author: BECK, Judge:

text:
    579 A.2d 377
    Beverly LOWENSCHUSS, Appellant, v. Fred LOWENSCHUSS, Appellee. Beverly LOWENSCHUSS, Appellee, v. Fred LOWENSCHUSS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1990.
    Filed July 9, 1990.
    Reargument Denied Sept. 11, 1990.

      Albert Momjian, Philadelphia, for appellant (at 1001) and for appellee (at 1195).

      Arthur Lefkoe, Norristown, for appellant (at 1195) and for appellee (at 1001).
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   BECK, Judge:

This case requires us to decide the circumstances under which a spouse may be estopped from asserting the invalidity of the other spouse’s prior foreign divorce. Appellant wife argues that husband is estopped from asserting the invalidity of her 1964 Alabama divorce. We agree.

The parties entered a ceremonial marriage in 1965. At the time of the marriage husband, an experienced attorney, knew that wife had obtained an Alabama divorce from her previous spouse even though she had never lived there. For at least nine and possibly for as long as seventeen years the parties cohabited as man and wife. They had four children. In 1974, husband contends he first became fully aware of the invalidity of wife’s Alabama divorce. In 1981, wife instituted an action in divorce. Husband defended the action on the ground that no valid marriage between the parties exists because of the invalidity of wife’s prior divorce. The trial court agreed and dismissed the action.

We begin our analysis with a detailed recitation of the facts as they emerge from the voluminous record in this action. In 1959, appellant Beverly Lowenschuss (“wife”) married Elliot Bender. The marriage was not successful. In June 1964, wife travelled to Alabama to procure a divorce from Mr. Bender. She did so with Mr. Bender’s consent. Alabama was chosen as the forum for the divorce pursuant to advice from wife’s then attorney, Mr. Edelstein, who put her in touch with an Alabama attorney. Wife spent at most two days in Alabama and does not dispute the fact that she has never been a bona fide resident of Alabama. Wife concedes that she misrepresented that she was a resident of that state in the documents she filed to procure the divorce. The day after wife returned from Alabama, the Circuit Court of Winston County, Alabama entered a divorce decree divorcing her from Elliot Bender.

The trial court made no specific finding as to what wife knew concerning the validity of her divorce from Mr. Bender or the effect of the divorce on her marriage to husband. Wife testified as follows on this subject:

I went to Alabama to obtain a divorce on the instructions of my attorneys, reputable and ethical people, who told me that this is the way one obtains a divorce. My husband at that time was also represented by [an] ethical, respected member of the Bar. If those people told me that this is the way I obtain a divorce, then it was—I was not an attorney at the time. I was 25 years of age, not totally sophisticated, although I was an English teacher. I signed this [the false statement of residency] because that’s—those were the instructions both from by husband’s lawyer and the lawyer whom I met in Alabama. I had never been in a Courtroom in my life up until then. I had never been before a Judge in my life before then. I had never met with lawyers before then and I was quite unsophisticated in the way of the law.

The trial court found only that wife had misrepresented her residency in the documents filed to obtain the Alabama divorce, that Mr. Edelstein did not counsel her to do so and that wife now concedes the resulting invalidity of that divorce. The court made no finding as to whether at the time of the divorce wife knew that the result of her false oath of residency would be that the divorce would not receive recognition in this Commonwealth and that it would be ah impediment to her later marriage to husband.

Five months later wife met appellee Fred Lowenschuss (“husband”) and they began dating. Husband knew that wife was divorced, but denies knowing any of the details concerning how the divorce was procured. However, husband does admit to having seen the Alabama divorce decree prior to. marrying wife and also admits that, prior to the marriage, he knew that wife had never resided in Alabama. Wife and Mr. Edelstein, the attorney who helped her procure the Alabama divorce, both testified that husband had also discussed the divorce with Mr. Edelstein prior to marrying wife and questioned Mr. Edelstein as to the validity of the divorce. Mr. Edelstein testified that he assured husband at that time that the divorce was proper.

The parties were married in December 1965. Within two years they started a family and eventually had four children. However, the marriage was unhappy and, in 1974, husband commenced a divorce action. Shortly after commencing this action, husband withdrew it. Husband testified and the trial court found that his reason for withdrawing the action was that after he had filed it he discovered that wife’s divorce from Mr. Bender was void because the Alabama court had never had jurisdiction to grant the divorce. Thus, husband testified that he withdrew the divorce action because as a member of the bar of this Commonwealth he did not feel he could ethically continue with it. However, husband also admitted that the parties had reconciled their differences at that time. Both wife and the attorney who represented her in the 1974 action testified that to their knowledge, husband withdrew the action solely because the parties had reconciled.

Husband also testified that in 1974 he informed wife that they were not married because her prior divorce was invalid and that although they could continue to live together, he did not consider them married. Wife denied this assertion. The trial court, however, accepted husband’s testimony on this point. The trial court found further support for the conclusion that husband did not consider himself married after 1974 in the fact that after that time, husband filed his tax returns as a single head of household instead of filing a joint return with wife as he had previously done. Finally, the trial court found that after 1974, husband did not introduce or refer to wife as “his wife”.

The trial court did not specifically find any other facts concerning husband’s conduct toward wife following his withdrawal of his 1974 divorce action. However, we note that the testimony of husband concerning this reveals the following:

[Wife’s counsel]: Now, after you, as you testified, decided to withdraw your complaint for divorce in October of 1974 and do the best you could to keep the family together, did you thereafter hold yourself out, nonetheless, to people in the community as husband and wife?
[Husband]: We continued to live the same as we did previously.
[Wife’s counsel]: Did you, Mr. Lowenschuss—
[Court]: Can we answer the question?
[Husband]: Well, Your Honor, that’s the answer. I mean, I didn’t tell anybody we weren’t married other than maybe a close friend of mine. We continued to live the same way as we did before, Your Honor.
[Court]: That doesn’t answer the question. I don’t know whether before you held yourself out to be husband and wife.
[Husband]: We did hold ourselves out as husband and wife before, Your Honor.
[Court]: Before. Okay. Then you did hold yourself out as husband and wife afterward.
[Husband]: We, we continued the same way. I didn’t tell anybody that, by the way, she’s the legal wife of Elliot Bender other than maybe a close friend or two and my associate in the office and so on. It’s not the kind of thing that you brag about.
[Wife’s counsel]: Mr. Lowenschuss, in the transcript of custody proceedings before His Honor, Judge Tredinnick, on June 28, 1983, at Page 244, you admitted that you held Beverly out as your wife after 1974, did you not? [Husband]: I explained to you I did the same thing afterwards as before.
[Wife’s counsel]: So can I get it with a little more clarity? You held her out as your wife before 1974?
[Husband]: Yes.
[Wife’s counsel]: And is it not, then, correct that you held her out as your wife after October, 1974?
[Husband]: We continued to live the same way as before.

Husband further testified that after 1974 he continued to want to have more children with wife and did not wish to seek an annulment because he wanted to keep the family unit together.

Wife countered husband’s evidence concerning whether he considered them married and conducted himself as a married man after 1974 with evidence consisting of various greeting cards exchanged between the parties as married persons, testimony about various trips they took as married persons and the testimony of friends who considered them married.

The trial court’s analysis of the legal ramifications of this situation was straightforward. The court found that wife’s Alabama divorce was void because the Alabama court lacked jurisdiction to grant the divorce. The court further found that the parties did not cure this defect by consenting to the jurisdiction of the Alabama court since Alabama law did not permit divorce by consent. Reasoning from this conclusion, the court found that husband and wife’s Pennsylvania marriage was void under Section 204(a) of the Divorce Code, which states:

(a) Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of any person shall be deemed void in the following cases:
(1) Where either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce, except where such person had obtained a decree of presumed death of the former spouse.

Pa.Stat.Ann. tit. 23, § 204(a)(1) (Purdon Supp.1989).

Thus, the court concluded that since there was no marriage res the court had no subject matter jurisdiction to grant a divorce to wife and, therefore, her complaint in divorce must be dismissed.

The court then proceeded very briefly to analyze and reject wife’s argument that, even conceding the invalidity of her Alabama divorce and the effect that would have on her marriage to husband, nevertheless husband was equitably estopped from raising this impediment to their marriage as a defense to this divorce action. The trial court’s analysis of this issue was as follows:

Plaintiff [wife] raises the issue that Defendant is es-topped from challenging the validity of the Alabama Divorce Decree. None of the requirements of equitable estoppel on the part of defendant are present in this case. In Haines v. Haines, 115 Montg.Co.L.R. 52 (1984) the Court (Lowe, P.J.) held that the doctrine of equitable estoppel could not be invoked against a purported husband to prevent him from asserting the invalidity of the marriage, even if he knew of the prior husband. The Court stated:
“The elements of equitable estoppel are:
(1) misleading words, conduct, or silence by the party against whom the estoppel is asserted;
(2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert the estoppel;
(3) no duty of inquiry on the party seeking to assert the estoppel.
Divine Providence Hospital v. Commonwealth, Department of Public Welfare, 76 Pa. Commonwealth Ct. 188, 191, 192 [463 A.2d 118] (1983).
‘An estoppel may be claimed by one who has acted in ignorance of the true state of fact and who was without means of informing himself of their existence.’ Id., 192 [463 A.2d 118], quoting Livingston v. Livingston, 275 Pa.Superior Ct. 285, 293 [418 A.2d 724] (1980). However, ‘if both parties knew the truth, or have equal access to the truth, there can be no estoppel.’ (emphasis added). As recognized by this Court in the Haines case, supra, there can be no equitable estoppel against the defendant, because the plaintiff herself “was fully appraised of the situation which she herself had created.” The plaintiff cannot escape this crucial fact, regardless of what, if anything, defendant knew about the circumstances of the Alabama divorce at the time of the purported marriage ceremony in 1965.

Trial court opinion, at 12-13.

We find this analysis misguided. Initially, we find that the trial court erred in first considering whether wife’s Alabama divorce was valid and, thus, whether the parties’ marriage was valid. Rather, the proper approach is first to consider whether husband is estopped from raising the issue of the validity of his wife’s prior divorce and of their present marriage. This is so because if he is estopped, the inquiry is at end since no other impediment to the parties’ marriage has been raised.

Thus, we begin with the estoppel issue. We find that Pennsylvania law has long recognized a genre of estoppel that is materially different from classic equitable estoppel and that clearly merits consideration in the context of this case. The trial court erred in confining its analysis to classic equitable estoppel and in ignoring the principles of Pennsylvania law that lend support to wife’s estoppel argument.

The estoppel doctrine of relevance to this case is set forth in Section 74 of the Restatement (Second) Conflict of Laws, which states:

[a] person may be precluded from attacking the . validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so.

Comment (b) to Section 74 further explains that this type of estoppel is:

... not limited to situations of “true estoppel” where one party induces another to rely to his damage upon certain representations. The rule may be applied whenever, under all the circumstances, it would be inequitable to permit a particular person to challenge the validity of a divorce decree. Such inequity may exist when action has been taken in reliance on the divorce or expectations are based on it or when the attack on the divorce is inconsistent with the earlier conduct of the attacking party.

This form of estoppel, peculiarly applicable to matrimonial actions, is unlike classic equitable estoppel in that it does not focus solely on whether one party has made a misrepresentation on which the other has reasonably relied. The focus is broader and requires a consideration of all of the circumstances surrounding not only the procurement of the divorce, but also the conduct of the parties thereafter and the effect of a declaration of the invalidity of the divorce on others. One noted matrimonial scholar has described the various circumstances in which this estoppel principle may operate as follows:

The estoppel under discussion here, however, is an equity principle dependent upon events which may have occurred after the divorce was granted or apart from the divorce action. It is not a function of the decree but a personal disability of the party attacking the decree. It is not a rule of jurisdiction. Therefore its application is not governed by the Full Faith and Credit Clause.
Under what circumstances then will courts invoke or refuse to invoke estoppel?....
The circumstance which most obviously calls for application of. the estoppel theory is that the divorce was obtained by the very party attempting to attack it.
Estoppel may also rest upon acts or events occurring after the divorce in question. A long acquiescence in the divorce with knowledge of its jurisdictional defect will often foreclose an attack, whether the rationale of the defense is labeled estoppel or laches.
Acceptance of benefits, usually alimony, under the divorce has the same consequence. Remarriage after the defective decree, either by the person attacking it, or by the other party, will usually raise an estoppel, as will reliance upon the decree by innocent third parties.

H. Clark, Law of Domestic Relations, § 13.3 at 734-37 (1987) (footnotes omitted).

A review of Pennsylvania case law reveals that equitable estoppel principles have been considered and often applied by Pennsylvania courts for decades in a wide variety of cases involving attacks on invalid divorces. See Diamond v. Diamond, 501 Pa. 418, 461 A.2d 1227 (1983); In re Romanski Estate, 354 Pa. 261, 47 A.2d 233 (1946); Rosen v. Sitner, 274 Pa.Super. 445, 418 A.2d 490-(1980); Sargent v. Sargent, 225 Pa.Super. 1, 307 A.2d 353 (1973); Commonwealth ex rel. Bortin v. Bortin, 210 Pa.Super. 355, 234 A.2d 55 (1967); Commonwealth v. Case, 200 Pa.Super. 200, 189 A.2d 756 (1963); Commonwealth ex rel. Wenz v. Wenz, 195 Pa.Super. 593, 171 A.2d 529 (1961); DeRosay v. DeRosay, 162 Pa.Super. 333, 57 A.2d 685 (1948); Commonwealth ex rel. Allison v. Allison, 151 Pa.Super. 369, 30 A.2d 365 (1943).

Largely these cases arose from actions by a dependent spouse for support or actions in annulment. Most commonly they involved situations where a spouse, who had procured an invalid divorce from a prior spouse, sought to avoid an obligation of support to his present spouse or sought to annul his present marriage by asserting the invalidity of his own prior divorce. For example, in Commonwealth ex rel. Wenz v. Wenz, supra, wife sought support from her husband, from whom she was separated. Husband defended by stating that he and wife were not married because his divorce from his former wife, which he had procured, was invalid. The court granted wife support, holding, inter alia, that husband was estopped from asserting the invalidity of his prior divorce on which both husband and wife had relied in getting married. See also Commonwealth v. Case, supra.

In the recent case of Diamond v. Diamond, supra, the Pennsylvania Supreme Court applied the doctrine of es-topped to estop a party from attacking an invalid divorce which he had procured. There, husband attempted to obtain an annulment of his marriage to wife by asserting that his Alabama divorce from his prior wife was invalid because he had falsely sworn that he was an Alabama resident in order to obtain the divorce. The Diamond court carefully reviewed all of the circumstances surrounding husband’s procurement of the divorce and the events occurring subsequent to the divorce. The court stressed that husband, his former wife and his present wife had all believed the divorce to be valid and had relied on it in remarrying. Moreover, the court pointed out that husband had waited over ten years before attempting to attack the divorce. Then, citing Section 74 of the Restatement (Second) Conflict of Laws, the court held that it would be inequitable under all the circumstances to allow husband to annul his present marriage on the basis of the prior divorce.

Thus, there is no question as to the acceptance in Pennsylvania law of Section 74 estoppel in matrimonial actions where the spouse who seeks to attack an invalid divorce is the very person who procured it. However, of even greater significance to the present case is the fact that this doctrine of estoppel has also been applied to estop an attack on a prior divorce by a third party who was in no way involved in procuring the invalid divorce. This application of the estoppel principle is found in Rosen v. Sitner, supra. In Rosen, Gloria and Arthur Sitner were married in 1950 and separated several years later. In 1963, Gloria went to Mexico and procured a divorce from Arthur. Several months later, Gloria began dating Marvin Rosen, who she married in 1970. They lived together until 1977, when Marvin left Gloria and filed an annulment action on the ground that Gloria’s divorce from Arthur had been invalid. Rosen, 274 Pa.Super. at 447, 418 A.2d at 491. The trial court dismissed the annulment action.

The Superior Court affirmed the trial court. The court specifically relied on Section 74 estoppel in finding that Marvin was estopped from attacking Gloria’s divorce from Arthur, even though Marvin had not participated in procuring the divorce. The court stated that the following considerations were relevant to its holding:

We are ... of the opinion that appellant [Marvin] is now estopped from challenging the validity of the Mexican decree. Having taken advantage of the divorce in order to marry appellee [Gloria] and having cohabited for seven years, appellant will not now be heard to assert that the decree was invalid.
Those decisions which have held third persons estopped have relied upon the particular facts and circumstances involved rather than on a settled rule or a definitive policy. In determining whether estoppel is applicable, factors considered have included the parties, the effect of the decision on other individuals, the nature of the rights sought to be vindicated, public policy, and prior judicial declarations.
In determining .whether it would be inequitable to allow an attack on the foreign decree in this case, the following facts appear. At the time of the marriage, both Marvin Rosen and Gloria Rosen knew that the other had previously been divorced. They had discussed their divorces, and appellant knew specifically that his wife’s divorce had been procured in Mexico. In fact, when the couple applied for a marriage license in New Jersey, copies of their final divorce decrees had been displayed. In marrying, they accepted each other as unmarried persons, fully competent to enter a contract of marriage. At no time prior to separation did appellant question the validity of appellee’s divorce. He cohabited with appellee for seven years, and at all times held her out to be his wife. Not until appellee had instituted an action for support did appellant raise for the first time the issue of the alleged invalidity of the decree, terminating appellee’s prior marriage. Under these circumstances, we conclude that it would have been inequitable to have permitted appellant to assert invalidity of the divorce in an attempt to escape the obligations of his marriage.

Id., 274 Pa.Superior Ct. at 450-51, 418 A.2d at 492-93 (citations omitted).

The decision in Rosen is clearly consistent with the present day policy of this Commonwealth toward divorce and the role of equitable doctrines in such cases. The revolution in our divorce law signalled by the enactment of the Divorce Code was born of a recognition that no useful purpose is served by refusing to recognize the end of a marriage and that the focus should be on achieving equity between the divorcing parties. The Divorce Code is replete with references to the expanded equitable powers of the court presiding over such actions. See, e.g., Pa.Stat.Ann. tit. 23, § 401(c) (Purdon Supp.1989). Thus, application of the doctrine of equitable estoppel set forth in Section 74 of the Restatement to estop a spouse from attacking the other spouse’s prior foreign divorce, on which both parties relied in getting married, where a consideration of all of the circumstances and of the expectations of all of the parties involved support such a decision, is perfectly appropriate under the Code.

Moreover, the Rosen decision is certainly no anomaly in the law of estoppel. Rather, there are numerous decisions where the courts of other jurisdictions have also held that under all of the circumstances, a third party (usually a second spouse of the divorced person) should be estopped from challenging the validity of a foreign divorce. See, e.g., Mussey v. Mussey, 251 Ala. 439, 37 So.2d 921 (1948); Diet rich v. Dietrich, 41 Cal.2d 497, 261 P.2d 269 (1958), cert. denied, 346 U.S. 938, 74 S.Ct. 378, 98 L.Ed. 426 (1954); Fattibene v. Fattibene, 183 Conn. 433, 441 A.2d 3 (1981); Murphy v. Murphy, 34 Conn.Super. 251, 386 A.2d 274 (1978); Goodloe v. Hawk, 113 F.2d 753 (D.C.Cir.1940); In re Marriage of Winegard, 278 N.W.2d 505 (Iowa), cert. denied, 444 U.S. 951, 100 S.Ct. 425, 62 L.Ed.2d 321 (1979); Leatherbury v. Leatherbury, 233 Md. 344, 196 A.2d 883 (1964); Poor v. Poor, 381 Mass. 392, 409 N.E.2d 758 (1980); Zirkalos v. Zirkalos, 326 Mich. 420, 40 N.W.2d 313 (1949); Merino v. Merino, 56 Misc.2d 854, 290 N.Y.S.2d 462 (1968); Mayer v. Mayer, 66 N.C.App. 522, 311 S.E.2d 659 (1984).

Although in some of these cases the party attempting to challenge the foreign divorce decree was estopped from doing so because he had been involved in procuring it, in others the party was estopped despite the fact that he was not aware of the defect in the divorce at the time of his marriage to the divorced party and only learned of the defect sometime much later. For example, in Poor v. Poor, supra, the Supreme Judicial Court of Massachusetts considered whether a husband of a woman who had procured an invalid Haitian divorce from her prior husband could obtain an annulment of his marriage by attacking his wife’s Haitian. divorce. The facts clearly revealed that the husband had no involvement in procuring the divorce and had innocently and in good faith relied on it in marrying wife. In fact, he had examined wife’s Haitian divorce papers prior to his marriage and felt that the divorce was valid. Wife also believed that her divorce was valid. Poor, 381 Mass. at 393, 409 N.E.2d at 760.

The Poor court held that although the facts of the case did not support invocation of classic estoppel, since husband had made no representation to wife on which she had reasonably relied, nevertheless sound policy considerations supported estopping husband from attacking the Haitian divorce. Finding that both parties had in good faith relied on the validity of the divorce and that husband’s attempt to attack it was inconsistent with his prior conduct, the court held that husband was estopped from challenging the divorce. This holding, noted the Poor court, “permits the [trial] judge to consider fully issues of separate support, alimony, and the division of property in the course of probate proceedings for divorce, custody or separate support.” Id. at 396, 409 N.E.2d at 761. See also Zirkalos v. Zirkalos, supra.

We see no relevant distinction between these cases and the one presented for decision today. We recognize that in the instant case the trial court found husband’s version of the facts credible and disbelieved much if not all of wife’s testimony concerning the validity of their marriage. We also recognize that we are bound by the factual findings of the trial court if they are supported by competent evidence of record. Yet we find that even accepting the facts as the trial court found them, a proper application of the law of Section 74 estoppel requires that we reverse the trial court’s dismissal of wife’s complaint in divorce. The trial court’s insistence on analyzing this case solely under traditional principles of equitable estoppel led it to focus solely on such questions as whether husband made a representation to wife on which she reasonably relied, rather than conducting a broad review of all of the circumstances, as is mandated by Section 74 estoppel. Thus, the trial court’s refusal to apply the proper estoppel theory led it to accord great legal significance to certain facts while ignoring other facts which are clearly relevant to the proper disposition of this case.

The foregoing legal discussion demonstrates that the fact that wife’s Alabama divorce may well be invalid and that she misrepresented her residency in order to obtain it is not controlling. It is also irrelevant that in 1974 husband allegedly “discovered” that the divorce might be invalid, told wife of his revelation and thereafter privately considered himself unmarried. None of this in any way affects the fact that both parties relied in good faith on the Alabama divorce in marrying each other in 1965 and continued to rely on that divorce at minimum until 1974. They had four children and considered themselves a married couple. There is no evidence that wife had any knowledge that her Alabama divorce was invalid and an impediment to a valid Pennsylvania marriage when she married husband. She simply proceeded to Alabama on the advice of her Pennsylvania counsel and did what her Alabama attorney told her to do to obtain an Alabama divorce—not an invalid Alabama divorce, but, as far as she knew and was told by her attorneys, a valid Alabama divorce. We note, as we have indicated in footnote 3, supra, that the Alabama judge who granted wife her divorce was later convicted of representing to out of state residents that they could obtain valid Alabama divorces.

Turning to a review of husband’s conduct, we find that there is also no evidence to suggest that husband did not fully satisfy himself that wife’s Alabama divorce was proper before he married wife. The trial court found, based on competent evidence of record, that husband did inquire of wife’s Pennsylvania divorce lawyer whether the divorce was valid and was assured that it was. He also saw the divorce decree before his marriage and knew that wife had never resided in Alabama. Despite these inquiries and husband’s knowledge of the nature of wife’s divorce, husband, then already an experienced attorney, nevertheless proceeded to marry wife and have a family with her.

Insofar as events occurring after the parties’ marriage are pertinent, we are completely unpersuaded by husband’s protestations concerning his conduct after 1974 when he allegedly first discovered that wife’s divorce was invalid. It is of no significance that husband then privately considered himself unmarried and told wife that he did. Husband conducted himself as a married man for nine years before 1974 and after 1974 he continued to live as he had before. He and his wife continued to raise their children together. They continued to travel and socialize together. In fact, this record reveals and the trial court found that after 1974 husband changed only one aspect of his life as a result of his belief that he was not validly married. He began to file his tax returns as a single head of household. Does this constitute a declaration of husband’s single status, binding on this court? Does this alone warrant a holding by this court that these parties were never legally married, that wife is still married to her former husband, who has twice remarried in reliance on this Alabama divorce, and that the parties’ four children were born of a meretricious relationship? We think not. Despite whatever husband may have thought about his marital status after 1974, or whatever he may have told wife about their marital status, none of this alters the fact that the parties both continued to live as husband and wife. They continued to conduct themselves as if there was no impediment to their marriage. Husband cannot now contradict his course of conduct prior to 1974 and, largely, his course of conduct after 1974. He cannot be given the right to decide when the parties are to be considered married and when they are not, depending on what suits his personal or economic interest.

No social purpose will be served by a decision that this marriage simply does not exist and that wife is still the legal wife of her first husband and that her four children were born of an illicit relationship. To hold that husband may now raise this challenge simply in order to avoid the financial obligations of his marriage would be grossly inequitable. Such a decision would contravene the strongly entrenched policy of this Commonwealth favoring preservation of the family unit. See Pa.Stat.Ann. tit. 23, § 102 (Purdon Supp.1989); John M. v. Paula T. and Michael T., 524 Pa. 306, 571 A.2d 1380 (1990) (Supreme Court reiterates that Commonwealth’s interest lies in protecting the family, “the basic and foundational unit of society”; cases involving the principle of “paternity by estoppel” highlight this interest). Moreover, a decision which would allow husband to avoid his marital obligations at this late juncture would be completely inconsistent with the Commonwealth’s contemporary attitude toward divorce, which is grounded in the application of equitable principles to achieve economic justice and overall fairness between the parties. See discussion at pp. 543-547, 579 A.2d at 383-384 supra.

Therefore, we hold that principles of estoppel based on well-established social policies favoring preservation of the family and economic justice require us to estop husband from asserting the invalidity of wife’s Alabama divorce.

Having determined that the trial court erred on this central and threshold issue, we now turn to the plethora of other issues raised on appeal. Here we note that both wife and husband have appealed certain other aspects of the trial court’s decision. However, we consider it either inappropriate or unnecessary for us to consider certain of wife’s and husband’s allegations of error in light of our decision concerning the issue of the validity of the parties’ marriage. For example, wife has appealed from the award of counsel fees she received, contending that her legal expenses were greatly increased by husband’s obstreperous and dilatory conduct throughout this case and that she should have received a higher contribution from husband to defray these expenses. However, we find that it is inappropriate to review this award at this juncture. We have found that the case must now be remanded for prosecution of the divorce action and for equitable distribution. Further legal fees will be incurred in that process. Thus, the present award, which appeared final when this appeal was taken, is now actually only an interim award. As such, it is not subject to immediate review. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). It would certainly be a waste of judicial resources for us to review this award now, knowing that the final attorneys’ fees award is yet to be made. The interim award of counsel fees awarded to wife shall be paid, pending ultimate determination of the final award by the trial court and, if sought, appellate review thereof.

We also find it unnecessary to review wife’s remaining contention on appeal, namely, that the trial court erred in employing its own handwriting expert to determine whether wife’s signature on a certain deed was genuine. Wife contends that the conclusions drawn by this expert, which are very briefly referenced in a footnote to the conclusion of the trial court’s lengthy opinion, influenced the trial court to disbelieve wife’s testimony. Wife does not specify in her brief exactly which of the trial court’s factual determinations may have been influenced by this alleged impropriety. In any event, we find that it does not matter. We have found for wife regarding the major issue presented. The only other issue wife has appealed concerns her award of attorneys’ fees, which we have stated must be left for another day. Thus, we need not address wife’s claim of error on this ground.

Husband has cross-appealed the trial court’s determinations regarding alimony pendente lite, child support and counsel’s fees. As to the latter, for the reasons set forth above, we express no opinion. As to the trial court’s award of alimony pendente lite, we also find it inappropriate to conduct review. As the case is now to be remanded, we find it inappropriate to conduct interim review of the amount of the alimony pendente lite award. See Fried v. Fried, supra. We do conclude, however, that to the extent that husband challenges the alimony pendente lite award on the ground that wife is not entitled to any such award since she is not validly married to husband, his challenge is rejected on the basis of our decision concerning the validity of the marriage.

Lastly, husband has appealed the child support award made by the trial court. Our role in reviewing such an award is narrow. As stated in Commonwealth ex rel. Leider v. Leider, 335 Pa.Super. 249, 255, 484 A.2d 117, 120 (1984), “... [o]ur scope of review is limited to a determination of whether or not the order of support can be sustained on any valid grounds. We must determine whether there was sufficient evidence to sustain the court order or alternatively, whether the court was guilty of an abuse of discretion. A finding of abuse of discretion is not lightly made; but only upon a showing of clear and convincing evidence.”

We have reviewed the record concerning this issue and find that the trial court’s award was well within its broad discretion. The court’s opinion reveals that it did employ the county support guidelines and made its calculation in accordance with the dictates of Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). The court carefully considered all of the circumstances of this family, the needs of the children and, to the best of its ability, the income of the parents in arriving at its child support award. Indeed, in light of the antics of both parties with regard to revealing reliable information concerning their income and assets, the trial court is to be commended for being able to fashion any child support award at all. See Olson v. Olson, 384 Pa.Super. 224, 558 A.2d 93 (1989) (where party seeking benefits of Melzer formula fails to provide accurate information required for use of formula, he is not entitled to reversal for recalculation in accordance with Melzer). We find no error in this aspect of the trial court’s decision.

The order of the trial court is reversed insofar as it dismissed wife’s complaint in divorce. The trial court’s award of child support is affirmed. We express no comment on the alimony pendente lite and counsel fees awards. The matter is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Husband testified that although he was not sure, he did not think he recalled this discussion. The trial court credited Mr. Edelstein and wife on this point.

      . We disagree with this conclusion. The Divorce Code provides, in Section 301, that the common pleas courts of this Commonwealth have original jurisdiction in cases of divorce. Section 302 further provides that this jurisdiction is present where one spouse has been a bona fide resident of the Commonwealth for at least six months immediately previous to the filing of the divorce complaint, such residency creating a presumption of domicile in the Commonwealth. Pa.Stat.Ann. tit. 23, §§ 301, 302 (Purdon Supp.1989). Moreover, subject matter jurisdiction has been generally defined as the power of the court to hear cases of the class to which the case before the court belongs, that is, to enter into the inquiry, whether or not the court may ultimately grant the relief requested. Commonwealth v. Court of Common Pleas of Philadelphia County, 506 Pa. 410, 485 A.2d 755 (1984).
      In fact, the opinions of this court in prior appeals taken by husband from various orders entered by the trial court in the course of this divorce action reveal that husband has repeatedly contended that the trial court had no jurisdiction over the action and that these contentions have been rejected. See, e.g., Lowenschuss v. Selnick, 324 Pa.Super. 193, 471 A.2d 529 (1984); Lowenschuss v. Lowenschuss, 327 Pa.Super. 120, 475 A.2d 127 (1984). In both prior appeals, panels of this court have concluded that the trial court was validly exercising jurisdiction over the divorce action and that the exercise of jurisdiction was with statutory authority. Id.

      Thus, it is clear that the trial court initially had subject matter jurisdiction in this divorce action. If in the course of such an action it becomes necessary for the court to determine the parties’ marital status, then the court has the power to do so. If the court decides that no valid marriage exists, then the divorce complaint must be dismissed because, although the court has jurisdiction over the divorce action, it cannot grant the relief requested because it has determined that there is no marriage to dissolve. If, however, the court decides that a valid marriage does exist, or decides that the party challenging the marriage is estopped, then the court clearly has the jurisdiction to proceed to divorce the parties and decide all related issues.
      As the Superior Court of Connecticut has aptly stated in considering a similar issue;
      ... if the jurisdictional question were determined at this point, it should be determined in favor of the plaintiff [i.e. of finding that jurisdiction does exist] so long as there is a colorable marriage res or status to which jurisdiction might attach. This would be especially pertinent if the court were later to decide that the marriage is not open to collateral attack by this defendant. In this regard it is clear that even if the defendant can collaterally attack the ... divorce some parties may be prohibited from attacking it. Thus, to some extent there is an existing status or res to which jurisdiction can attach.
      The first issue is not whether the marriage is void, but rather, whether it can be collaterally attacked.

        Murphy v. Murphy, 34 Conn.Super. 251, 254, 386 A.2d 274, 276 (1978).

      . Interestingly, the same Alabama judge who granted Mr. Diamond his divorce also granted the divorce to wife in the instant case. As the Diamond court noted, that judge was later convicted of conspiracy to defraud by use of the mails for fraudulently representing to out-of-state residents that they could obtain valid Alabama divorces. Diamond, 501 Pa. at 419-22 n. 1, 461 A.2d at 1227-28 n. 1.

      . Rosen is pertinent to the instant case despite the fact that in Rosen, the court ultimately viewed the wife’s Mexican divorce as entitled to full faith and credit under New York law, the state where the parties had married. The court’s discussion of the estoppel issue clearly reveals that the court would consider husband estopped from challenging wife’s Mexican divorce, even if it were to be held invalid and not entitled to recognition.

      . Husband also contends and the trial court found that husband withdrew his 1974 divorce complaint against wife because he then considered them unmarried. We note that there is no documentary evidence of record showing that the discontinuance of that action was in fact based on this reason. Nevertheless, accepting this explanation for the discontinuance as true, we point out that husband himself admitted that he and wife also reconciled their marital differences in 1974 and both wife and her divorce lawyer at that time testified that this was the sole reason for the discontinuance of the divorce action. Thus, we accord little significance to the discontinuance of the 1974 divorce action or husband’s motivations in withdrawing it.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    579 A.2d 388
    LAVENTHOL & HORWATH, Appellant, v. DEPENDABLE INSURANCE ASSOCIATES, INC. and Republic Hogg Robinson of Pennsylvania, Inc., a/k/a the Wirkman Company v. ANTHONY POPPLE & COMPANY, LTD. and PWS Group, C.W. Hankin & Companies and Chubb & Son Insurance Company and Emmanuel W. Wirkman Company, a/k/a the Wirkman Company, a/k/a 233 Corporation, a/k/a the Wirkman Agency. LAVENTHOL & HORWATH v. DEPENDABLE INSURANCE ASSOCIATES, INC. and Republic Hogg Robinson of Pennsylvania, Inc., a/k/a the Wirkman Company v. ANTHONY POPPLE & COMPANY, LTD. and the PWS Group, C.W. Hankin & Companies and Chubb & Son Insurance Company and Emmanuel W. Wirkman Company, a/k/a the Wirkman Company, a/k/a 233 Corporation, a/k/a the Wirkman Agency. Appeal of FEDERAL INSURANCE COMPANY, Erroneously Designated as Chubb & Son Insurance Company.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1989.
    Filed Aug. 6, 1990.
    Reargument Denied Sept. 17, 1990.

      Edward C. Mengel, Jr., Philadelphia, for appellant (at 527) and appellee (at 705).
    David B. Adams, Cherry Hill, N.J., for Dependable Ins., appellee.
    Maragaret M. Sherry Lurio, Philadelphia, for Anthony Popple, appellee.
    James J. Bee, Philadelphia, for Chubb & Son, appellant (at 705) and appellee (at 527).
    Before BROSKY, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

This appeal from an order entering summary judgment involves a complex insurance dispute regarding coverage for losses sustained as a result of employee thefts. After careful review, we conclude that the entry of summary judgment was inappropriate; and, therefore, we reverse.

In 1981, Laventhol & Horwath (Laventhol) approached Republic Hogg Robinson of Pennsylvania, Inc. (RHR) to obtain a policy of professional liability insurance. RHR obtained the assistance of Dependable Insurance Associates, Inc. (Dependable), a California broker experienced in the London insurance market. Dependable was able to negotiate through Anthony Popple & Company, Ltd. (Popple), a London broker, the policy thereafter issued by a consortium of underwriting syndicates at Lloyds of London represented by the C.W. Hankin Companies (Hankin). This policy provided professional liability coverage and employee fidelity coverage for a period of one year from July 1, 1981 to July 1, 1982. At the request of RHR, acting on behalf of Laventhol, Dependable obtained endorsements clarifying the employee fidelity coverage as follows:

“II. It is understood and agreed that as respects dishonesty; [sic] misrepresentation or fraud the policy covers in addition to claims made against the insured, losses sustained by the insured on [sic] their own property or the property of others.
“III. It is understood and agreed that as respects dishonesty; [sic] misrepresentation or fraud the policy will cover loss discovered within one year following termination of this contract, if written notice of such loss is given to the company within twelve months of termination.”

This policy, according to the averments of the complaint, was renewed without change for the period from July 1, 1982 to July 1, 1983. Following negotiations, the coverage was alleged to have been renewed further for a period from July 1, 1983 to February 1, 1985. In anticipation of the 1985 expiration of fidelity coverage under the Hankin policy, Laventhol obtained coverage, without Dependable’s assistance, from the Federal Insurance Company (Federal), a member of the Chubb Group of Insurance Companies, effective February 1, 1985. This policy provided coverage for losses incurred before the effective date under conditions specified in the policy which essentially required that losses prior to February 1, 1985 be covered under an established policy and which generally placed Federal in the position of an excess insurer regarding prior losses.

In June, 1985, after coverage under the Hankin policy had expired but within the one year extended reporting period established by endorsement No. 10, Laventhol learned of and promptly reported to both Hankin and Federal substantial losses which had occurred as a result of continuing employee thefts. These thefts were allegedly of supplies, labor, equipment and services having a value in excess of one million dollars in Philadelphia and computer supplies and equipment having a value in excess of $46,000 from a branch office in California. The thefts in Philadelphia allegedly had begun in 1980 and had continued until they were discovered in June, 1985.

Coverage was denied under the Hankin policy on grounds that the policy had expired on February 1, 1985 and the provision for an extended reporting period had not been authorized or approved by the insurers. Coverage was also denied by Federal on grounds that its policy did not take effect until February 1, 1985 and the conditions for its assuming liability for prior losses had not been met.

Laventhol filed suit against Dependable and RHR, alleging that they had been responsible for the lack of coverage by Hankin for theft losses occurring prior to February 1, 1985. Dependable denied liability and alleged further that Laventhol had sustained no loss because coverage for such thefts had been provided in the policy issued by Federal. Dependable also joined Hankin, Popple and Federal as additional defendants. The trial court entered an order which stayed all discovery outside eastern Pennsylvania. Consequently, discovery could not be completed. Nevertheless, Dependable and Popple filed motions for summary judgment. On January 18, 1989, the court removed its order limiting discovery and at the same time entered summary judgments in favor of Dependable and Popple. Appeals from the entry of these summary judgments were filed by Laventhol and Federal.

We note initially that Popple’s motion for summary judgment was unopposed in the trial court. This, however, does not constitute a waiver of opposition on its part. Popple was not required by any procedural rule to raise a challenge to the motion in the trial court. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190 n. 2, 544 A.2d 50, 52 n. 2 (1978), appeal denied, 520 Pa. 605, 553 A.2d 968. The trial court’s order in favor of Popple was final and appealable, and the appeals therefrom were properly filed. Because the court’s order as to Popple was grounded on the same premise as the order in favor of Dependable, it is subject to the same analysis.

Summary judgment may properly be entered only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak Associates, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982). To succeed on its motion for summary judgment in this case, Dependable was required to show that there was no dispute as to the facts and that it was entitled to judgment as a matter of law. Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 245, 376 A.2d 247, 249 (1977).

After careful review, we are of the opinion that the entry of summary judgment was premature. The complexities of the insurance coverage issues necessitate a full inquiry into the facts in order to determine (1) whether the employee thefts were covered by the Hankin policy and whether notice thereof was given within the extended time allowed therefor by the provisions of the policy; (2) if there was no coverage under the Hankin policy because the provisions of the policy granting such coverage were not authorized or approved by Hankin, whether Dependable (or Popple) was liable for failing to obtain the coverage requested by Laventhol; and (3) whether the conditions of the Federal policy had been met so as to provide coverage under its policy for losses occurring prior to February 15, 1985.

A plaintiff acquires a cause of action against his broker or agent where the broker “neglects to procure insurance, or does not follow instructions, or if the policy is void or materially defective through the agent’s fault....” 16A Appleman, Insurance Law and Practice § 8841, p. 180 (1981). The broker, in cases of default, is liable “[t]o the same extent as the insurer would have been liable had the insurance been properly effected....” Id. See also: Consolidated Sun Ray, Inc. v. Lea, 401 F.2d 650, 656 (3d Cir.1968), cert. denied, 393 U.S. 1050, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969); Luther v. Coal Operators Casualty Co., 379 Pa. 113, 116, 108 A.2d 691, 692 (1954), overruled on other grounds, Jarvis v. Workmen’s Compensation Appeal Bd., 497 Pa. 379, 441 A.2d 1189 (1981). Dependable, therefore, stands in the position of Hankin if the Hankin policy would have covered Laventhol’s loss but for Dependable’s default. Significantly, the Hankin insurers, in answer to Dependable’s request for admissions, have conceded that the theft loss claims would have been covered under the 1983 to 1985 policy had the endorsement establishing an extended reporting period been authorized and effective. Our reading of the 1983-1985 policy, attached to and incorporated into the complaint, supports the conclusion that coverage would have been available had the fidelity coverage and the extended reporting period been obtained as promised. The two theft losses have been documented by plaintiff. These losses are in excess of one million dollars. Hankin has denied liability for such losses. Consequently, Laventhol has established in the pleadings and supporting documents the elements necessary to hold Dependable accountable for the losses.

Dependable argues that even if it were at fault in failing to obtain the agreed coverage from Hankin, Laventhol cannot recover in this action because it sustained no loss. Laventhol suffered no loss, it is argued, because coverage existed under the subsequent Federal policy. Such an

argument is ingenuous but unavailing. Dependable cannot defeat the cause of action alleged against it by Laventhol by showing that Laventhol might also have asserted a cause of action against Federal. If Laventhol has separate causes of action against Dependable and Federal by which it can recover the theft losses, it may pursue either or both, although it can have but one satisfaction of its claim for those losses. See: Joseph Melnick Building & Loan Ass’n v. Melnick, 361 Pa. 328, 64 A.2d 773 (1949); Capone v. Donovan, 332 Pa.Super. 185, 191, 480 A.2d 1249, 1252 (1984). Compare: Wedgewood Diner, Inc. v. Good, 368 Pa.Super. 480, 534 A.2d 537 (1987). This rule is not altered merely because one of the alternate sources of recovery is an insurance company’s agreement to indemnify the plaintiff for the loss which the plaintiff is attempting to recover from a broker who failed to provide agreed coverage. The fact that Laventhol may be partially or wholly indemnified for its loss by other insurance cannot be asserted by Dependable in mitigation or satisfaction of damages where Dependable did not contribute to the procurement of such other insurance. 25 C.J.S. Damages § 99(2) (1966). See also: Lobalzo v. Varoli, 409 Pa. 15, 17, 185 A.2d 557, 558 (1962); Moidel v. People’s Natural Gas Co., 397 Pa. 212, 222, 154 A.2d 399, 403 (1959); Denardo v. Carneval, 297 Pa.Super. 484, 494-495, 444 A.2d 135, 141 (1982). The Federal policy is a collateral contractual arrangement which does not impair or protect against the liability of Dependable for its wrongdoing, if any. Dependable cannot avoid accountability for its wrongful conduct by shifting the focus of inquiry to the interpretation of a contract between plaintiff and Federal, a contract to which Dependable is not a party. The existence of the Federal policy, even if it does provide coverage, is not an appropriate basis for the entry of summary judgment in favor of Dependable.

It is significant, moreover, that the parties vigorously dispute whether Federal is obligated to provide coverage for losses incurred prior to the policy’s effective date of February 1, 1985. Coverage under the Federal policy for prior losses is dependent on the satisfaction of conditions previously recited. In granting Dependable’s motion for summary judgment, the trial court assumed but did not decide judicially that “[a]ll of these conditions were satisfied in this case.” Federal’s possible liability remains judicially undetermined. Its liability, if any, is still an open question. A determination thereof requires a careful evaluation of the nature and extent of coverage actually available to plaintiff prior to the inception of the Federal policy. That evaluation cannot be made on the present record, for the authorized terms of the Hankin policies are in dispute.

Laventhol alleges that the copy of the 1983-1985 policy attached to the complaint is a true and correct copy of the policy. Hankin and Popple, however, have denied that plaintiff’s copy is a true and correct statement of their agreement. They contend that the terms of their coverage are contained in “cover notes” which do not mention employee theft or fidelity coverage. Therefore, it remains to be determined whether the coverage actually provided by Hankin (as opposed to that promised by Dependable) satisfied the Federal conditions for prior loss coverage. To the extent that the trial court found the Federal conditions for prior loss coverage satisfied on the basis of admissions by Hankin, the court erred. Neither plaintiff nor Federal is bound by statements made by an additional defendant in response to interrogatories. See: 6 Standard Pa.Prac.2d § 32.8 (1982). See also: Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Nanty-Glo Boro v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932).

It is particularly questionable whether Laventhol is entitled to reimbursement under the Federal policy for employee thefts which occurred in 1980 and early 1981. Plaintiff claims that such losses would have been covered under the Hankin policies in the absence of Dependable’s negligence. Such losses, however, pre-dated the Hankin policy, and the subsequent issuance of that policy does not necessarily comply with the conditions imposed by the Federal policy for losses occurring in 1980 and 1981. Finally, Dependable has failed to demonstrate that the Federal policy, which limits liability for employee theft to one million ($1,000,000) dollars, would fully compensate plaintiff for the losses which it has sustained by employee thefts. Plaintiff has reported two incidents of employee theft in a total amount exceeding one million ($1,000,000) dollars. Had Dependable obtained the promised policy provisions from the Hankin insurers, the plaintiffs losses would have been covered to a limit of ten million ($10,000,-000) dollars for each incident and thirty million ($30,000,000) dollars in the aggregate.

Because the entry of summary judgment in favor of defendant, Dependable, and additional defendant, Popple, was in error, it must be reversed.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . Specifically, the policy provisions were as follows:
      3.6 Liability for Prior Losses

      The liability of the Company for loss sustained prior to (1) the effective date of this policy or (2) the effective date additional insureds or coverages are subsequently added, is subject to the following:
      (a) the insured or some predecessor in interest of the Insured carried some other bond or policy (other than a fidelity bond or policy, with respect to such loss under Insuring Clause 4) which, at the time such loss was sustained, afforded on or at the Premises at which the loss was sustained or on the person or persons (whether Employee(s) of the Insured or not) causing the loss, some or all of the coverage of the Insuring Clause of this policy applicable to the loss; and
      (b) such prior coverage and the right of claim for loss thereunder continued under the same or some superseding bond or policy without interruption from the time the loss was sustained until the date specified in (1) or (2) above; and
      (c) the loss shall have been discovered after the expiration of the time for discovery of such loss under the last such bond or policy
      The liability of the Company with respect to such loss shall not exceed the amount which would have been recoverable under the coverage in force at the time the loss was sustained, or the amount recoverable under the Insuring Clause of the policy applicable to the loss, whichever is smaller.
      ******

      . Federal paid Laventhol’s claim for losses occurring after February 1, 1985.


author: OLSZEWSKI, Judge: JOHNSON, Judge,

text:
    579 A.2d 392
    Patricia A. ROSKI, Administratrix of the Estate of Walter Roski, Deceased v. HALFWAY HOUSE, INC., Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued March 21, 1990.
    Filed Aug. 7, 1990.
    Reargument Denied Sept. 17, 1990.
    Petition for Allowance of Appeal Granted Nov. 27, 1990.

      Jay M. Levin, Philadelphia, for appellant.
    Joseph R. Danella, Philadelphia, for appellee.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

The Halfway House appeals from the judgment awarding Walter Roski’s estate $50,000 and delay damages. We find that the trial court properly dismissed Halfway House’s post-trial motions; accordingly, we affirm.

Walter Roski was shot in the elbow during the course of a robbery at the Halfway House, a bar. Roski sued the Halfway House, alleging that it was negligent in failing to protect its customers adequately. On November 4, 1987, the trial court, as factfinder, found that Halfway House was liable to Roski for $50,000 in damages for pain and suffering. On November 12, 1987, Halfway House’s counsel filed a post-trial motion and certified that the notes of testimony were ordered. Two months later, the attorney in charge of the case retired and moved to Florida, leaving no instructions regarding this case.

The next docket entry in this case is Roski’s April, 1989 motion to dismiss the motion for post-trial relief. Roski alleged that Halfway House failed to order a transcript as required by Philadelphia Local Rule 240(c)(4) and failed to exercise due diligence in having the transcript prepared. The trial court found that the Halfway House’s counsel either failed to order the transcript or failed to exercise due diligence in having the transcript prepared. The trial court dismissed appellant's post-trial motion pursuant to Philadelphia Local Rule 240(c)(4).

Philadelphia Local Rule 240(c)(4) provides;

Counsel filing exceptions or post-trial motions shall insure that the notes of testimony, if required, are ordered from the court reporter and shall notify the Post-Trial Motion Clerk in writing when the notes have been ordered. In cases in which there is no dispute about the notes to be transcribed, counsel filing the exceptions or motions shall order the notes from the court reporter within five (5) days after the filing of the exceptions or motions and immediately so notify the Post-Trial Motion Clerk in writing....
Failure to order the notes of testimony or to notify the Post-Trial Motion Clerk that they have been ordered where it is certified that they are necessary shall result in the imposition of sanctions including the dismissal of the exceptions or motions.

The obvious purpose of Rule 240(c)(4) is to ensure that the notes of testimony are provided expeditiously so that the motion can be decided. See DeFazio v. Labe, 518 Pa. 390, 395, 543 A.2d 540, 545 (1988). Due to the conduct of Halfway House’s counsel, the transcript was not prepared promptly and this action was delayed for well over a year. Consequently, the dismissal sanction was exercised appropriately in this case.

Our Supreme Court has held that a trial court may apply Rule 240(c)(4)’s sanctions when counsel fails to pay the deposit for a transcript, even though counsel has ordered the transcript. DeFazio, supra, 518 Pa. at 395, 543 A.2d at 545. The Supreme Court noted that counsel who does not pay the requisite deposit delays the preparation of the transcript, thereby thwarting the purpose of the rule. Accordingly, the Court approved the trial court’s finding that ordering a transcript without making a deposit does not constitute an “order” under the Rule. DeFazio, supra, 518 Pa. at 395, 543 A.2d at 545.

The present case is substantially similar to DeFazio. There is no evidence that appellant’s counsel ever made a deposit. The evidence shows that the firm failed to exercise due diligence in ensuring that the transcript was prepared. The firm took no action regarding this case until appellee moved to dismiss the post-trial motion seventeen months after it was filed. Under the circumstances, we hold the trial court acted within its discretion in finding that appellant’s counsel did not “order” the transcript, and in dismissing appellant’s post-trial motions. Consequently, we affirm.

The dissent points out that the transcript was provided before the trial court dismissed the post-trial motions. We do not find this fact relevant, nor do we find that appellant has “substantially complied” with the rule. The rule is designed to ensure expeditious disposition of motions. Appellant’s conduct did not promote this goal, but actually thwarted it. Appellant delayed this proceeding for seventeen months, and produced the transcript only upon threat of dismissal. The fact that appellant managed to produce a transcript within two months of the motion to dismiss only proves that appellant could have produced the transcript expeditiously if counsel had acted with due diligence in the first place.

The dissent also contends that the trial court imposed sanctions for a violation of ABA Rules of Professional Conduct. Although the trial court mentioned these rules, we find that the court did not base its decision upon them. The court did not punish appellant for attorney misconduct; it punished appellant for delay, as Local Rule 240(c)(4) requires. The trial court’s discussion of ethical rules is nothing more than dicta and is irrelevant to this appeal.

Nor do we find that the trial court erred in failing to consider prejudice. The local rule mandates sanctions when a party fails to order a transcript; it does not require consideration of prejudice. Even if prejudice were an issue, we would find that a seventeen-month delay in consideration of post-trial motions is inherently prejudicial.

Given our holding that the trial court properly dismissed the post-trial motions, we' need not address the merits of this appeal. Nevertheless, we note that we have reviewed appellant’s issues and find them meritless.

Order dismissing post-trial motion is affirmed. Judgment affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

I believe that the trial court abused its discretion in dismissing Halfway House’s post-trial motions. Thus, I respectfully dissent. Halfway House was actually in compliance with the local rule in question at the time that the court dismissed its post-trial motions. I would also hold that the trial court misinterpreted the law with regard to the duty that the Halfway House owed to its patrons. Thus, I would reverse the judgment entered on October 6, 1989 and remand for entry of judgment in favor of Halfway House.

It is true that, under former Philadelphia Local Rule 240(C)(4), now Star Rule *227.1(D)(3), the trial court is empowered to impose the sanction of dismissal should a party not comply with the rule. See DeFazio v. Labe, 518 Pa. 390, 540 A.2d 540 (1988). It is also true that we will not reverse a trial court for waiving or refusing to waive noncompliance with procedural rules in the absence of an abuse of discretion that has caused manifest and palpable injury to the complaining party. Gagliardi v. Lynn, 446 Pa. 144, 151, 285 A.2d 109, 112, (1971); DeFazio v. Labe, supra. However, judicial discretion requires action in conformity with the law based upon the facts and circumstances before the court, after hearing and due consideration. In re Philadelphia County Grand Jury, 347 Pa. 316, 32 A.2d 199 (1943). My review of this case leads me to conclude that Halfway House was in compliance with the rule at the time that the court dismissed the post-trial motions; the court had the transcript and the motions before it and could have addressed the merits of the motion.

The trial court found that the Halfway House either did not order the notes, in violation of former Rule 240, or failed to follow-up to insure that the notes were transcribed. The trial court based its conclusions on the one and one-half year period which elapsed between the date that post-trial motions were filed certifying that the notes of testimony were needed and Roski’s petition to dismiss post-trial motions. The record indicates that the Halfway House did order the notes of testimony. Both in its motion for post-trial relief and in its notice to the post-trial motions clerk, the Halfway House stated that the notes had been ordered. This conclusion is buttressed by the affidavit of an attorney for the Halfway House, which states that the attorney personally called the transcriber and ordered the notes, although he admitted that he did not follow through and see that the required deposit was paid. In the record is a file copy of a letter sent to the transcriber, confirming the telephone conversation and inquiring about the transcription fee.

By the time that the trial court entered its order to dismiss post-trial motions on July 25, 1989, the transcription fee had been paid, and the notes had been transcribed as evidenced by the Halfway House’s memorandum of law in support of post-trial motions, filed on July 17, 1989, which attaches the relevant portion of the transcript. The Halfway House asserts, and Roski does not deny, that this transcript was provided to the court before it dismissed post-trial motions. The facts in the case now before us are to be distinguished from the facts in DeFazio v. Labe, supra, where the post trial motion was dismissed before the transcript fee had been paid and before the transcript had been produced. Moreover, DeFazio involved an appeal where the trial court had found, alternatively, that the post-trial motion was without merit and this finding was not disputed on appeal to our Supreme Court. 518 Pa. 390, at 398, 540 A.2d 540, at 544.

The clear purpose of former Rule 240 is to have the notes of testimony provided in an expeditious manner so that a pending case may be decided. It is not evident that the purpose behind the local rule is purely to punish a neglectful movant. The trial court had before it the materials necessary to address the Halfway House’s claims on their merits, as is the purpose of Rule 240(c)(4). I find nothing of record to indicate that Roski was prejudiced by the delay. Neither did the court discuss prejudice or make any decision concerning prejudice, as it viewed its imposition of the dismissal purely as a sanction for attorney misconduct. Where a party has substantially complied with the requirements of a rule and no prejudice would result, our Supreme Court has instructed us to overlook procedural deficiencies. Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 571-74, 517 A.2d 1270, 1272-73 (1986); Pomerantz v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280, 1281 (1978). I conclude that the court abused its discretion by dismissing the motions.

Just as important, the trial court impermissibly used the sanction of dismissal to punish what it saw as a violation of the rules governing attorneys’ conduct. The court’s opinion indicates that it dismissed the post-trial motions because Halfway House’s attorney failed to exercise due diligence as is prescribed for attorneys in Rule 1.3 of the American Bar Association Model Rules of Professional Conduct. After citing to the A.B.A. Model Rules the trial court concluded:

Under all the circumstances of this case, this Court was of the opinion that there was no merit in defendant’s Motion for Post Trial Relief due to defendant’s lack of due diligence in pursuing the Notes of Testimony. Therefore, this Court dismissed defendant’s Motion.

Opinion, 10/11/89 at 9.

It is well-established that violation of the Code of Professional Responsibility (since replaced by the Rules of Professional Conduct, effective April 1, 1988) is “not a proper subject for consideration of the lower courts to impose punishment for attorney ... misconduct.” Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 220, 489 A.2d 1291, 1299 (1985). The Rules of Professional Conduct do not have the force of substantive law. Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). Because the trial court improperly based its decision to dismiss—at least in part—upon such a violation, the court improperly applied the law and thus abused its discretion.

Having found abuse of discretion in the dismissal, I would address Halfway House’s remaining issues on appeal, which are as follows:

I. SHOULD A BAR OWNER WHO HAS TWO BARTENDERS ON THE PREMISES OF A “NICE BAR” BE HELD LIABLE FOR INJURIES SUSTAINED BY A PATRON DURING AN ARMED ROBBERY WHEN THERE IS NO EVIDENCE OF ANY PRIOR CRIMES OR DISORDER IN THE BAR OR IN THE NEIGHBORHOOD?
II. DID THE TRIAL COURT ERR IN REPEATEDLY PERMITTING INTRODUCTION OF PREJUDICIAL HEARSAY TESTIMONY AT THE TRIAL?
III. WAS THE TRIAL COURT’S AWARD OF DAMAGES JUSTIFIED IN THE COMPLETE ABSENCE OF ANY MEDICAL TESTIMONY?
IV. DID THE TRIAL COURT ERR IN PERMITTING THE TRIAL TO GO FORWARD WHEN THERE WAS NO DULY APPOINTED REPRESENTATIVE OF THE ESTATE.?

The Halfway House argues that there is insufficient evidence to support a finding that the bar was negligent in not providing for its patrons protection beyond that which could be provided by the two bartenders on duty at the time of the armed Robbery in which Roski was injured. It contends that there is no evidence that the bar owners should have been aware of the possibility that their patrons would be harmed while on the premises and that therefore the protection provided was sufficient. I would agree.

The duty of a property owner to protect its business invitees against the acts of third parties is defined by the Restatement (Second) of Torts § 344 as follows:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

The finder of fact must determine that the owner either failed to take reasonable care to discover third party conduct which is occurring or likely to occur, or the owner failed to take reasonable care to provide proper precautions. Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480 (1980).

Restatement (Second) of Torts § 344 comment f elaborates upon these requirements in the context of visitor safety:

Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

In establishing liability in this case, the trial court reasons that “[t]he Halfway House, Inc., is a bar, which invites the public in its premises and serves alcoholic beverages. As a result, it is not unreasonable to assume that bars may reasonably invite violence, especially since money is usually on the premises.” Hence, the trial court seeks to rely upon the character of this business in finding liability.

I find no support for the trial court’s position. Many establishments, not bars exclusively, serve alcoholic beverages and keep money on their premises. It is unreasonable to assume that each such place—restaurants, social clubs, theaters—would naturally attract violence. A distinction between these places and a bar which properly monitors the conduct of its patrons, in the absence of any other warning factors, would have no basis. Thus, I reject the trial court’s assumption that the Halfway House should have been aware of the possibility that there might occur acts which would pose a danger to its patrons simply because of the type of premises that they owned. Accordingly, there must have been introduced at trial evidence of conduct occurring on the Halfway House’s premises of which the owner was or should have been aware, and from which its patrons might be injured.

The only evidence admitted at trial was the deposition testimony of Roski. In this deposition, Roski admitted that he believed the Halfway House was a “nice” bar. However, Roski said that he returned to the bar after the shooting, where he spoke with a couple of police officers who indicated that the Halfway House was a “bookie place” which had been raided a couple of times. Roski also stated that he was told that the Halfway House kept large sums of money on the premises. Roski acknowledged that this information was simply second-hand gossip for which he had no personal knowledge, nor did he know anyone with personal knowledge. Roski also claimed that one person he spoke with at the Halfway House was a bookie and conducted his business from the Halfway House.

This entire line of deposition testimony was properly objected to by the Halfway House at trial on hearsay grounds. The trial court did not rule upon Halfway House’s objections. Nonetheless, it seems from the trial court’s opinion that this evidence was not relied upon. Rather, the trial court appears to have relied upon the bar’s presumed innate character. In the absence of this hearsay evidence, there remains no evidence which would suggest that the Halfway House is anything but a nice bar which properly monitored the conduct of its patrons. There is neither evidence that the robbery was the result of unruly conduct by patrons nor evidence that the bar should have anticipated the robbery because of its locality or past experiences.

It is the duty of the owner of a bar to keep the bar orderly and reasonably well policed. This duty is fulfilled where the owner instructs that the bartender on duty maintain order, unless there is reason to believe that more protection is necessary. See Howard v. Zaney Bar, 369 Pa. 155, 85 A.2d 401 (1952). Since there is no indication here that the owners should have been aware of any conduct which could harm their visitors and thus would give rise to the need for more protection, the owners were not negligent in leaving its premises solely under the supervision of the two bartenders on duty. Because of my resolution of the Halfway House’s first two issues, I would not reach the remaining issues. Hence, I would reverse the $50,000.00 judgment in favor of Roski’s estate as well as the order entered amending the $50,000.00 judgment to include delay damages of $35,225.00, for a molded verdict of $85,225.00.

For all these reasons, I would reverse the judgment entered October 6, 1989 and remand to the trial court for entry of judgment in favor of the Halfway House.

      . Although the DeFazio court was divided on other issues, five of the six Supreme Court justices reviewing the case joined Justice Papadakos’ opinion regarding Rule 240(c)(4).


author: TAMILIA, Judge:

text:
    579 A.2d 398
    COMMONWEALTH of Pennsylvania v. Angel TORRES, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 9, 1990.
    Filed Aug. 13, 1990.

      Jack E. Grayer, Erie, for appellant.
    Douglas J. Wright, Asst. Dist. Atty., Girard, for Com., appellee.
    Before TAMILIA, JOHNSON and CERCONE, JJ.
   TAMILIA, Judge:

Following a jury trial in September of 1988, appellant, Angel Torres, was convicted of aggravated assault (18 Pa.C.S. § 2702(a)(1)), recklessly endangering another person (18 Pa.C.S. § 2705) and receiving stolen property (18 Pa.C.S. § 3925). Although Mr. Torres at that time was properly advised of his right to file motions for new trial and in arrest of judgment and the consequences of failing to do so, no post-verdict motions were filed. Mr. Torres was sentenced on November 15, 1988 to seven and one-half (7½) to fifteen (15) years incarceration for the aggravated assault, five (5) years probation plus costs for the receiving stolen property (consecutive to the incarceration) and costs only for count two, recklessly endangering another person. Appellant was also ordered to make restitution. Neither a motion for reconsideration nor a direct appeal was filed following sentencing. A pro se petition requesting collateral post-conviction relief was filed on January 3, 1989, and Bronislaw Sliwinski, Esq., was appointed to represent appellant. Mr. Sliwinski was granted permission to withdraw from the case on March 30, 1989 due to the closing of his law office. Six months later, current counsel, Jack E. Grayer, was appointed. Mr. Grayer filed an amended petition seeking post-conviction relief which was denied without a hearing by the court on January 23, 1990. This appeal timely followed.

The basic facts underlying this appeal are contained in appellant’s brief as follows:

A[n] Erie police officer responded to a request for backup at 520 W. 18th St., Erie, Pa. He encountered defendant who complained that someone was trying to kill him. The police officer testified that he stepped into a hallway, the defendant emerged from his room, this time holding a 32 automatic pistol, which he raised to the officers chest level and pulled the trigger, the gun did not fire, (NT, 23-26).
The revolver found in possession of defendant was at one time the property of a Mr. B., who testified that the gun has [sic] been taken from the glove compartment of his car, (NT, 45).
Defendant who is a Spanish speaking [sic] testified through an interpreter as to threats to his life at the scene of the criminal episode, and that he misunderstood the police officer in respect to instruction about the gun, that he did not point the revolver at the officer, (NT, 72).

Appellant’s brief at pp. 5-6.

On appeal, appellant offers two broad issues for our review: 1) Did the court below err in failing to grant an evidentiary hearing on whether defendant had waived his appellate rights? and 2) Did the PCRA Court err in refusing to permit defendant to file a motion for reconsideration or modification of sentence?

Prior to addressing those two issues, we believe it is important, in the interests of justice and judicial economy (so as to prevent appellant from later claiming the ineffectiveness of present counsel), to comment briefly on the other issues preserved for appeal in the pro se and amended PCRA petitions. These issues concern alleged pretrial and trial errors, i.e. suppression of appellant’s statements to police (pro se PCHA petition # 9), hearsay (although appellant does not reveal the content of the alleged hearsay, a review of the trial transcript reveals no instances of inadmissible hearsay constituting error) (pro se PCHA petition # 12) and weight of the evidence as to the element of intent necessary for aggravated assault (amended PCRA petition, g). We have carefully reviewed these allegations of error and find them to be without merit. We will also take this opportunity to address a contention contained in the amended PCRA petition and the “summary of the argument” portion of appellant’s brief but not in the argument portion thereof. We agree with the trial court’s disposition of this issue in its Opinion:

Petitioner next claims that this Court erred in instructing the jury regarding the charge of Aggravated Assault. The Court instructed as follows:
There is one other element or one other factor here. That at the time of the defendant’s act, the police officer was making or attempting to make a lawful arrest. I instruct you in the case the arrest the officer was attempting, the arrest was indeed lawful.
(N.T. 9/12/88, p. 129).
Petitioner complains that because this Court did not use the words “in the performance of his duty” instead of “making or attempting to make a lawful arrest” the Court erred and trial counsel was ineffective for not requesting a corrective instruction. Both claims are meritless. The Court first notes that the distinction between the phrases, [sic] on the facts of the present case, is de minimis. Furthermore, the former instruction is broader than the one actually given by the Court and, if anything, the defendant benefited by this Court’s instruction. There was, therefore no error. Even assuming error existed, (a significant assumption) any error was harmless in light of the fact that it was the more limited instruction that was actually given. Commonwealth v. Haight, 514 Pa. 438, 525 A.2d 1199 (1987) (citing Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978)). Additionally, the Court notes that since no objection was made at the time, any claim of error is waived, Commonwealth v. DeBooth, 379 Pa.[Super.] 522, 550 A.2d 570 (1988), and mere allegations of ineffectiveness cannot remedy the consequences of failing to object. [Commonwealth v.] Silvis, [307 Pa.Super. 75, 452 A.2d 1045 (1982) ].[] Any claims relative to the above stated instruction are completely without merit.[]

(Slip Op., Connelly, J., 1/23/90, pp. 5-6.) Although we agree with the trial court that appellant was not prejudiced by the use of the words “making or attempting to make a lawful arrest” instead of “in the performance of his duty,” it is important to emphasize that neither of these two phrases was necessary to the charge. As we indicated in footnote 1, supra, appellant was not charged with an assault upon a police officer (18 Pa.C.S. § 2702(a)(2) or (3)). He was charged with aggravated assault under section 2702(a)(1), which goes to any person—not specifically a police officer. The Commonwealth in this case inadvertently stripped the victim police officer of the special protections he is afforded by statutes such as 18 Pa.C.S. § 2702. Moreover, the Commonwealth’s brief does not even mention this issue, just as it failed to address other issues presented by this appeal. See footnote 4, infra.

As to appellant’s first allegation of error regarding the trial court’s failure to grant an evidentiary hearing regarding the alleged waiver of appellate rights, while we agree that some of the trial judge’s and prosecutor’s statements regarding the court’s “providing of an attorney” for an appeal could possibly be misunderstood, the court’s closing statement to appellant, as well as his response, was perfectly clear—“Now, if you can’t afford an attorney you contact the Court immediately and we’ll contact the proper officials here to have an attorney appointed for you, because if you want to take an appeal or question this sentence you’ll have to do it in writing within ten days; do you understand that? Mr. Torres: Yes, sir.” (S.T., 11/15/89, p. 8.) This instruction should have made it evident appellant had a duty to act in order to have an attorney appointed, but in any event, as we are now taking the opportunity to address all of appellant’s allegations of error, he suffers no prejudice and remand for. appeal nunc pro tunc is not necessary.

We also find no merit to appellant’s claim he should have been provided with translation services at sentencing as he was at trial. Initially, our review of the transcript shows no hesitancy on appellant’s part in responding appropriately to the court’s questions; moreover, appellant is familiar with the criminal process. Most importantly, however, is the appellant’s failure to request a translator when he realized none was available. He was asked three times if he had any questions regarding the proceeding (S.T. at pp. 3, 4, 6). Each time he responded appropriately and did not indicate any lack of understanding. The appropriate time to request an interpreter is when one is needed, not later when results of a proceeding are unfavorable to one’s position. We do not agree with appellant that it was his counsel’s responsibility to say appellant did not understand. Appellant had numerous opportunities to do so himself.

In summary, as to appellant’s first allegation of error, we find no merit—counsel was not ineffective at trial or sentencing; the transcript reveals appellant was told he was required to initiate the process of obtaining a court-appointed attorney; appellant was not hampered or prejudiced by the lack of translation services at sentencing; and appellant now has not been prejudiced by the lack of an evidentiary hearing as to his waiver of appellate rights because we have considered and found all of his allegations of error to be without merit.

Appellant’s second argument alleges error by the trial court in refusing to permit him to file a motion for the reconsideration or modification of sentence nunc pro tunc after such permission was requested in his Post Conviction Relief Act petition. Because we find the sentencing court erred in ordering restitution without making the appropriate inquiries as to ability to pay, we agree the court erred in denying appellant the right to file a post-sentencing motion nunc pro tunc.

The relevant portion of the statute regulating restitution provides as follows:

§ 1106. Restitution for injuries to person or property
(a) General rule.—Upon conviction for any crime ... wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
(c) Authority of sentencing court.—In determining whether to order restitution as a part of the sentence or as a condition of probation or parole, the court:
(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.
(2) May order restitution in a lump sum, by monthly installments or according to .such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution shall not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted.
(3) May at any time alter or amend any order of restitution made pursuant to this section providing, however, that the court state its reasons and conclusions as a matter of record for any change or amendment to any previous order.

18 Pa.C.S. § 1106.

It is evident that in this case the sentencing court failed to comply with section 1106. The court’s entire statement as to restitution was: “There’s quite a bit of money involved with the medical expenses involved. They’re up over a couple thousand dollars now, but you’ll have to pay all the restitution back.” (S.T., 11/15/88, p. 8.)

Since an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation or parole, it must be supported by the record. Among the things the sentencing court must consider on the record are: the extent of the injury suffered, see 18 Pa.C.S. § 1106(c)(1); the fact that the defendant’s action caused the injury and that he will be able to pay for it, and the type of payment—lump sum or installment—that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1). [Citations omitted.]

Commonwealth v. Hainsey, 379 Pa.Super. 376, 388-389, 550 A.2d 207, 213 (1988) quoting Commonwealth v. Fuqua, 267 Pa.Super. 504, 510, 407 A.2d 24, 27 (1979).

Restitution has, as its primary purpose, the rehabilitation of the defendant. Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989); Commonwealth v. Celane, 311 Pa.Super. 93, 457 A.2d 509 (1982). An additional purpose of remand is to provide the complainant with some measure of redress. Commonwealth v. Melnyk, 378 Pa.Super. 42, 548 A.2d 266 (1988). As the sentencing court in this case neglected to comply with statutory and case law in ordering appellant to pay restitution, we are constrained to vacate that portion of the sentence and remand for resentencing as to restitution only. “[T]he court in imposing restitution must make sure that the amount awarded not only does not exceed damages to the victim, but also does not exceed the [appellant’s] ability to pay.” Celane, supra at 102, 457 A.2d at 514, citing Commonwealth v. Erb, 286 Pa.Super. 65, 428 A.2d 574 (1981), and Fuqua, supra.

As to part (b) of appellant’s second allegation of error, appellant argues excessiveness of sentence and an abuse of discretion by the trial court in that it failed to consider evidence in mitigation of sentence. This argument focuses on the fact appellant was not given an opportunity of allocution prior to the imposition of sentence as is required by Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 (1989).

Pennsylvania Rule of Criminal Procedure 1405, effective since 1973, provides in pertinent part:

Rule 1405. Sentencing Proceeding
At the time of sentencing, the judge shall:
(a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencingf.]

While it is undisputed Rule 1405 was in effect at the time appellant was sentenced, unfortunately, for appellant, the interpretation of the rule, as promulgated by Thomas, supra, was not.

Our Supreme Court in Thomas discussed the history of “ancient inquiry,” the right of a defendant to personally address the court prior to sentencing. This right, historically, was the means by which an accused could speak for himself—plead for mercy. Although Rule 1405 provides only that a defendant has a right to speak at the sentencing proceeding, the Court in Thomas interpreted it to mean prior to sentencing.

Since a trial judge will not know in most cases whether a defendant is aware of his right to address the court prior to sentencing, but Rule 1405 requires the court to afford the defendant an opportunity to speak, we understand Rule 1405 to require the trial court to inform the defendant of his right to speak prior to sentencing.
The ruling in this case shall not be retroactively applied to any case other than the present case.

Id., 520 Pa. at 209-210, 553 A.2d at 918 (emphasis supplied). See Commonwealth v. Melvin, 392 Pa.Super. 224, 572 A.2d 773 (1990). As Thomas, supra, was decided on February 1, 1989, and appellant herein was sentenced on November 15, 1988, Thomas is not applicable. Appellant’s argument, therefore, is without merit since he did have an opportunity to speak at the sentencing proceeding—albeit after the sentence was imposed, which is all that was required by Rule 1405 at that time. We find no merit, therefore, to appellant’s argument as to his right to allocution prior to sentencing.

As to appellant’s general, sweeping statements regarding the failure of sentencing counsel to articulate evidence of personal background, circumstances of the crime as related to appellant’s intoxication and his confusion, we find no arguable merit. The sentencing judge had the benefit of a presentence report which we can assume he considered even if at sentencing he failed to mention all of the details contained therein.

Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself.
* * * * * *
Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.

Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). With regard to the circumstances of the crime, these were fully developed in the jury trial and the jury, as fact finders, chose to believe the police officer’s version of events when it convicted appellant.

Having found error by the trial court only as to the sentence of restitution, we vacate only that portion of the sentence. The sentence of incarceration is affirmed.

The Order denying PCRA relief is reversed to the extent resentencing on the restitution portion of the judgment of sentence is required. Case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . We note that although the victim of the aggravated assault was a police officer, appellant was charged under 18 Pa.C.S. § 2702(a)(1) rather than (a)(2) which specifically concerns police officers as victims. As convictions under both sections are graded as felonies of the first degree, however, there is no effect on the propriety of the sentence.

      . Although captioned a Post Conviction Hearing Act Petition, the petition was actually filed under the Post Conviction Relief Act, effective April 13, 1988.

       Regarding petitioner’s ineffectiveness claim on this issue, in light of the record a reasonable basis for failing to object can easily be found.

       Petitioner also alleges trial counsel’s failure to object to the instruction at time at issue as a basis for counsel’s ineffectiveness. The allegation is a classic example of a boilerplate ineffectiveness claim. Not only does the basis for the claim (failure to object) lack any merit but counsel’s inaction was reasonably based. Finally, the petitioner, if anything, benefited from the narrower definition of assault, and certaily [sic] based on the facts of the case cannot show any prejudice since it is clear from the evidence the officer was indeed acting “in the performance of his duty.”

      . Appellant’s entire statement consisted of the following: “Yeah, if the police officer would tell the truth I wouldn’t be here right now because he’s lying.” (S.T., 11/15/88, p. 9.)

      . We believe it is necessary to admonish the Commonwealth/appellee for its failure to file a brief which even begins to adequately discuss the issues before this Court on appeal. Appellee’s brief, in fact, did not even mention the restitution or allocution issues, both of which have arguable merit.