters refers to these Bylaws.

      . The complaint quotes from the February 1978 pamphlet titled “Association Information”, and appellant has included with the'reproduced record a copy of the Bylaws from the 1978 pamphlet. Appellees attached to their preliminary objections a copy of the Bylaws, also from the 1978 pamphlet. Although the official record contains an April 1979 copy of the “Association Information” with a slightly different version of the Bylaws, the 1978 Bylaws were evidently in effect at the time the dean notified appellant that her contract would not be renewed, and we therefore apply the 1978 Bylaws.

      . Appellant does not appear to be claiming a right to continued employment based on anything other than her employment contract. See Travis v. Teter, 370 Pa. 326, 87 A.2d 177 (1952), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), on lack of property interest in absence of statute or contract. See also Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1970), involving a de facto tenure system.


text:
    437 A.2d 1262
    Inez DEL QUADRO, Appellant, v. CITY OF PHILADELPHIA, and Oscar Yoblick, Reba Spivak Yoblick and Manuel Katz.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1981.
    Filed Dec. 11, 1981.

      Chester T. Cyzio, Philadelphia, for appellant.
    Judith N. Dean, Deputy City Solicitor, Philadelphia, for City of Philadelphia, appellee.
    Richard S. March, Philadelphia, for Yoblick, etc., appellees.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   PER CURIAM:

Appellant, Inez Del Quadro, has filed this appeal from an order of the lower court entering judgment on the pleadings, Pa.R.C.P. 1034, in favor of appellee, City of Philadelphia; the judgment having been entered for want of a sufficient reply to new matter. We vacate the judgment and remand.

Appellant brought this action in trespass to recover damages for personal injuries which she suffered as a result of a fall on a public street in Philadelphia, Pennsylvania. Although the cause of action arose on October 19, 1970, a writ of summons was not filed until November 13, 1972. After the complaint was filed, appellee filed an answer and new matter averring, inter alia, that appellant’s claim was barred by the statute of limitations. In her reply to appellee’s new matter, appellant denied that her claim was barred and further averred that

. . . [she] was lulled into inaction directly by representatives of the defendant, especially since settlement negotiations were pending and a settlement was imminent immediately prior to and at time of the institution of this action.

As noted, the lower court entered judgment on the pleadings on the basis that appellant had failed to plead sufficient facts to estop appellee from asserting the statute of limitations; the court having determined that certain statements made in appellant’s memorandum of law were insufficient to support appellant’s claim of estoppel. (Record at 11-12).

It is fundamental that a judgment on the pleadings should not be entered where there are unknown or disputed issues of fact. North Star Coal Co. v. Waverly Oil Works Co., 447 Pa. 241, 288 A.2d 768 (1972). The court must treat the motion as if it were a preliminary objection in the nature of a demurrer. Trost v. Clover, 234 Pa.Super. 255, 338 A.2d 630 (1975). In conducting this inquiry, the court should confine its consideration to the pleadings and relevant documents. SN, Inc. v. Long, 208 Pa.Super. 38, 220 A.2d 357 (1966). Since a motion for judgment on the pleadings is not a motion for summary judgment, no affidavit or depositions may be considered, nor is any matter before the court except the pleadings. Bogojavlensky v. Logan, 181 Pa.Super. 312, 124 A.2d 412 (1956). It is clear that the briefs of the parties are not pleadings. See Pa.R. C.P. 1017.

Although appellant’s reply leaves much to be desired, in our view, it was not so clearly insufficient as to warrant the entry of judgment on the pleadings. Cf. Busby v. Harrisburg Pipe & Pipe Bending Co., 312 Pa. 394, 167 A. 313 (1933) (judgment for want of sufficient reply affirmed). Here, the fact that the lower court felt compelled to look outside the pleadings supports our conclusion. Where there is any uncertainty or doubt, it should not be assumed that a party cannot plead with more specificity. The court should consider the advisability of directing a party to amend. Medusa Portland Cement Co. v. Marion Coal & Supply Co., 204 Pa.Super. 5, 201 A.2d 285 (1964). Moreover, in close cases like this it would seem that the preferable approach is to await the filing of affidavits and depositions and then to consider the issue on a motion for summary judgment.

In view of the foregoing, it was error to enter judgment on the pleadings in favor of the City of Philadelphia and that judgment is hereby vacated and set aside and the case remanded.

      . The additional defendants, Oscar Yoblick, Reba Spivak Yoblick, and Manuel Katz, did not participate in this appeal.

      . In accordance with the law of this Commonwealth, appellant had two (2) years within which to bring her action to recover damages for personal injuries. Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, repealed by 42 Pa.C.S.A. § 20002(a)[807], effective June 27, 1978, now 42 Pa.C.S.A. § 5524(2), effective June 27, 1978.


text:
    437 A.2d 1264
    Brenda HASCHAK, Administratrix of the Estate of Steven Haschak v. ESCAPADE INC., t/a Mirage Cocktail Lounge and Brian Robert Shannon and Frederick C. Barr and Anne Marie Barr. Appeal of ESCAPADE INC., t/a Mirage Cocktail Lounge. Anthony CREAZZO v. BARR’S PLACE, Frederick C. Barr and Anne Marie Barr, his wife, Russell Trumbauer and Mary Louise Trumbauer and Escapade Inc., t/a Mirage Cocktail Lounge and Brian Robert Shannon. Appeal of Russell TRUMBAUER and Mary Louise Trumbauer and Escapade Inc., t/a Mirage Cocktail Lounge.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Dec. 11, 1981.
    John D. DiGiacomo, Easton, for appellants.
    Kevin J. Kelleher, Easton, for appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

These appeals were taken in this case from an order denying motions for new trial and judgment n. o. v. Since judgment has not been entered, the case is not properly before us. Pa. R.A.P. 301(c); Brogley v. Chambersburg Engineering Company, 283 Pa. Superior Ct. 562, 424 A.2d 952 (1981).

Appeals quashed.


text:
    437 A.2d 1264
    Erik F. LAWSON, Jr., Appellant, v. John E. BOND, Individual and John E. Bond, Executor of the Estate of Helen L. Taylor, Deceased.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Dec. 11, 1981.
    John A. Metz, Jr., Pittsburgh, for appellant.
    Russell J. Ober, Jr., Pittsburgh, for appellees.
    Before CAVANAUGH, WATKINS and HOFFMAN, JJ.
   PER CURIAM:

This is an appeal from an order dismissing appellant’s motion to remove a compulsory nonsuit. We cannot reach the merits of appellant’s contentions however, because the order has not been reduced to judgment and docketed. Accordingly, the appeal is premature and must be quashed. Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Superior Ct. 102, 435 A.2d 1288 (1981); Levin v. Desert Palace, Inc., 291 Pa. Superior Ct. 408, 435 A.2d 1292 (1981).

Appeal quashed.


text:
    437 A.2d 1265
    John C. CHAKLOS, Jr., Appellant, v. Rebetta R. CHAKLOS.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1981.
    Filed Dec. 11, 1981.
    Chris F. Gillotti, Pittsburgh, for appellant.
    Robert Raphael, Pittsburgh, for appellee.

      Before HESTER, JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

Presently before the court is appellant’s appeal from the Order of the lower court dated October 16, 1980, wherein general custody of the two minor children was awarded to appellee-mother, while specific visitation rights were awarded to appellant-father. Following the denial of appellant’s petition for reconsideration, this appeal followed.

We affirm.

The instant custody proceeding was initiated by appellant’s filing of a Petition for Writ of Habeas Corpus. The hearing in this matter spanned three full days, July 10, July 17, and July 18, 1980 during which proceeding, 15 witnesses, including an in-camera interview with the two minor children, were heard. In addition thereto, pursuant to court order, a court-appointed psychologist met and interviewed all four persons (appellant-father, appellee-mother, and the two minor children) on June 13, 1980. That psychologist, James W. Nutter, Ed.D., filed a report including his recommendations concerning general custody; Dr. Nutter also personally testified.

The parties hereto were married on May 1, 1971 and divorced on December 28, 1979. The two minor children who are the subject of this custody proceeding were born of the marriage: James M. Chaklos, on July 18, 1973; and Debra Lynn Chaklos, on November 4, 1974. Following marriage, the parties initially resided in an apartment in Wilkinsburg, Pennsylvania until June of 1975. At that approximate time, appellant graduated from Dental School and accepted employment with Lehman Associates in Chambers-burg, Pennsylvania. The parties moved to Chambersburg where they bought a townhouse at 743 Cumberland Avenue. Due to the fact that appellant had to retake a portion of his Dental Boards, he did not commence his employment with Lehman Associates with offices in Chambersburg and McConnellsburg, until September of 1975 (between June and September, appellant completed a one-month active tour of duty with the Army Reserves in the State of Texas). Following his one-year employment with Lehman Associates, appellant opened his own dental practice in Adams County, Pennsylvania and commuted thereto from the parties’ home in Chambersburg. It was at this time that the relationship between the parties deteriorated dramatically, culminating in a violent argument in the early morning hours of November 8,1978, which caused appellee to flee the next day to her parents’ home at Ridgeway, Elk County, Pennsylvania, with their two children. After both parties engaged counsel, the parties entered into a Stipulation on December 8, 1978 granting general custody of the children to the appellee and awarding partial custody on alternate weekends to the appellant. In the interim, (January of 1979) appellant moved to the Pittsburgh, Pennsylvania area. Appellee finally moved back to the parties’ marital residence with the children in December of 1979.

During that one year period (December, 1978 through December, 1979) appellant exercised his alternating weekend partial custody rights “8 or 9 times”.

During December of 1979, appellant instituted a custody action in Allegheny County during the time the children were visiting with him over the Christmas Holidays. Following a hearing, an Allegheny County Common Pleas Judge directed that the children be returned to the appellee pursuant to the earlier Elk County Custody Order pending a jurisdictional hearing.

On either the second or third weekend of January of 1980, at the end of a weekend visit, appellant refused to return the children to the appellee. Instead, he enrolled James in first grade and Debra in Kindergarten in the South Fayette School District on January 28, 1980. The children were subsequently returned to appellee following a scheduled hearing.

The instant action was instituted by appellant’s filing of a Petition for Writ of Habeas Corpus on June 9, 1980. The court issued the Writ commanding the appellee to bring the parties’ two minor children to the Chambersburg Courthouse on July 10,1980 for a custody hearing. As previously noted, the hearing lasted three full days (July 10, 17 and 18, 1980).

As this court in Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 at 783-4 (1979) so aptly stated:

It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra.

We have engaged in a comprehensive review of this voluminous record and have made our own independent judgment based upon our careful review of the evidence. In discharging this duty, we are satisfied that all relevant facts and circumstances have been fully explored and developed.

With these standards as our barometer, we have concluded that the lower court has made a penetrating and comprehensive inquiry in order to develop a complete record. In support thereof, the lower court has filed a comprehensive Opinion consisting of 67 pages, 193 Findings of Fact, a detailed review of the applicable law, and the reasoning behind its conclusions.

After the court interviewed the two children in-camera with counsel present, the appellant called a clinical psychologist with a Ph.D., Edwinna Sebest, who testified that she had occasion to treat, test and evaluate the children and concluded that it would be in the children’s best interest to be in the general custody of the appellant.

At the next hearing, on July 17, the appellant testified; thereafter, the court-appointed clinical psychologist, Dr. Nutter, testified out of turn as a convenience to him; thereafter, appellee’s sister, Susan Encke, took the stand. It must be noted at this time that Dr. Nutter’s independent and unbiased recommendation was that it would be in the children’s best interests to remain in the general custody of their mother, the appellee.

Later that day, appellee presented her case which consisted of the testimony of her regular babysitter, Gail Appenzellar, aged 29, wife and mother of 3; Stephen Coslett, clinical psychologist, who met with and examined the children on three separate occasions and then reviewed his findings with the appellee on a fourth occasion.

The following day, appellee completed her case by calling Richard B. Mason, a clinical social worker; Linda Guild Lake, the children’s church nursery school teacher; Reverend William H. Harter, Pastor of the Presbyterian Church of Fall Springs in Chambersburg, Pennsylvania; appellee’s father, J. Franklin Reed, aged 68 and retired (it was with him and his wife that the appellee and the children resided in Elk County for approximately a year as earlier discussed); Sarah Snowberger, instructor of the Chambersburg YMCA Aquatic Program in which the two children were involved; Joan Gindlesperger, a friend and the parties next-door neighbor in Chambersburg; and the appellee herself.

We concur with the lower court that the social, moral and spiritual environment created for the children by appellee is stable and beneficial to them; and that their best interests will be served by remaining in appellee’s general custody.

The appellant attempted to reduce this custody proceeding to a “battle of the experts.” The lower court analyzed the expert testimony presented by the parties, as well as the testimony by its own court-appointed clinical psychologist. Although each expert’s analysis of the individual children’s psyches and social adjustment problems was generally consistent, each of the parties’ experts differed as to which would make the better custodial parent. The lower court considered the experts’ testimony in depth and concluded, notwithstanding the testimony of Dr. Sebest, that the children should remain in the general custody of the appellee. We concur.

Further, we are of the opinion that the lower court satisfied its obligation by comprehensively analyzing each of the children’s needs as set forth in its lengthy Opinion. After conducting our own in-depth and careful review of the entire record, we similarly concur with the lower court that the children’s present environment is stable and beneficial to them, and that it would not be in their best interests to alter the general custodial arrangement presently in existence.

Never losing sight of the need for a loving relationship between parent and a child, particularly in a single-parent situation, we concur that the emotional, spiritual, moral, intellectual and environmental life created by the appellee for the childreii, demands that she continue as their custodial parent at this time. •

Order affirmed.

      . The Order appealed from in its entirety provides:
      NOW, this 16th day of October, 1980, IT IS ORDERED AND DECREED THAT:
      1. Primary custody of James M. Chaklos, born July 18, 1973, and Debra M. Chaklos, born November 4, 1974 is granted to Rebetta R. Chaklos, mother.
      2. Visitation custody of said children is granted to John C. Chaklos, father, from 5:00 P.M. on October 24, 1980 until 6:30 P.M. on October 26, 1980, and alternating weekends thereafter.
      3. In even-numbered years father shall have visitation custody with the children from 5:00 P.M. on the first full day of school Christmas vacation until 6:00 P.M. on December 26th and in odd-numbered years from 5:00 P.M. on December 26th until 6:00 P.M. on December 31st.
      4. The summer school vacation shall be divided equally between mother and father according to the summer vacation schedule adopted by the Chambersburg Area School District. If the parties with the assistance of their counsel are unable to amicably agree upon dates for such visitation, the Court will on application of either party enter an appropriate order.
      5. The Court specifically approves of such additional visitation custody for father as the parties may agree upon.
      6. Father shall pick up the children at and return them to the home of mother or arrange for necessary transportation as heretofore has been done by the parties.
      Exceptions are granted both parties.


text:
    437 A.2d 1268
    COMMONWEALTH of Pennsylvania, Appellant, v. James AIELLO.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1981.
    Filed Dec. 11, 1981.

      Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellant.
    James Aiello, appellee, in pro. per.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

Appellee, James Aiello, was arrested on March 27,1979 for exceeding a 50 m.p.h. speed limit posted December 28, 1972 on State Route 15 in York County. The speed limit was established on October 19,1972 by the Department of Transportation upon the recommendation of the Bureau of Traffic Engineering. Appellee was convicted for speeding pursuant to Section 3362(a)(3) of the Vehicle Code (Title 75). The Code, which provides a 55 m.p.h. speed limit for locations outside urban districts, was enacted on June 17, 1976 and became effective on July 1,1977. Appellee filed a Motion to Dismiss because he argues that the speed limit on State Route 15 was 55 m.p.h. He asserts that any lower limit must be affirmatively supported by an engineering and traffic investigation demonstrating that the lower speed limit is a reasonable and safe maximum limit.

In Commonwealth v. Kerns, 278 Pa.Super. 283, 288, 420 A.2d 542, 544 (1980), Judge Cavanaugh reasoned:

Indeed, it would be anomalous if a newly enacted Vehicle Code regulating every phase of motor vehicle usage invalidated lawfully established speed restrictions existing throughout the highway systems of the Commonwealth. .. . (W)e may presume such an absurd and unreasonable result was not intended.

In support of that conclusion, Judge Cavanaugh cited a September 12,1979 order relating to engineering and traffic studies issued by the Department of Transportation, 9 Pa. Bulletin 3571, which stated in relevant part:

Traffic restrictions in effect and duly posted or erected on July 1, 1977 are not subject to the provisions of the chapter, provided:
(1) the Department of local officials have on file evidence that the traffic restrictions were so posted and erected.

We hold that Section 3363 does not require that speed limits in existence at the inception of the new Vehicle Code must be verified by a traffic study in order to sustain a speeding conviction.

Order of the lower court dismissing the citation is reversed, and this case is remanded to the District Justice for sentencing.