author: TAMILIA, Judge: KELLY, Judge,

text:
    576 A.2d 1076
    Edward L. ASHFORD, Appellant, v. Mary ASHFORD.
    Superior Court of Pennsylvania.
    Argued March 27, 1990.
    Filed June 15, 1990.

      Charles E. Kurowski, Canonsburg, for appellant.
    Morley M. Azorsky, California, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from judgment entered October 25, 1989 following the trial court’s Order awarding the parties shared custody of their minor child.

Appellant/father and appellee/mother Mary Ashford were married on July 27, 1984, but separated in August, 1988, with appellant moving into his parents’ home and appellee living apart with Edward, Jr. Appellant filed a complaint on February 10, 1989 for custody of his son, Edward L. Ashford, Jr., born February 19,1983. Following a child custody conference before a master, who recommended sole custody be given to appellant, the court granted appellee’s request for a trial de novo, which was held on September 28,1989. After trial, the court entered an Order on September 29, 1989 finding the best interest of the child to be in joint custody between appellant and appellee, with each providing approximately equal custody on alternate weeks. The Order was reduced to judgment, and this appeal followed.

On appeal, appellant first argues the trial court erred in refusing to allow the introduction of the transcript of testimony taken at the child custody conference before the master. Appellant sought to introduce the testimony of a private detective and a Cecil Township police officer, both of whom had been examined by counsel for the parties at the custody conference. As a basis for admission of this testimony, appellant relies upon 42 Pa.C.S. § 5934 Notes of evidence at former trial, which states in pertinent part:

Whenever any person has been examined as a witness in any civil matter before any tribunal of this Commonwealth or conducted by virtue of its order or direction, if such witness afterwards dies, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent to testify for any legally sufficient reason, and if the party against whom notes of the testimony of such witness are offered, had actual or constructive notice of the examination and an opportunity to be present and examine or cross-examine, properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination, or which may be afterwards formed between the same parties and involving the same subject-matter as that upon which such witness was so examined____

Appellant contends the custody conference constituted a “tribunal of this Commonwealth.” We disagree.

In reference to the conference, the court stated, “I do not consider that a hearing. That conference is to try to get the parties to resolve their differences without a Court trial.” (N.T., 9/28/89, p. 45.) The court elaborated on this position in its Opinion:

The Court rejected this offer on two grounds: (1) the proceedings before the child custody conference officer is [sic] not a proceeding of record pursuant to statute or rule even though on occasion notes of testimony may be taken in order to aid the conference officer in the preparation of a recommendation to the Court; and (2) the mere fact that [appellant] did not either subpoena or arrange in advance to have the witnesses available and could not locate them on the day of the Court trial does not make them “unavailable” pursuant to the statute.

(Slip Op., Gilmore, J., 12/1/89, p. 3.)

We agree with the position of the trial court. Appellant has provided no other statutory authority or case law for his argument, nor has this Court been able to discover authority in support of appellant’s contention. We do not find transcripts facilitating the role of hearing officers, whose findings and recommendations are not binding until adopted by the court, fall within the intended ambit of section 5934, and therefore this claim is without merit.

The Act of 1895, June 26, P.L. 316, § 2, 48 P.S. § 92, provides:

§ 92. Judges to decide disputes as to children’s custody
In all cases of dispute between the father and mother of such minor child, as to which parent shall be entitled to its custody or services, the judges of the courts shall decide, in their sound discretion, as to which parent, if either, the custody of such minor child shall be committed, and shall remand such child accordingly, regard first being had to the fitness of such parent and the best interest and permanent welfare of said child. 1895, June 26, P.L. 316, § 2.

There is no subsequent legislation or rule of court which supersedes the above requirement that a judge shall decide, in his sound discretion, to whom an award of custody shall be made. Our position in this respect is reinforced by the Custody Act, 23 Pa.C.S. § 5301 et seq., which makes no change in procedures affecting trial of custody cases. The Divorce Code, 23 P.S. § 304, provides as follows:

§ 304 Hearing by masters
A master may be appointed by the court to hear testimony on all or some issues, except issues of custody and paternity____

(Emphasis added.) The Rules of Civil Procedure promulgated by the Supreme Court for the conduct of custody proceedings contain no indication masters or hearing officers have any authority to conduct hearings or make recommendations to the court. Pa.R.C.P. 1915.1-.25. To the contrary, in the rules governing support hearings, Pa.R.C.P. 1910.1 et seq., specific and detailed provisions are contained in Rules 1910.10 Alternative Hearing Procedures, 1910.11 Office Conference. Subsequent Proceedings. Order, 1910.12 Office Conference. Hearing. Record. Exceptions. Order. These provisions provide for two levels of hearings, one more judicial than the other. In a 1910.12 proceeding, the court may adopt the Order of the permanent hearing officer, after exceptions and argument, without a hearing de novo, as would be required under Rule 1910.11.

We are aware that in many, if not most, counties, drawing from the rules and procedural law (cited above) in support cases, counselors or hearing officers have been designated by the courts to review and conciliate custody matters preliminarily, and that the findings resulting from conferences are frequently the basis for entrance of a decree of custody by the trial judge. We do not disapprove of this function as it serves to advance custody proceedings and in most cases provides an acceptable means of resolving a custody dispute more expeditiously and with a saving of judicial time and expense to the court and litigant. The effect is no more than would be the case wherein the parties entered into a custody agreement.

This does not, however, mean that the act of 1895 can be ignored. When a party is not willing to accept the results of the conference proceeding and Order by the court based solely on those proceedings, the parties are entitled to a hearing de novo. The hearing de novo must be one which requires all matters to be litigated, regardless of their having previously been reviewed at conference, except that where the hearing was conducted before an attorney, designated as a hearing officer by the court, and the witnesses were under oath, with evidence being presented in an orderly fashion and the same degree of formality as other cases heard in this fashion, the court may adopt so much of the proceeding which remains uncontested at the time of the de novo hearing while requiring additional evidence or proof to resolve contested issues or matters not considered by the hearing officer. In no case is the de novo procedure to be simply a review for error or a rubber stamp approval of the recommendation of the hearing officer.

Of all cases presented to the courts, none is considered more important than the determination of the custody of children. For this reason, we will always defer to the requirement that the trial judge pass on the testimony and evidence to support findings he believes are sufficient to enable him to exercise his discretion. The trial court may not deny a custody litigant the right of total de novo review, as here, should the litigant believe it necessary to have the trial court experience the direct sensory impact of live witnesses and evidence. With such interests at stake, we must err on the side of caution and more extensive review rather than encourage or. permit superficial and inadequate procedures. Just as the law has insisted on a broad scope of review in appellate consideration of custody matters, so must the trial judge be permitted broad discretion in determining the adequacy of the trial record. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987); Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1985).

Appellant would have us reverse the trial court because it failed to accept the findings and recommendation of the hearing officer. Despite the fact the hearing officer was administratively designated by the court and the testimony was taken under oath (the record does not disclose whether or not the hearing officer was an attorney), we believe it is discretionary with the trial judge as to whether any findings or recorded statements are admissible. Appellant would have us find the statements of police and a private detective, taken at an earlier hearing under oath, were admissible, pursuant to section 5934, supra, because both parties were unavailable at the time of the trial de novo. Since we have held above the unique role of the trial judge in custody proceedings requires great sensitivity to his perception of the facts and personalities involved, we cannot preclude him from the right to hear all evidence first-hand. We, therefore, need not discuss whether or not the officers were available pursuant to section 5934.

Appellant next argues the environment offered by appellant when compared to that of appellee does not justify a joint custody award, but rather full custody in appellant with partial custody awarded to appellee.

In an appeal of a child custody determination made by a trial court, the paramount concern must be the best interest of the child. Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988). To insure the focus of the trial court was on the best interest of the child, appellate courts operate under a broad standard of review in custody matters; however, we may not reverse the decision of the trial court absent a gross abuse of discretion. Dolan v. Dolan, 378 Pa.Super. 321, 548 A.2d 632 (1988).

In the instant case, a lengthy de novo hearing was held on the issue of whether Edward, Jr.’s interests would be better served by his living with appellant in the home of appellant’s parents or continuing to live with appellee. Both parties testified and were cross-examined, as well as appellant’s mother and Edward, Jr. himself. While the custody court had an obligation to consider all relevant factors which could affect the child’s well being, we are not concerned with idle gossip or unsubstantiated allegations. DeNillo v. DeNillo, 369 Pa.Super. 363, 535 A.2d 200 (1987).

Based upon our review of the trial testimony, we are not prepared to find the trial court’s findings constituted a gross abuse of discretion. The testimony of appellant and his mother contradicted that of appellee but was given less weight by the trial court than that of the mother. The court found the mother’s home adequate, although her friends were suspect. It found the father’s living conditions marginally adequate. (Slip Op., p. 2.) From the testimony and pictures presented on the record, it would be more consistent to have found the father’s living conditions to be more desirable. Appellant’s major concern is the environment of the child created by appellee’s relationships with certain unsavory friends and relatives “with questionable backgrounds and various difficulties with the law” who frequented appellee’s home. The trial court found there was “insufficient proof, however, that any of these persons had any influence on or performed any custodial duties in regard to the minor child.” (Slip Op., p. 2.) This finding is strongly disputed by appellant, the child witnesses corroborated some of appellant’s allegations and appellant claims its police witnesses will further bolster them. While the trial court minimizes the criminal backgrounds of the mother’s brothers and friends, we are particularly concerned about the sexual charges pending against her brother, Freeland Matthews (I.D.S.I., Attempted Rape, Statutory Rape, Indecent Exposure). She minimizes his contact and influence as does the trial court, but the constant interaction between the mother and all of the parties with questionable background has not been satisfactorily resolved by the court, even though we cannot, at this point, say a gross abuse of discretion occurred.

Having said this, because of the requirement that all custody hearings be full and comprehensive and all witnesses be heard who can contribute to that understanding, we believe it was error for the trial court to deny appellant a continuation in order to bring forward the police officer and private detective. The fact that the court opted for “equal” custody and ordered psychological counselling for the parents and child indicates some uncertainty as to which of the parents is best able to nurture the child. In reviewing the evidence and trial transcript, there were numerous disturbing allegations about the maternal associations and environment, and statements by the child (discounted by the court) which corroborated the allegations. Under these circumstances, the court should have permitted the case to be continued to hear and evaluate the two witnesses in order to have a better grasp of the credibility of the parties and truth of the allegations. Also, it would have been desirable for the court to have an independent appraisal of the home environment of both parents to determine whether the child, particularly in sleep, had proper conditions of cleanliness and security. Allegations that he was sleeping on a “stinking” couch, and sometimes on the floor, in the mother’s home are disturbing. The mother’s allegation of the child sleeping on a couch with his father in the gameroom basement of the paternal grandparents’ home is likewise a matter of concern. This could be achieved through a home investigation by the Children and Youth Service or a private agency. We are concerned here because the findings of the trial court are far short of being incontrovertible, and while recognizing certain inadequacies, the trial court’s disposition borders on being unreasonable in light of those facts. See Robinson, supra.

Shared custody as directed by the court is the most difficult custody to effect without harm to the child. Constant shifting and uprooting of a child between his parents can be traumatic unless the parents are stable and place the child’s welfare and interests above their own. This record does not suggest that either parent has the emotional or mental maturity to make such an arrangement work. The court has not provided a sufficient basis upon which to conclude that shared custody under these circumstances will work or is in the child’s best interest. Shared custody would appear to provide the child the worst of both worlds provided by his parents.

We are not prepared to reverse the Order of the trial court but are not of the opinion that the record is adequate to support the trial court’s decision or to afford us the opportunity for a proper review.

We, therefore, remand this matter to the trial court for the following actions:

1) To obtain the psychological report on the parents and child;
2) To obtain a home evaluation by an appropriate agency of the homes of both parents; and
3) To permit the introduction on the record of testimony of the police and private detective as requested by appellant.

The case is remanded to the trial court for compliance with this Opinion, which shall be accomplished within 60 days of the date of filing. Upon making findings and conclusions therefrom in support of a custody decree, the case will again be reviewed by this panel.

Panel jurisdiction is retained.

Concurring statement by KELLY, J.

KELLY, Judge,

concurring:

I join in Judge Tamilia’s cogent opinion in this case. I write separately with respect to the applicable standard of review, for clarification purposes only.

In Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990) this author summarized the applicable standard of review as follows:

On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. See Karis v. Karis, 518 Pa. 601, 608, 544 A.2d 1328, 1332 (1988); Lombardo v. Lombardo, 515 Pa. 139, 147-48, 527 A.2d 525, 529 (1987); Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236-37, 478 A.2d 800, 805-06 (1984).

394 Pa.Super. at -, 574 A.2d at 1142.

I find nothing in the majority opinion contrary to that standard. However, as Karis, Lombardo, and Robinson had expressed narrower constructions of this Courts’ “broad” powers of review than this Court had previously followed, I find it appropriate to specifically note that we use the “broad review” characterization consistent with the limitations expressed in those cases.

      . We note it is not necessary to reduce a custody Order to judgment as the appeal properly lies directly from the Order. See Pa.R.C.P. 1915.-10; Pa.R.A.P. 903(a). In any case the appeal in this case was timely filed.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    576 A.2d 1082
    COMMONWEALTH of Pennsylvania v. Gary Raymond BARTLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1990.
    Filed June 12, 1990.

      Stephen Delpero, New Wilmington, for appellant.

      William M. Panella, Dist. Atty., New Castle, for Com., appellee.
    Before ROWLEY, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

On February 16, 1989, appellant was convicted by a jury of two counts each of robbery and criminal conspiracy. His post-trial motions were denied and he was sentenced in open court on November 3, 1989, but the judgment of sentence was not entered on the docket until November 15, 1989. Appellant filed his notice of appeal on December 5, 1989. Before discussing the merits of the appeal, we need to address the question of timeliness.

A notice of appeal must be filed within 30 days “after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). There has been much confusion over when the appeal period actually begins, however, because the meaning of the word “entry” in Rule 903(a) is unclear.

To further muddy the waters, the line of cases attempting to clarify the issue are sometimes in apparent conflict with Pa.R.A.P. 108, Date of Entry of Orders, and the cases explaining that rule. Rule 108 provides, inter alia:

(a) General Rule.
(1) Except as otherwise prescribed in this rule, in computing any period of time under these rules involving the date of entry of an order by a court or other government unit, the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties, or if such delivery is not otherwise required by law, the day the clerk or office of the government unit makes such copies public. The day of entry of an order may be the day of its adoption by the court or other government unit, or any subsequent day, as required by the actual circumstances.

This Court, in Commonwealth v. Dorman, 272 Pa.Super. 149, 414 A.2d 713 (1979), held that the trial court gave the phrase “adoption by the court” in Pa.R.A.P. 108 full effect when it sentenced defendant and told him he had 30 days from that day to appeal. The Court also stated there is no requirement in criminal cases that the date of entry is the date the notice notation, required under Pa.R.C.P. 236(b), is entered on the docket—unlike in civil cases. Id. Similarly, in In re Fourth Statewide Investigating Grand Jury, 510 Pa. 496, 509 A.2d 1260 (1986), the Supreme Court held that because: (1) the defendant and his counsel were present on September 24, 1985 when the contempt finding was made and sentence imposed; (2) a written order dated September 24, 1985 embodied the finding; and (3) the Order was effective as of that date, “[c]learly, September 24, 1985 was the day on which the order was ‘adopted’ by the court and the date governing the beginning of the appeal period.” Id., 510 Pa. at 501, 509 A.2d at 1262. We note, however, that in Fourth Statewide Investigating Grand Jury, no mention is made of the entry of the Order on the docket.

However, our Supreme Court, in Commonwealth v. Cavanaugh, 500 Pa. 313, 456 A.2d 145 (1983), gave, what we believe to be a clear definition for time of appeal and if followed, provides uniformity for the tolling of appeal periods. “When the defendant appeals from a judgment of sentence, the time for appeal runs from the date that the court imposes sentence, informs the defendant of his or her right to appeal within thirty days, and enters the judgment on the docket.” Id., 500 Pa. at 315, 456 A.2d at 146 (emphasis added). See also Commonwealth v. Ferguson, 381 Pa.Super. 23, 552 A.2d 1075 (1988), where we followed Cavanaugh, supra, and explained that “the thirty day period for filing notice of appeal commences upon formal entry of judgment of sentence, rather than when the sentence to be entered was first announced in open court.” Ferguson, supra, 381 Pa.Superior Ct. at 27, n. 1, 552 A.2d at 1077, n. 1. Until the judgment is entered on the docket, the appeal period has not begun. Since appellant in the instant case filed his notice of appeal within 30 days of the docket entry, this appeal is timely.

The robberies occurred on September 13, 1988 when appellant and his brother, Fred Bartley, robbed the Country Fair Food Mart at 7:51 p.m. and the Dairy , Food Mart at 8:26 p.m., both stores located in New Castle. Appellant raises two issues: 1) whether the court erred in refusing to allow appellant to question his brother as a hostile witness and introduce Fred’s criminal record; and 2) whether the court erred in admitting certain physical evidence recovered from appellant’s vehicle.

As to his first issue, appellant claims he was “surprised” by his brother’s testimony at trial because it differed from a prior written statement and if Fred had testified as expected, the introduction of the criminal record would have been proper. The prior statement Fred had made to police was a confession to the robberies and implication of appellant in planning them and driving the getaway car. At appellant’s trial, however, Fred testified on direct examination as a defense witness that he never discussed robbing the Country Fair with his brother. Fred repeated this assertion on cross-examination and on redirect he claimed he really didn’t remember anything about the night because of alcohol consumption. The trial court denied appellant’s request to declare Fred Bartley a hostile witness because the court disbelieved appellant’s assertion of surprise. Appellant called Fred as a witness even though appellant had not previously discussed with him his proposed testimony nor had he received any indication as to what Fred’s testimony would be. Moreover, Fred’s testimony was not harmful to appellant but beneficial because it tended to exculpate appellant.

While we recognize appellant’s argument that the Federal Rules of Evidence allow any party to impeach any witness, that is not the law in Pennsylvania. The trial judge has discretion in allowing defense counsel to cross-examine his own witnesses. Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986). We find the trial court did not abuse its discretion in denying appellant’s request to cross-examine Fred as a hostile witness.

It is established that counsel may cross-examine his own witness on a plea of surprise when the witness has given testimony which was unexpected, contradictory to statements which the witness had made earlier, and harmful to the party calling the witness and beneficial to the opposing side.

Commonwealth v. Smith, 511 Pa. 343, 353, 513 A.2d 1371, 1376 (1986).

We agree with the trial court that the claim of “surprise” is diminished when counsel did not previously interview the witness for a statement. In addition, the testimony was not harmful to appellant nor beneficial to the Commonwealth. Since the denial of appellant’s request was proper, we need not address whether appellant should have been allowed to impeach Fred with his criminal record.

As to appellant’s second issue, he argues the court erred in admitting items found in his car as fruits of the robberies when no proper foundation was ever laid. The items were introduced through Officer Book who was the arresting officer but appellant argues the chain of custody was not established because it had no beginning point.

On the evening of the robberies, Officer Book received a radio call reporting the robbery at the Country Fair Food Mart. He arrived at the scene, got a description of the getaway car and began to cruise the area in search of the vehicle. As he did so, he received another call, this one regarding the robbery at the Dairy Food Mart. While en route, he observed a vehicle matching the description of the getaway car and he stopped the vehicle. Officer Book saw several items in the car (now at issue) and arrested appellant who was the driver. Within two minutes, Officer Book was replaced by Lieutenant Abraham so that Officer Book could continue on to the Dairy Food Mart to investigate the second robbery.

On the day of trial, Officer Book removed the items from the police department’s evidence locker and brought them with him to the courthouse. He identified the items on direct examination as the ones he observed in appellant’s car.

The standard for establishing a chain of custody for admission of physical evidence was stated by the court in Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980):
The admission of demonstrative evidence is a matter committed to the discretion of the court ... Furthermore, there is no requirement that the Commonwealth establish the sanctity of its exhibits beyond a moral certainty ... Every hypothetical possibility of tampering need not be eliminated; it is sufficient that the evidence, direct or circumstantial, establishes a reasonable inference that the identity and condition of the exhibit remained unimpaired until it was surrendered to the trial court ... Finally, physical evidence may be properly admitted despite gaps in testimony regarding its custody____

Id. at 631-32, 414 A.2d at 1387 (citations omitted).

Commonwealth v. Bruner, 388 Pa.Super. 82, 99, 564 A.2d 1277, 1285 (1989) (emphasis in original).

The testimony of Officer Book was sufficient to establish at least a reasonable inference the identity and condition of the exhibits remained unimpaired. We agree with the court that the items were not the type easily tampered with or altered, nor would there be a purpose in doing so.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3701(a)(l)(ii).

      . 18 Pa.C.S. § 903(a)(1) and (a)(2).

      . Neither appellant nor the Commonwealth has raised this issue but we may raise it sua sponte as it is a question of jurisdiction. Andursky v. Andursky, 382 Pa.Super. 1, 554 A.2d 571 (1989).

      . The reason for distinction is that civil cases frequently are taken under advisement at the end of the case, and weeks may elapse before an Order is entered, hence the necessity for Pa.R.C.P. 236(b).


author: HOFFMAN, Judge:

text:
    576 A.2d 1085
    Kathleen NOVELLI, Executrix of the Estate of George Novelli, Appellant, v. JOHNS-MANVILLE CORPORATION, Raybestos Manhattan, Nicolet Industries, Inc., GAF Corporation, Unarco Industries, J.P. Stevens, Inc., Garlock, Inc., Celotex Corporation, Amatex Corporation, Owens-Corning Fiberglas Corporation, Keasbey Mattison, Johns-Manville Sales Corp., Forty-Eight Insulations, Inc., Pittsburgh, Corning Corporation, Owens-Illinois Glass Company, H.K. Porter, Inc., Eagle-Picher Industries, Inc., U.S. Rubber, Uniroyal, Inc., Pacor, Inc., Asbestos Textile Institute, Asten-Hill, Keene Corporation (Two Cases). Kathleen NOVELLI, Executrix of the Estate of George Novelli v. JOHNS-MANVILLE CORPORATION, Raybestos Manhattan, Nicolet Industries, Inc., GAF Corporation, Unarco Industries, J.P. Stevens, Inc., Garlock, Inc., Celotex Corporation, Amatex Corporation, Owens-Corning Fiberglas Corporation, Keasbey Mattison, Johns-Manville Sales Corp., Forty-Eight Insulations, Inc., Pittsburgh Corning Corporation, Owens-Illinois Glass Company, H.K. Porter, Inc., Eagle-Picher Industries, Inc., U.S. Rubber, Uniroyal, Inc., Pacor, Inc., Asbestos Textile Institute, Asten-Hill, Keene Corporation. Appeal of The CELOTEX CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 22, 1990.
    Filed June 19, 1990.

      Joseph D. Shein, Philadelphia, for appellant (at 2712 and 2713) and appellee (at 2807).
    Albert J. Smith, Jr., Philadelphia, for Celotex, appellant (at 2807) and appellees (at 2712 and 2713).
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

These cross-appeals are from an Order and judgment entered on September 11, 1989 awarding plaintiff-appellant, Kathleen Novelli, a total of $825,000 in connection with a suit she and her now-deceased husband brought against defendant-cross-appellant and several other defendants for (a) injuries he suffered by inhaling asbestos they manufactured; and (b) Kathleen Novelli’s loss of consortium. In her appeal, appellant Novelli claims, inter alia, that the damages awarded for her loss of consortium claim should have extended beyond the date of her husband’s death. In its cross-appeal, Celotex also raises a claim, inter alia, regarding delay damages. Specifically, Celotex argues that the trial court erred in awarding Rule 238 delay damages for the portion of the verdict that represents Novelli’s recovery for loss of consortium. For the reasons that follow, we find neither party’s claims meritorious, and, accordingly, we affirm the judgment of the trial court.

The decedent, George Novelli, received extensive exposure to asbestos while employed as a rigger’s helper in the Philadelphia Naval Shipyard from 1965 to approximately 1971. In November of 1981 the decedent was diagnosed as having Mesothelioma, an asbestos-related form of lung cancer. On December 4, 1981, he and his wife, appellant Kathleen Novelli, filed a products liability action against several defendants, including cross-appellant Celotex Corporation. The decedent died on April 4, 1982. The case proceeded to trial before a jury, and on March 14, 1989, the jury returned a verdict awarding $700,000 for compensatory damages to the decedent, and $125,000 for loss of consortium to Kathleen Novelli. Celotex moved for Judgment Notwithstanding the Verdict on March 28, 1989. On March 31, 1989, Novelli moved for a Limited New Trial on damages. Both of those motions were denied, and judgment was entered for Novelli in the total amount of $825,000 on September 11, 1989. Novelli also moved for delay damages in March of 1989. That Petition was amended on August 18, 1989. In response, Celotex filed a Motion for Apportionment of the Delay Damages. Both motions were granted on September 20, 1989, and Novelli was awarded $56,309.12 in delay damages. The verdict was molded to reflect the delay damage award, and was reduced to judgment. These timely cross-appeals followed.

I.

Novelli claims that the damages awarded for her loss of consortium claim should have extended beyond the date of her husband’s death. She notes that an award for loss of consortium is designed to compensate a party for losses resulting from a spouse’s death or injury. Therefore, she argues, because she is still suffering the loss of her husband’s society and companionship, compensation for her loss of consortium, to be complete, should include her suffering beyond the date of his death to his life expectancy. When viewed in terms of the principle that a party should be fully compensated for his or her entire loss, Novelli argues, the trial court limitation on her consortium recovery is inequitable.

In Pennsylvania, loss of consortium has been recognized as:

[A] right growing out of the marriage relationship which the husband and wife have respectively to the society, companionship and affection of each other in their life together. As thus defined and limited, any interference with this right of consortium by the negligent injury to one spouse, should afford the other spouse a legal cause of action to recover damages for that interference.

Burns v. Pepsi-Cola Metro. Bottling Co., 353 Pa.Super. 571, 575, 510 A.2d 810, 812 (1986) (citation omitted). Appellant has cited no Pennsylvania cases, and our research has revealed none, that specifically address the issue of whether damages for loss of consortium should extend to the time after the decedent’s death. However, it appears that most jurisdictions limit such damages to the time between a spouse’s injury and his death. See, e.g., Nenoff v. Thompson, 480 F.2d 1221 (6th Cir.1973); Burke v. United States, 605 F.Supp. 981, (D.Md.1985); Archie v. Hampton, 112 N.H. 13, 287 A.2d 622 (1972). This position is also taken by the Restatement (Second) of Torts (1977), which states that:

In case of death resulting to the impaired spouse, the deprived spouse may recover under the rule stated in this Section [regarding compensation for loss of consortium] only for harm to his or her interests and expense incurred between the injury and death. For any loss sustained as a result of the death of the impaired spouse, the other spouse must recover, if at all, under a wrongful death statute.

Id. § 693 comment f. Appellant has offered no persuasive reason for us to depart from the traditional limitation. Accordingly, we decline to hold that plaintiff-appellant is entitled to recover for loss of consortium past the date of her husband’s demise.

II.

Celotex Corporation argues that the trial court erred in awarding Rule 238 delay damages for the portion of the verdict that represents Kathleen Novelli’s recovery for loss of consortium. Specifically, Celotex argues that delay damages should not have been predicated upon the loss of consortium claim because loss of consortium is not a claim “for bodily injury, death or property damage.” We disagree.

Pa.R.Civ.P. 238 provides, in relevant part, that:

(a)(1) At the request of the plaintiff in a civil action •seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury____

Id. at 238(a)(1). The current version of Rule 238 was derived from principles explicated in our Supreme Court’s decision in Craig v. Magee Mem. Rehab. Ctr., 512 Pa. 60, 515 A.2d 1350 (1986). The Craig court discussed the general purpose of delay damages, as follows:

Rule 238 was promulgated as an exercise of this Court’s rule-making authority. It was a bold experiment that seemed reasonable, salutary and equitable. It was reasonable because it sought to clear dockets cluttered by unreasonable refusals to pay what was owed. It was salutary in that it provided a penalty for profiting by denying what was due. It was equitable because it compensated for loss caused by an unreasonable refusal to correct a tortious injury.

Id., 512 Pa. at 64, 515 A.2d at 1352. Although Craig revised the old Rule, and the old Rule has since been replaced by present Rule 238, the purpose of the Rule has remained the same.

The specific question we must determine is whether loss of consortium damages are in the nature of damages for “bodily injury, death or property damage.” Although it is true that a spouse suing for loss of consortium is not seeking compensation for his or her own physical injuries, our courts have recognized that a loss of consortium claim is inextricably intertwined with the underlying action for personal injury. For example, in Linebaugh v. Lehr, 351 Pa.Super. 135, 505 A.2d 303 (1986), the decedent was killed when the bicycle on which he was riding was hit by an automobile driven by the defendant. The issue in Lehr was whether the decedent’s widow had a separate cause of action for loss of consortium in addition to her right to recover for wrongful death. We held that no separate cause of action exists for loss of consortium if a suit has been brought for wrongful death. In so holding, we noted that:

The consortium claim and the personal injury claim are closely interconnected; together, they represent the total, compensable damages—direct and indirect—suffered as a result of the principal plaintiffs injury____ The consortium plaintiff ... has suffered no direct injury---- Her right to recover is derived, both in a literal and legal sense, from the injury suffered by her spouse.

Id., 351 Pa.Superior Ct. at 137, 505 A.2d at 304 (emphasis added). In light of the derivative nature of the action for loss of consortium, we are satisfied that loss of consortium is part of the total compensable damages arising from the decedent’s bodily injuries, and we hold that loss of consortium is part of “what was owed” under Craig.

We find further support for this conclusion by noting that not to allow delay damages for loss of consortium awards would undermine the purpose of Rule 238. As noted above, Rule 238 is designed to encourage responsible approaches to these cases and prevent unreasonable refusals to pay what is owed for tortious injury. Here, Celotex’s refusal to settle delayed compensation to Novelli for both the decedent’s claim and her loss of consortium. We see no reason to let Celotex benefit from this delay.

In summary, we hold that, because loss of consortium is part of the total compensable damages related to the decedent’s injuries, Rule 238 delay damages may be assessed on awards for loss of consortium. Accord Hughes v. GAF Corp., 364 Pa.Super. 311 (1987) (delay damage award based on molded verdict which included award for loss of consortium), appeal denied 517 Pa. 623, 538 A.2d 876 (1988); Kowal v. Commonwealth, Dept. of Transp., 100 Pa. Commw. 593, 515 A.2d 116 (1986) (delay damages in personal injury suit based in part on award for loss of consortium). The trial court, therefore, did not err in imposing delay damages based on Novelli’s award for loss of consortium in connection with her husband’s death.

For the foregoing reasons, we affirm the judgment of the trial court.

Judgment affirmed.

      . Pa.R.Civ.P. 238, 42 Pa.C.S.A.

      . All defendants except Celotex Corporation had settled with plaintiff-appellant prior to the end of the trial.

      . Although a review of the Notes of Testimony reveals that the jury returned a verdict in the above-mentioned amounts, the trial court entered judgment on the verdict by awarding $750,000 to the decedent’s estate and $75,000 to plaintiff-appellant for loss of consortium. See Trial Court Order, September 11, 1989. The record is not clear regarding why the amounts attributable to the claims changed. Neither party raises a claim relating to this apparent discrepancy.

      . Novelli also argues that: (1) the delay damages assessed against Celotex should have been based on the entire verdict; and (2) the trial court erred in refusing to admit testimony regarding the decedent’s potential loss of earning power to age 70. After carefully reviewing the record and the briefs submitted by the parties, we conclude that the trial court adequately addressed and properly disposed of these arguments in its Opinions. Accordingly, we need not further address them here.

      . Accord 41 C.J.S. Husband and Wife § 401(5) (1944) ("Under common law principles a husband may recover for consequential damages, such as loss of services and consortium, resulting from injuries to his wife which eventually end in her death, but the estimate of damages stops at the moment of death.”) Id. Although this language refers to the common law rule, which recognized only the right of a husband to recover for loss of consortium, Pennsylvania has extended the rule to include wives. See Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974).

      . Celotex also argues that its motion for judgment notwithstanding the verdict should have been granted because: (1) Novelli failed to meet the burden of proof required to show that the decedent inhaled asbestos fibers emitted by its product; and (2) Novelli failed to provide that Celotex’s failure to warn the decedent of the dangers of its product was the proximate cause of his injuries.
      After carefully reviewing the record and the briefs submitted by the parties, we conclude that the trial court has adequately disposed of Celotex’s first two claims in its opinion. Accordingly, we need not further address them here.
      Finally, Celotex argues that (3) Rule 238 is unconstitutional because it violates its rights to due process and equal protection. We have carefully examined Celotex’s post-verdict motions, and can find no reference to this issue. Accordingly, it is waived. See Pa.R.Civ.P. 227.1; Ecksel v. Orleans Constr. Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). We also note that, even if the claim were properly preserved and we agreed with Celotex, it would be inappropriate for the Superi- or Court to hold the Rule, promulgated by our Supreme Court, unconstitutional. Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990) (any determination regarding constitutionality of Rule 238 can only emanate from Supreme Court). Finally, we note that the claim clearly is meritless. See id. (Rule 238 not patently unconstitutional); Shellhamer v. Grey, 390 Pa.Super. 122, 568 A.2d 224 (1989) (Rule 238 held not unconstitutional on equal protection and due process grounds).


author: OLSZEWSKI, Judge:

text:
    576 A.2d 1089
    Kimberly FAGER, Appellee, v. Philip J. FATTA, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 23, 1990.
    Filed June 19, 1990.

      William E. Chillas, Lancaster, for appellant.

      James Hagelgans, Lancaster, for appellee.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a support order entered by the Court of Common Pleas of Lancaster County requiring appellant to contribute $20.00 per week towards the support of his daughter, appellee. On appeal, the following issues are submitted for our review:

A. Was it error for the court to find no estrangement between appellant father and appellee daughter when determining post-secondary educational support?
B. Was it error for the court to determine that the case of Bedford v. Bedford, [386 Pa.Super. 349, 563 A.2d 102 (1989)] was “erroneous and ridiculous” and ther[e]fore not applicable?
C. Was it error for the court to accept into evidence an expense statement that was incomprehensible, untotalled, and which did not conform to copies supplied to counsel for appellant?
D. Was it error for the court in failing to allow reasonable examination of the mother’s ability to contribute to the support of the post-secondary education of appellee?

Brief of appellant at 4. For the following reasons, we affirm.

On February 13, 1989, appellee, the adopted daughter of appellant, filed a complaint in which she requested support in the amount of $150.00 per week to be used to help defray her educational expenses. On April 25,1989, on the recommendation of a Domestic Relations officer, the court dismissed appellee’s complaint. After the filing of exceptions, the matter came before the trial court on September 1, 1989, at which time the court directed that the case be continued. Thereafter, on November 6, 1989, following a hearing, the court ordered appellant to pay the sum of $20.00 per week for the support of appellee plus an added $5.00 per week for arrearages. Appellant then filed the instant appeal.

It is well established that the scope of appellate review in child support cases is very narrow. The appellate court will disturb a trial court’s findings only when the judge has clearly abused his or her discretion. “[A] finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence.” Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355-56 (1986) (citations omitted). What constitutes an abuse of discretion is also well settled. It is not “ ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793, 794 (1985) (citation omitted). The scope of review in such cases is not altered by the fact that the order is for college support as opposed to support for a minor child. See Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102, 104 (1989); Leonard v. Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986); Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 234 A.2d 18 (1967).

Pharoah v. Lapes, 391 Pa.Super. 585, 589-590, 571 A.2d 1070, 1072-1073 (1990).

It is a long-standing position in this Commonwealth that a parent has a duty to support a child attending college if the child possesses the desire and ability to successfully pursue post-secondary education and if such support does not amount to an undue hardship on the parent. See Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963). Recently, however, this Court has added another factor to be considered where appropriate. In Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989) (en banc), we held that, in addition to the other factors, parents do not have a duty to support college-age, children if those children willfully estrange themselves from their parents. The concept of willful estrangement is similar to that of “fault” in spousal support and alimony. Milne, supra, 383 Pa.Superior Ct. at 189-91, 556 A.2d at 861. In defining the same, a panel of this Court remarked:

Estrangement between a parent and child will only relieve or lessen a parent’s duty to pay support towards a child’s college education when that parent has made a concerted and good faith effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent’s outstretched hand.

Bedford v. Bedford, 386 Pa.Super. 349, 358, 563 A.2d 102, 106 (1989).

With the above principles in mind, we turn to appellant’s claims. Appellant initially contends that the trial court erred in concluding that appellee has not estranged herself from a relationship with her father. We disagree. Our examination of the record indicates no evidence of estrangement which would relieve appellant of his duty of support. Appellant points to a lack of communication for a period of approximately two years on the part of appellee towards him and the fact that she continues to use her former, rather than adopted name. These facts, even if true, do not warrant a finding of willful estrangement especially where, as here, nothing in the record indicates any action on the part of appellant to establish a relationship prior to appellee’s filing of her complaint for support. Moreover, as the trial court noted, since the filing of this action, the parties have begun communicating and appellee’s use of her former name, which she indicated was out of force of habit, has ceased. Accordingly, the court did not abuse its discretion in finding no willful estrangement on the part of appellee. Therefore, this claim must fail.

Appellant next argues that the court erred in finding our recent panel decision of Bedford v. Bedford, supra, inapplicable to the case at bar. This argument is totally without merit. In Bedford, among other things, we held that it was error for the trial court to fashion an award of support for a son’s college expenses where nothing in the record indicated whether the court considered the father’s expenses. Here, as in Bedford, we have a situation where the father claims he cannot provide support for his child’s education due to the fact that his reasonable expenses exceed his income. Unlike Bedford, however, the trial court did examine appellant’s expenses and found some to be unreasonable. Appellant claims that these findings were erroneous as his counsel was not permitted to provide further testimony regarding the expenses. Our review of the record, however, reveals no request on the part of counsel to be allowed to provide such testimony. For both reasons, then, this claim is rejected.

Third, appellant contends that the court erred in admitting into evidence an incomprehensible expense statement which did not conform to copies supplied to appellant’s counsel. This contention is likewise meritless. There was extensive testimony by appellee concerning her expenses, with counsel for appellant, counsel for appellee, and the court all taking turns at examining the witness. Though the expense statement may indeed have been confusing as submitted, the court took the time to explain to counsel for appellant the amounts it was taking into consideration and how they were computed. Counsel for appellant was given every opportunity to examine the witness regarding these amounts and, in fact, did so. Accordingly, appellant cannot now be heard to complain.

Finally, appellant argues that he should have been granted leave of court to further examine appellee’s mother’s ability to contribute towards the educational expenses of her daughter. This claim of error centers around the allegation that the mother is in possession of certain income-producing marital assets which could be used towards appellee’s post-secondary education. Again, appellant was provided an opportunity to examine the mother on this issue and did so extensively. As a result of this examination, it was learned that these assets no longer existed. No attempt was made by appellant to offer any testimony to rebut this assertion although he was certainly free to do so. Moreover, testimony was introduced concerning the mother’s income and her efforts in contributing towards appellee’s educational expenses. From this testimony it was learned that the mother, though earning considerably less than appellant, feeds and houses appellee during holidays and summer vacations when school is not in session. The trial court found this support appropriate under the circumstances and we agree. Accordingly, we see no reason why leave of court should have been granted to further delve into this issue.

Order affirmed.

      . Appellee is currently a full-time student at the Pennsylvania State University’s Mont Alto campus. She had been previously receiving support from appellant by means of an earlier support order; however, the payments ceased upon her attaining the age of majority.


author: DEL SOLE, Judge: HUDOCK, Judge,

text:
    576 A.2d 1092
    COMMONWEALTH of Pennsylvania v. James Edward BALOG, Appellant.
    Superior Court of Pennsylvania.
    Argued March 21, 1990.
    Filed June 19, 1990.

      William E. Duffield, Uniontown, for appellant.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge:

In this case we are asked to decide whether the trial court abused its discretion when it ordered a mistrial, over defense counsel’s objections, as a result of Appellant/Defendant’s statement that his co-conspirator had been found not guilty in an earlier trial. Because we find that there was no “manifest necessity” to order a mistrial, we reverse the trial court’s denial of Appellant’s motion to dismiss, and order the instant action dismissed on the basis that Appellant’s re-prosecution would violate the Double Jeopardy provisions of the United States and Pennsylvania Constitutions. Commonwealth v. Gains, 383 Pa.Super. 208, 556 A.2d 870, 876 (1989).

Appellant, James Edward Balog, was chargéd with rape, corruption of minors, involuntary deviate sexual intercourse, indecent assault, and criminal conspiracy to commit these crimes. An alleged accomplice, Charles Belch, was charged with the same offenses. At his earlier, separate trial, a jury convicted Mr. Belch of corruption of minors and acquitted him of the other offenses.

Mr. Balog testified at trial that he had just briefly met the alleged victim, Marlene Hackney, at Charles Belch’s house during a New Year’s Eve party. He also stated that he had attended several other parties that evening where he had been drinking heavily, and then returned to Mr. Belch’s house where he fell asleep on the couch. On cross-examination he was asked about certain inconsistencies between this account of his activities and a prior statement he made to State Trooper Fuller. Assistant District Attorney Heneks asked:

Q. (By Mr. Heneks) Now, Mr. Balog, again I will ask you the question, did Trooper Fuller ask you anything in regard to Marlene Hackney?
A. I don’t believe he did. He jsut [sic] said that she made some allegations.
Q. And in response to that, did you tell him that you don’t recall messeing [sic] with the girl?
A. I told him I don’t recall.
Q. That’s right.
A. That’s what I told him.
Q. Well, isn’t that, in fact, a different statement that I don’t recall messing with the girl?
A. I can’t tell you exactly what I told him on that day.
Q. But you’re not quarreling with Trooper Fuller putting that information down that you don’t recall messing with the girl?
A. He could have put down anything that he wanted.
Q. And are you saying that you said that?
A. I don’t recall what I said. It has been 15 or 16 months ago.
Q. But if I understand, you are not really denying that either?
A. Of course, I am denying it. I didn’t say I did anything with her. Charlie was not guilty; why should I be found guilty? (N.T. May 4, 1989 at 287-288).

At this point the Commonwealth moved for a mistrial, and the defense objected stating that to a declare a mistrial at this time would be highly prejudicial to the defendant, and that the statement was just a spontaneous response from a layman who was not familiar with trial procedure. Nevertheless, the court ruled that the statement that Charles Belch was not guilty was highly prejudicial to the Commonwealth and granted a mistrial.

Following the discharge of the jury, Appellant moved for dismissal of the information claiming that the trial judge abused his discretion in granting a mistrial, and alternatively, that the conspiracy charges against the Appellant should be dismissed because of the acquittal of the alleged co-conspirator on the same charges. The trial court denied this motion holding that there was manifest necessity to grant the mistrial. It stated, “for defendant to blurt out that since Belch was not guilty why should he be found guilty was certainly prejudicial to the Commonwealth”, (iOpinion and Order, July 10, 1989 at 5).

Pennsylvania Rule of Criminal Procedure 1118(b) provides that:

When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

Since Justice Story’s 1824 opinion in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165, it has been well settled that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant’s request or consent depends on where there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976). “Where the judge, acting without the defendant’s consent aborts the proceeding, the defendant has been deprived of his valued right to have his trial completed by a particular tribunal.” United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971).

Reprosecution and the subjection of an individual to the hazard of trial and possible conviction more than once for an alleged offense, is only “grudgingly allowed.” United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975), cited in Commonwealth v. Williams, 373 Pa.Super. 270, 541 A.2d 7 (1988). “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.” Id. at 273, 541 A.2d 7, citing, Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). In determining whether the circumstances surrounding the declaration of a mistrial constitute manifest necessity, we apply the standards established by both Pennsylvania and federal decisions. Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980).

The Perez doctrine of manifest necessity stands as a command to trial judges not to declare a mistrial without the defendant’s consent until a scrupulous exercise of judicial discretion leads to the conclusion that a termination of the trial is manifestly necessary. United States v. Jorn, supra, 91 S.Ct. at 557. Failure to consider if there are less drastic alternatives to a mistrial creates doubt about the propriety of the exercise of the trial judge’s discretion and is grounds for barring retrial because it indicates that the court failed to properly consider the defendant’s significant interest in whether or not to take the case from the jury. Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976).

It is well established that any doubt relative to the existence of manifest necessity should be resolved in favor of the defendant. Bartolomucci, supra, 468 Pa. at 347, 362 A.2d 234; Commonwealth v. Bradley, 311 Pa.Super. 330, 457 A.2d 911 (1983). Therefore, the failure of the court to consider less drastic alternatives before declaring a mistrial, which we have said creates doubt about the propriety of the exercise of the trial judge’s discretion, may bar retrial because of double jeopardy protections.

Our supreme court has intentionally avoided establishing a catalog of situations in which a mistrial is dictated by manifest necessity, and has instead stated that each case must “turn on the particular facts”. Commonwealth v. Bolden, 472 Pa. 602, 638, 373 A.2d 90, 107 (1977). However, there are certain circumstances in which the courts commonly grant a mistrial for manifest necessity. The illness of the presiding judge which is expected to delay trial for a significant period (two weeks or more), is one of those circumstances, Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573, cert. denied, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975); Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290, vacated on other grounds, 491 Pa. 461, 421 A.2d 636 (1977). However, the most frequently encountered circumstance constituting manifest necessity, and thus justifying discharging a jury without placing the defendant twice in jeopardy, is the inability of the jury to agree on a verdict such that the jury is hopelessly deadlocked. Commonwealth v. Kivlin, 267 Pa.Super. 270, 406 A.2d 799 (1979); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978); Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983); Commonwealth v. Williams, 373 Pa.Super. 270, 273, 541 A.2d 7 (1988); 21 Am.Jur.2d Criminal Law § 194 et seq. (1965). In such cases a mistrial is the natural result of the practical inability of the original tribunal to complete the trial.

Nevertheless, if there is any doubt that a deadlocked jury exists, then manifest necessity for a mistrial is not present. Thus, in Bartolomucci, supra, 468 Pa. at 348, 362 A.2d 234, where the trial court failed to inquire directly of the jury, either individually or through the foreman, about its inability to agree, our supreme court held that the declaration of a mistrial was an improper exercise of discretion. Such an inquiry would have provided greater certainty about the hopelessness of breaking that deadlock, or the possibility of overcoming the impasse by further deliberations, and therefore the necessity for the mistrial was open to doubt.

In other cases where findings of manifest necessity were predicated upon an uncorroborated and therefore doubtful assertion that a Commonwealth witness was ill, our courts have ruled that the trial court did not have the facts to justify subjecting appellants to the continuing ordeal of a pending trial. Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971); Commonwealth v. Dull, 257 Pa.Super. 192, 390 A.2d 777 (1978).

Similarly, the existence of doubts about whether it was necessary to terminate a trial when a juror was released from sequestration, resulted in a holding that the declaration of a mistrial was not manifestly necessary. Walton v. Aytch, supra, 466 Pa. at 182, 352 A.2d 4. In this case, during the course of the trial, the trial judge decided that the jury had to be sequestered because of the surrounding publicity. Two of the jurors asked to be excused because of the hardship this would cause, with the result that there were no alternate jurors available. Subsequently, the judge was informed that one of the twelve remaining jurors was very distressed because she had been unable to find a baby-sitter for her children. As a result, without consulting either counsel, the trial judge allowed the juror to go home without requesting her to return the next day, and the trial was aborted.

Our Supreme Court ruled in Aytch that the propriety of the declaration of a mistrial was not free from doubt. The trial court could have at least attempted to contact counsel, particularly the defense counsel, to see if they had any suggestions about what to do in this situation. This would have indicated that the decision to terminate the trial was tempered by a consideration of the defendant’s interest in having his trial concluded by the tribunal in which it was initiated. Furthermore, the court failed to consider the less drastic alternatives of sending a court officer with the juror to maintain the sequestration, or lifting the sequestration order. Id., 466 Pa. at 181, 352 A.2d 4.

When a trial court acts too hastily and fails to consider reasonable alternatives to a mistrial, the United States Supreme Court and the Pennsylvania Appellate Courts have reached the same conclusion, that retrial would violate Double Jeopardy Rights. In Commonwealth v. Bradley, 311 Pa.Super. 330, 457 A.2d 911 (1983), we ruled that the trial court’s hasty decision to grant a mistrial based on evidence that a private conversation had taken place between defense counsel and a Commonwealth witness during lunch recess, which interrupted the witness’ direct testimony, constituted an abuse of discretion. The trial court failed to consider the less drastic alternative of allowing defense counsel to cross-examine the witness about the substance of the conversation, and the context in which certain ambiguous statements were made.

In Jorn, supra, 91 S.Ct. at 558, the Supreme Court ruled that the trial judge abused his discretion in discharging the jury when, despite assurances by both the first witness and prosecuting attorney that the five taxpayers involved in the litigation had all been warned of their constitutional rights, the judge refused to permit them to testify. The judge was unwilling to listen to the prosecutor’s explanation, cutting him off in midstream, and acted so abruptly in discharging the jury, that had counsel been disposed to suggest a reasonable alternative, such as a granting a continuance, there would have been no opportunity to do so. The trial court’s failure to scrupulously exercise its discretion when ordering a mistrial, led the Court to conclude that reprosecution would subject the defendant to double jeopardy.

Finally, in Commonwealth v. Hatten, 344 Pa.Super. 362, 496 A.2d 837 (1985), we held that a prosecutor’s disclosure in a joint trial of defendant and her co-defendant, that co-defendant had threatened the complaining witness, did not justify a declaration of a mistrial, when the mistrial was requested only by the co-defendant and the defendant requested a severance of the two cases in order to proceed with the trial. Apart from failing to consider the alternatives to declaring a mistrial, this court noted that disclosure of the defendant’s threat would not have necessarily required reversal on appeal had appellant been convicted. Therefore, it was held that a mistrial was not manifestly necessary, and the trial court should have severed the two cases.

Applying the principles derived from the preceding cases to the facts in this case, we must conclude that the trial judge abused his discretion in declaring a mistrial and discharging the jury. The trial court admits that the defendant “blurted out” that his co-conspirator was found not guilty under the pressure of cross-examination, and therefore, although it was Appellant’s conduct which caused the court’s actions, it was not intentional conduct designed to provoke a mistrial and then a dismissal for reasons of double jeopardy. Cf., Commonwealth v. Wilson, 257 Pa. Super. 329, 390 A.2d 847 (1978).

We believe that our focus on intentional conduct designed to provoke a mistrial is justified by reference to the case law concerning mistrials granted on the motion of the defendant. When a defendant moves for a mistrial the request ordinarily is assumed to remove any barrier to reprosecution, even when the defendant’s motion results from prosecutorial or judicial error. Commonwealth v. Bolden, 472 Pa. 602, 638, 373 A.2d 90, 107 (1977); Commonwealth v. Hunter, 381 Pa.Super. 499, 554 A.2d 112 (1989). However, when the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial, then retrial is barred. Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987). Thus, if the defendant moves for a mistrial because of intentional prosecutorial misconduct designed to provoke a mistrial in order to secure a more favorable opportunity to convict, then retrial is barred. Similarly, if the conduct of a defense witness is intentionally designed to provoke a successful mistrial request by the Commonwealth in order to secure a more favorable outcome, then retrial is not barred.

Here, there is no evidence of intentional conduct. Mr. Balog was under pressure, and blurted out his statement. As a layperson, he did not know the rules of evidence, and did not know he was not allowed to refer to the outcome of different, though related, trial.

Furthermore, we can not agree with the trial court’s holding that Mr. Balog’s statement was certainly prejudicial. (Trial Court Opinion at 5, July 10, 1989). Although, there are no cases discussing the prejudicial effect of a defense witness revealing that a co-conspirator had been acquitted, (all such appeals by the Commonwealth would be barred by double jeopardy), there is some case law discussing the prejudicial effect of revealing that a co-conspirator had been convicted. In Commonwealth v. Howard, 375 Pa.Super. 43, 543 A.2d 1169 (1988), this court held that repeated references by the prosecution during closing argument to the fact that a co-conspirator had been convicted on the same evidence by another jury, did not warrant a new trial. Therefore, since this more egregious and intentional series of references to a co-conspirator’s prior conviction is not per se reversible error, requiring a new trial, it would seem logical that reference to a co-conspirator’s prior acquittal does not per se require a mistrial. As in Hatten, supra, the fact that the defendant’s error would not necessarily warrant reversal upon appeal, is further evidence that the declaration of a mistrial was not manifestly necessary.

Most importantly, however, the trial court’s failure to consider the less drastic alternative of curative instructions shows that the court did not adequately consider the importance to the defendant of being able, once and for all, to have his trial completed by a particular tribunal. Jorn, supra, 400 U.S. at 484, 91 S.Ct. at 557. This court has stated that a court should not presume the likelihood of prejudice and dismiss a prospective juror for cause, when that juror is aware, through pre-trial publicity, of a previous mistrial. Commonwealth v. Hashem, 363 Pa.Super. 111, 525 A.2d 744 (1987). Analogously, a trial court may not presume that a jury will disregard judicial instructions admonishing them to disregard improper evidence of a previous acquittal of a co-conspirator.

Failure to consider alternatives before declaring a mistrial raises doubt as to the existence of manifest necessity to terminate the trial. This doubt must be resolved in favor of Appellant who opposed such a declaration. Therefore we hold that the trial court abused its discretion in declaring a mistrial, and we grant Appellant’s motion to dismiss this case. We need not consider Appellant’s claim that the criminal conspiracy charges be dismissed because of our disposition of this case.

This action is dismissed, as retrial would be violative of Appellant’s rights under the Double Jeopardy Clause of the United States and Pennsylvania Constitutions. Jurisdiction relinquished.

HUDOCK, Judge, files a dissenting opinion.

HUDOCK, Judge,

dissenting.

Respectfully, I must dissent. While I share the majority’s reverence for the Double Jeopardy Clause and fully understand its historical basis, I do not believe that when a defendant himself frustrates the quest for truth, which is what a trial is supposed to be, he should be rewarded by discharge. I believe that appellant’s conduct here, whether designed to do so or not, so skewed the truth seeking process that manifest necessity for a mistrial existed.

In Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) the U.S. Supreme Court held that where defense counsel made improper and prejudicial comments during his opening statement, a mistrial was properly declared and retrial not barred. The Court stated:

Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without resolving the merits of the charges against the accused. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury ... the prosecutor must demonstrate “manifest necessity” for the mistrial declared over the objection of the defendant.

Id. at 505, 98 S.Ct. at 830, 54 L.Ed.2d at 728.

The Court went on to state that the words “manifest necessity” do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge, and that the word “necessity” cannot be interpreted literally. Rather, a “high degree” of necessity is required before a mistrial could be appropriate over defendant’s objection.

The Court further noted that the difficulty which led to the mistrial in that case “falls in an area where the trial judge’s determination is entitled to special respect”. Id. at 510, 98 S.Ct. at 833, 54 L.Ed.2d at 731.

The majority points out that there were other alternatives open to the trial judge, such as a curative instruction. The Supreme Court in Arizona v. Washington, supra, recognized that some trial judges may have proceeded with the trial after giving the jury appropriate cautionary instructions, but the court refused to hold that the availability of such an alternative precluded a mistrial being declared on the grounds of “manifest necessity”. The court reiterated that in a literal sense the mistrial was not “necessary” but that “the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment [of defense counsel]”. Id. at 511, 98 S.Ct. at 833, 54 L.Ed.2d at 732.

In the case sub judice, the entire record must be read to appreciate the seriousness of defendant’s unsolicited comment that “... Charlie was not guilty. Why should I be found guilty?” The trial court’s opinion and the majority opinion here set forth only twenty or so lines of the transcript of trial testimony preceding the challenged remarks. In that context, I agree that the remark is ambiguous, if not meaningless, for the identity of “Charlie” and his connection to the case is not made known. However, after reading the entire record, it becomes abundantly clear who “Charlie” is—he is the conspirator about whom the victim testifies at great length and in graphic detail. She tells how “Charlie” held her while appellant raped and sodomized her and how appellant held her while “Charlie” did the same. No juror could have heard this, and testimony about “Charlie” from other witnesses, without knowing that appellant was advising them of the fact that “Charlie” had been acquitted of these charges. This is especially prejudicial since “Charlie” testified he had consensual sex with the victim on the evening in question. Under these circumstances, I would give great deference to the trial judge who “saw and heard the jurors during their voir dire examination”, who is “most familiar” with the evidence and background of the case”, who has “listened to the tone of the argument” and has “observed the apparent reaction of the jurors”, and who is far more “conversant with the factors relevant to the determination than any reviewing court can possibly be”. Id. at 513-514, 98 S.Ct. at 834-835, 54 L.Ed.2d at 733.

Of course, as Arizona v. Washington instructs, paying great deference to a trial court’s decision to grant a mistrial does not mean that his decision is beyond being questioned. He still must exercise “sound discretion” in declaring a mistrial, recognizing “ ‘the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.’ ” Id. at 514, 98 S.Ct. at 835, 54 L.Ed.2d at 733, quoting, United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 558, 27 L.Ed.2d 543 (1971).

Here the court considered arguments from both counsel before making its decision. In its opinion in support of the order denying defendant’s motion to dismiss, the court set forth the reasons for its decision. It believed that the prosecutor had not provoked or in any way suggested the making of the statement by defendant, and that the statement was highly prejudicial to the Commonwealth. The court further noted that “even with curative instructions from the court, the fact than an alleged accomplice/co-conspirator was found not guilty could not be erased from the jurors’ minds”. Thus it is clear that the court did consider and reject the only alternative to a mistrial under the facts presented, a curative instruction. While the court did not take an evening to ponder and research the matter as the trial court did in Arizona v. Washington, supra, it did not need that amount of time to consider the only realistic option available.

The majority cites Commonwealth v. Howard, 375 Pa.Super. 43, 543 A.2d 1169 (1988) for the proposition that reference by the prosecution to the prior conviction of one of four co-conspirators did not warrant a new trial. From that the majority reasons that reference to a co-conspirator’s prior acquittal, therefore, does not per se require a mistrial. I do not believe that conclusion is warranted. The facts of Commonwealth v. Howard were that defense counsel injected the fact that the co-conspirator had been convicted, and that, he having thus opened the door, the prosecutor was free to refer to that fact also. The case does not stand for the proposition that a prosecutor may under all circumstances refer to the conviction of a co-conspirator without prejudicing the defendant at trial.

I would hold that since appellant himself poisoned the waters of truth, he should not benefit from his wrongdoing.

Neither party has a right to have his case decided by a jury which may be tainted by bias; [footnote omitted] in these circumstances, “the public’s interest in fair trials designed to end in just judgments” [citation omitted] must prevail over the defendant’s “valued right” to have his trial concluded before the first jury impaneled. Arizona v. Washington, 434 U.S. at 516, 98 S.Ct. at 835-836, 54 L.Ed.2d. at 734-735.

The trial court here properly declared a mistrial for reasons of manifest necessity, and, accordingly, I dissent.

      . In Howard, two members of the panel concluded that the prosecutor’s invitation to the jury to find the defendant guilty on the same evidence which another jury found sufficient to convict a co-conspirator was improper, even though the conviction was first brought out by the defense. Howard, supra, 375 Pa.Super. at 63, 543 A.2d 1169, (Kelly, J., concurring), and 375 Pa.Super. at 65, 543 A.2d 1169, (Wieand, J., dissenting).


author:
      DEL SOLE, Judge:
      CAVANAUGH, Judge,

text:
    576 A.2d 1100
    Joyce BEEGLE, Appellee, v. Frank RASLER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 21, 1990.
    Filed June 19, 1990.

      Frederick B. Gieg, Jr., Altoona, for appellant.
    Benjamin H. Claar, Jr., Hollidaysburg, for appellee.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge:

Appellant, Frank Rassler, appeals a support order entered as a result of an action filed by, Appellee, Joyce Beegle on behalf of her son. Because of errors in the proceedings before the trial court and the court’s analysis of the matter before it, we reverse and remand the case to the trial court for further proceedings.

We find it necessary to begin by commenting on the procedural path this case has taken. The matter was commenced as a support action. Appellant initially disputed paternity, but, after blood testing was completed, paternity was acknowledged. In Appellee’s Statement of . the Facts which appears in her Brief, she recounts that the next event to take place was a hearing held on May 12,1989 before a hearing officer. No transcript or notations concerning this hearing appear in the record or on the docketing statement. In fact, there is nothing in the record which would confirm that such a hearing was held. The docket only makes reference to an order dated June 29,1989. That order indicates that a hearing was scheduled for June 29, 1989 relative to Appellee’s Complaint for Support. The court fixed an amount of support but first gave some indication of the events which transpired that day. It stated that its order was entered “after hearing argument on the matter on today’s date in which the Petitioner has appeared with legal counsel, and the Defendant has appeared through his legal counsel, but has been absent himself from the Courtroom, which this Court does not hold against the Respondent, based on the information presented.” Thus, it appears that despite the fact that a hearing was scheduled one was not held; only argument was heard. Within 30 days of the court’s June 29th order, Appellant filed his appeal. Also filed by Appellant was a Petition for Evidentiary Hearing. The Petition requests that a hearing be held “not for purposes of setting aside the Order” but “only for purposes of establishing a record so that an Appellate Court will have all the facts under oath with regard to the circumstances in this case.” This unusual request was granted by the court and such a hearing was held, but the trial court properly questioned its authority to take such action. At the start of the hearing the court remarked:

This Court in chambers met with counsel earlier today to ask if prior to this proceeding what authority this Evidentiary hearing was to be conducted. There is no authority cited to this Court, however, it has been the standard custom and practice in this jurisdiction to allow an Evidentiary Hearing after an Order has been entered. This Court has serious question about that procedure, and if this case continues through Appeal, well I guess it is on Appeal, this Court would ask the Superior Court to Direct comments toward the procedure employed herein.

N.T. August 22, 1989 at 5-6.

The trial court had just reason to doubt the propriety of conducting an evidentiary hearing after entry of the final order and subsequent to the filing of an appeal. In requesting the evidentiary hearing Appellant was not seeking to have the court reconsider its order; Appellant only wanted to have a record which the Superior Court could review. This procedure is improper and if it is, as the trial court stated, the standard custom in Blair County to conduct such hearings, this practice must change. Rule 1701(a) of the Appellate Rules directs that “as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.” Pa.R. A.P. 1701(a), 42 Pa.C.S.A. The trial court had no authority to conduct an evidentiary hearing, without expressly granting reconsideration, once the appeal had been filed. The purpose of a record is to enable the appellate court to review what transpired at the trial level which caused the trial court to enter its order. This record cannot be compiled after the fact.

The Rules of Civil Procedure specify the procedure to be utilized in support matters. Rule 1910.10 refers to two alternative hearing procedures, those described in Pa.R.C.P. 1910.11 and 1910.12.. Neither procedure was followed in the instant case. Because it is necessary to remand this matter to the trial court, we direct that the court employ the appropriate hearing procedure detailed in the Rules of Civil Procedure.

The remand is necessary based upon the court’s use of an earning potential figure to represent Appellant’s income and upon Appellee’s failure to specifically identify those monthly expenses which were incurred by the child. The trial court’s utilization of these figures to calculate its award was error and upon remand must be corrected.

We will first address the issue of Appellant’s income. The parties do not dispute some of the basic facts of this case.

The parties met and their child was conceived while they were working at Mercy Hospital in Altoona, Pennsylvania. Appellant, Rasler was employed as an emergency room doctor and Appellee Beegle was employed full-time as a registered nurse. The parties had not married but after the birth of the child Dr. Rasler moved to Atlanta, Georgia and Ms. Beegle married another individual. Dr. Rasler was again employed as an emergency room physician and Ms. Beegle continued her employment with Mercy Hospital but now only on a part-time basis. In April of 1989 Dr. Rasler, along with other doctors in his group, had his employment terminated. He then commenced part-time employment with various other hospitals and medical centers as an emergency room physician earning less than he previously had, and enrolled in a near-by university for a further degree.

In analyzing this set of facts the trial court concluded that it should look to Dr. Rasler’s earning capacity not his actual earnings. We conclude that this determination was in error. It is true that as a general rule the earning capacity, not the actual earnings, is the determinative factor in ascertaining the ability to pay support. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). This rule, however, is not without exceptions, such as those situations where the income is reduced involuntarily through illness, layoff or some other factor over which the parent has no control. Id. Further the courts have recognized a parent’s legitimate desire to forgo a lucrative present employment situation in the hope of establishing a rewarding future career. In Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Super. 390, 358 A.2d 102 (1976) this court affirmed the decision of the trial court which stated in part:

It is to be hoped that the latent ‘earning power’ to be found in every young lawyer will emerge with the passage of time and will enure to the benefit of Respondent’s minor children as well as to himself. That earning power should not be equated to the higher earnings which he might for the time being command as a salaried employee at the expense of abandonment of his professional career. We do not think that it is such a concept of earning power which we are to look for when we look beyond actual earnings in our search for ability to pay.

358 A.2d at 104-105.

In Roberts v. Bockin, 315 Pa.Super. 52, 461 A.2d 630 (1983), the court looked to the mother’s actual earnings, not her income potential as demonstrated in the past, to measure her ability to support her child. The court recognized the courts’ suspicion regarding any sudden income reductions since it has been held that a parent may not intentionally reduce his or her earnings and then use the reduction to obtain a decree in the amount of child support. In reaching its decision the court cited a passage from Weiser v. Weiser, 238 Pa.Super. 488, 492, 362 A.2d 287, 288-289 (1976) which it found applicable to both parents who have the equal responsibility to support their child.

[W]e are not constrained to say that a man once he has established a certain income level for himself and his family in the employ of another cannot decide to go into business for himself even though it results in a decrease of his present earnings. A man should have freedom of choice to be an employee of another or to establish his own business even though such change may result in present financial sacrifice with the hope of future increased income,

Roberts v. Bockin, supra, 461 A.2d at 632.

In the present case, the trial court failed to recognize that Dr. Rasler did not voluntarily quit his full time position with the Atlanta hospital; he was dismissed along with other members of the hospital staff. Contrast: Akers v. Akers, supra. Dr. Rasler cannot be faulted for securing part-time employment at various other hospitals, still earning a substantial income, while deciding to pursue a further education which may result in a future of increased income. Contrary to Ms. Beegle suggestion, Dr. Rasler cannot be expected to relocate anywhere in the country to secure a position which pays the equivalent of that which he earned in his full-time position in Atlanta. Since there is no indication or allegation that Dr. Rasler deliberately left his job in an effort to reduce his income, we conclude that the court erred in refusing to look to his actual earnings to measure his ability to pay support.

We also find that the court’s decision in this matter was based on an incomplete record of the child’s reasonable needs. Although Ms. Beegle submitted to the court an itemized expense sheet, no separate calculations were made to identify the expenses incurred by the child. Ms. Beegle listed for the court the rent utilities, insurance, automobile and clothing costs for her entire household of three. She then divided this number by one-third to determine the expenses incurred each month by the child. We believe more specific calculations must be made. The child’s clothing costs may not amount to one-third of the family’s total cost. Likewise the cost of housing for a family of three may not be one-third greater than housing for a two person household. Upon remand it is incumbent upon Ms. Beegle to specifically identify the child’s monthly expenses.

Order reversed case remanded to the trial court for proceedings consistent with this opinion.

CAVANAUGH, J., files a concurring and dissenting opinion.

CAVANAUGH, Judge,

concurring and dissenting:

I agree with the majority that remand is required for calculation of the reasonable needs of the parties’ child. The record as developed in the lower court does not adequately demonstrate the expenses necessary to support a two-year old living with his mother and step-father.

I disagree with the majority’s conclusion that appellant’s current earnings rather than his earning capacity should form the basis of his ability to contribute towards the support of his son. The majority relies upon appellant’s pursuing further education for its finding that part-time employment is justified. Appellant has failed to show how his financial status as a medical doctor would be enhanced through his attainment of an academic degree in public health. Although the pursuit of this degree may be intellectually stimulating and the practice of medicine in the area of public health socially admirable, appellant has offered no evidence to support a claim that his current reduction in income is justified on the basis of a potential increase in income.

As noted by the majority, the general rule is that earning capacity, and not actual earnings, determines ability to pay support. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). This case presents no exception, despite appellant’s termination from his initial employment in Atlanta, since he explains his current part-time status in multiple hospitals as due to his furtherance of his education. The missing link, however, is that appellant has presented no evidence that would support the majority’s counter-intuitive argument that a career in public health is likely to be more financially rewarding than one as an emergency room doctor. For this reason I dissent from that part of the majority opinion which requires the trial court to consider actual earnings rather than earning capacity.


text:
    576 A.2d 1104
    Emily N. BAUM, Appellee, v. Donald E. BAUM, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed June 27, 1990.
    Allen H. Smith, York, for appellant.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order holding appellant in civil contempt, and ordering him to pay the sum of $40.74 to appellee. Appellant and appellee are husband and wife. In response to a petition filed by appellee, the trial court entered an order on September 7, 1989 directing, inter alia, that appellant and appellee have no direct or indirect contact with one another, except through counsel. Testimony in the case indicated that on September 22, 1989, appellant went to appellee’s residence, went underneath appellee’s 1989 Chrysler LeBaron, and cut a radiator hose. While the testimony presented was not entirely free of inconsistencies, the trial court found that appellant’s testimony was incredible and appellee’s testimony was credible, and held that appellant had indirectly contacted appellee, in violation of the court order. Based on this finding, the court held appellant to be in civil contempt and ordered him to pay to appellee $40.74, the amount of repairs to appellee’s car.

Appellant presents one issue for our consideration: whether the evidence presented is sufficient to sustain a finding of civil contempt? In reviewing a finding of civil contempt we begin with the premise that “[e]ach court is the exclusive judge of contempts against its process, and on appeal its action will be reversed only when a plain abuse of discretion occurs.” Fatemi v. Fatemi, 371 Pa.Super. 101, 113, 537 A.2d 840, 846 (1988). The trial court’s finding of contempt was based on its factual determination that appellee’s witnesses were more credible than those who testified for appellant. This factual finding is supported by evidence of record, and we will not disturb it. Delahanty v. First Pa. Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). As for the court’s decision to hold appellant in civil contempt, we find no abuse of discretion.

Order affirmed.

      . In his brief, appellant presents a second issue, concerning whether the trial court followed the five-step procedure for civil contempt proceedings set forth in Whitt v. Philadelphia Housing Auth., 325 Pa.Super. 135, 472 A.2d 684 (1984). As this issue was not raised before the trial court, and is not set forth in appellant’s Pa.R.A.P. 1925(b) statement, it is waived. See Travitzky v. Travitzky, 369 Pa.Super. 65, 534 A.2d 1081 (1987); Fenstamaker v. Fenstamaker, 337 Pa.Super. 410, 487 A.2d 11 (1985). Appellant’s allegation, in his Pa.R.A.P. 1925(b) statement, that the verdict was “contrary to ... the law[,]" is not sufficiently specific to preserve this complaint of procedural error. Cf. Ryan v. Johnson, 522 Pa. 555, 564 A.2d 1237 (1989) (vague Pa.R.A.P. 1925(b) statement did not waive objections where appellant did not have information which would have allowed her to be more specific). In the case sub judice, appellant did not lack information which would have allowed him to assert this claimed error.