author: TAMILIA, Judge:

text:
    614 A.2d 1189
    Darlene SEMAN v. Martin SEMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 20, 1992.
    Filed Sept. 24, 1992.

      Charles S. Cusick, Jr., New Castle, for appellant.
    George P. Micacchione, New Castle, for appellee.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.

      . Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

   TAMILIA, Judge:

This is an appeal from the Order of February 12, 1991 directing defendant/appellant Martin Seman to pay the monthly sums of $520 in spousal support for plaintiff/appellee Darlene Seman and $300 in child support for the parties’ minor child, Chad, born August 8, 1974. The Order was made retroactive to April 24, 1990, the date on which appellee filed her complaint in support. The Order credited appellant for $4,000 in support payments made directly to appellee. The Order further directed appellant shall be responsible for maintaining his employer’s hospitalization and medical insurance coverage for appellee and Chad, as well as one-half of all medical expenses not covered by insurance. Finally, the Order required the parties to inform the Domestic Relations Office of any change in their address or employment within seven days of such change.

Appellant now claims the trial court failed to determine correctly his spousal and child support obligation in accord with the applicable statutes, guidelines and case law. In essence, appellant argues the trial court erred in not “deviat[ing] significantly from the [support] guidelines” (Brief of Appellant at 11). It is well settled this Court’s standard of review for support awards is a narrow one based upon abuse of discretion. Marshall v. Marshall, 404 Pa.Super. 628, 591 A.2d 1060 (1991). Abuse of discretion in these matters requires more than mere error of judgment, rather it requires an overriding or misapplication of the law or a manifestly unreasonable exercise of judgment. Caplan v. Caplan, 400 Pa.Super. 352, 583 A.2d 823 (1990).

The area of support has been clouded needlessly over recent years through varied attempts to reconcile the Melzer support formula and the mandatory uniform support guidelines. Despite sporadic contentions that the Melzer formula and the support guidelines are inconsistent with each other, or even that the support guidelines, by their very nature, supersede the Melzer formula, in an attempt to bridge the morass of often conflicting viewpoints, this Court en banc recently issued what it hopes will be the dispositive analysis of this issue. Therein, following a review of the line of cases expounding various views, a majority of this Court found “the only tenable approach the courts may take” is a holding “that if either Melzer or the guidelines are properly applied and they either have been harmonized or application of one or the other has been waived, the court is not guilty of an abuse of discretion.” Ball v. Minnick, 414 Pa.Super. 242, 258, 606 A.2d 1181, 1189 (1992) (citations omitted).

Appellant contends the court erred in not deviating from the guidelines and individualizing the support award to the specific conditions of the parties. While the Ball Court stated the guidelines “provide a starting point from which the court can, if necessary, individualize the support Order,” id., 414 Pa.Super. at 256, 606 A.2d 1181, the Court hastened to add that the rebuttable presumption that the amount of the award which would result from the guideline is the correct amount of support to be awarded is only rebuttable “by a written finding or specific finding on the record that the guidelines would be unjust or inappropriate----” Id., 414 Pa.Super. at 258, 606 A.2d 1181. However, no such finding exists in this case and, in fact, Judge Ralph D. Pratt, in his thorough and excellent Opinion, applies both the Melzer formula and the uniform guidelines in discussing how the court arrived at an appropriate award. Given the clear guidance of Ball, supra, and its concomitant emphasis on the broad use of judicial discretion in support cases, we are unable to discern any abuse of discretion or any need for deviation from the guidelines, and therefore this claim is without merit.

Appellant also claims the court abused its discretion in ordering appellant to be responsible for one-half of those medical expenses for appellee or Chad not covered by insurance without explicitly making appellee responsible for the other half. Appellant argues this requirement, provided for in 23 Pa.C.S.A. § 4324, is allowable only for “reasonable and necessary” health care expenses. The first aspect of appellant’s claim is without merit, as appellee correctly points out, because as long as appellant meets his requirements, he will suffer no economic harm or injustice, and no other explicit language was necessary in the Order, as no one but appellee could be responsible for the other half of noncovered medical expenses.

As to the claim concerning “reasonable and necessary” expenses, we feel certain this language is implicit in the trial court’s Order, but out of an abundance of caution, we now make it explicit, modifying the February 12, 1991 Order only to reflect that appellant is responsible for one-half of all reasonable and necessary medical expenses for appellee and Chad not covered by insurance.

Finally, appellant argues the trial court erred in not making the language of its change of address or employment requirement more specific. Appellant claims a change of jobs by appellee within the confines of her current employment would not be reportable under the Order. We disagree. The Order clearly requires both parties to notify the Domestic Relations Office of any change of employment. A new job under a present employer is reportable to the same extent as a new job under a new employer, and both parties are now on notice to that effect. Appellant also claims a change of address by Chad, sixteen years old at the time of the Order, is required to be reported under Pa.R.C.P. 1910.17(b), but was not made so by the Order. Again, we feel this is contemplated by the court in its Order, but again we make a minor modification to reflect the court’s intent.

Order affirmed as modified.

Jurisdiction relinquished.

HUDOCK, J., concurs in the result.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    614 A.2d 1191
    BOYD & MAHONEY, a Pennsylvania General Partnership t/d/b/a U.D. Properties v. CHEVRON U.S.A. and Cumberland Farms, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued April 7, 1992.
    Filed Sept. 24, 1992.

      Thomas L. Wenger, Harrisburg, for appellant.
    R. Stephen Shibla, Harrisburg, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   BECK, Judge:

We address, inter alia, under what circumstances a court may order specific performance of a right of refusal of a piece of property which is part of a multi-state, multi-asset transaction.

Appellants Chevron, U.S.A., Inc. (Chevron) and Cumberland Farms, Inc. (Cumberland Farms), defendants below, appeal the order of the trial court granting specific performance and directing appellants to transfer title to the realty to plaintiffappellee Boyd & Mahoney. Boyd & Mahoney claimed a right of first refusal. Appellants also object to the purchase price the trial court set for Boyd & Mahoney to pay in exercise of their right of first refusal. In addition, appellants challenge the court’s calculation of the profits and rent earned from the property for the period Boyd & Mahoney was wrongfully deprived of ownership. For the reasons set forth below, we affirm the orders of the trial court.

The facts of this case are as follows. Boyd & Mahoney is a real estate leasing firm. Appellants Chevron and Cumberland Farms are in the business of, inter alia, selling gasoline products. In 1981, Boyd & Mahoney’s predecessor in interest conveyed the property at 4299 Union Deposit Road, Harrisburg, Pennsylvania, to appellant Chevron. The conveyance was made subject to the following right of first refusal:

EXCEPTING AND RESERVING unto the Grantor, its successors and assigns: (a) The first right and opportunity to repurchase the premises hereby conveyed. Grantee or its successors or assigns shall not sell or convey the premises hereby conveyed without first offering to Grantor, its successors or assigns, the first right and opportunity to purchase the said premises from Grantor herein, its successors or assigns, within sixty (60) days of written notification thereof, received by Grantor from Grantee, upon the same terms and conditions and at a purchase price equal to or exceeding those contained in any bona fide offer to purchase the premises as may be received by Grantee, its successors or assigns.

In 1986, in a multi-state, multi-asset transaction, Chevron sold the subject property, along with other parcels, business equipment, and inventory, to appellant Cumberland Farms. Both Chevron and Cumberland Farms had notice of Boyd & Mahoney’s right of first refusal. In the contract between the appellants, Cumberland Farms agreed that in the event the holder of a right of first refusal exercised the right, Chevron would remit to Cumberland Farms the amount of payment received therefrom. However, Chevron did not notify Boyd & Mahoney that it had received an offer on the property, nor did it give Boyd & Mahoney the opportunity to purchase the property itself.

About a year after the transfer to Cumberland Farms, an attorney for Cumberland Farms contacted Boyd & Mahoney, seeking a release of its right of first refusal. Boyd & Mahoney notified appellants that it was opting to exercise its right of first refusal. Appellants refused to convey the property, and Boyd & Mahoney filed the instant complaint seeking specific performance of the right of first refusal and also seeking other equitable relief. After hearing, the court entered orders granting specific performance to Boyd & Mahoney, and awarding them certain rental income and profits. This timely appeal followed.

We note that our review of a decree in equity is limited to a determination of whether the chancellor committed an error of law or abuse of discretion. Absent a mistake of law or abuse of discretion, such as where the chancellor’s finding is “unsupported by the evidence or demonstrably capricious,” the decree will not be disturbed. Joseph D. Shein, P.C. v. Myers, 394 Pa.Super. 549, 553, 576 A.2d 985, 987 (1990).

On appeal, appellants claim that the trial court erred in finding that Boyd & Mahoney’s right of first refusal was activated by Cumberland’s offer to buy the subject property. Cumberland states that it purchased the property as part of a package deal with Chevron. The transaction included “tracts of real property throughout the United States with terminals, warehouses and offices; specified motor fuel retail outlets; the inventories and accounts receivable therewith; and software and vehicles, among other assets,” for a total purchase price of $310,207,000.

Appellants contend that a condition precedent of appellee’s right of first refusal is that the offer to purchase must be specifically limited to the single property to which the right attaches, ie., 4299 Union Deposit Road. Because Cumberland Farms did not purchase the property by itself, but rather as part of a multi-state, multi-asset transaction, appellants claim that the offer to purchase did not trigger the right of first refusal.

We disagree. Common sense and the applicable case law of this jurisdiction require us to hold that a right of first refusal as to the conveyance of a property cannot be defeated by including that property in a multi-property or multi-asset transaction. L.E. Wallach, Inc. v. Toll, 381 Pa. 423, 113 A.2d 258 (1955); Atlantic Refining Co. v. Wyoming National Bank of Wilkes-Barre, 356 Pa. 226, 51 A.2d 719 (1947). The right of first refusal is a valuable property right. The importance of the right to its holder is that the holder may assert ownership of the property provided that the owner meets the conditions of the right. The appellants’ argument that the right can be nullified simply by packaging the property for sale with another asset not so encumbered has no merit. Appellants’ logic would deprive the holder of the right the benefit of his or her bargain.

It is well-settled that contractual rights of first refusal to purchase realty may be enforced by a decree of specific performance. Warden v. Taylor, 460 Pa. 577, 333 A.2d 922 (1975); Gateway Trading Co., Inc. v. Children’s Hospital of Pittsburgh, 438 Pa. 329, 336, 265 A.2d 115, 119 (1970); Driebe v. Fort Penn Realty Co., 331 Pa. 314, 200 A. 62 (1938). To prevail on an action for specific performance the holder has the burden of showing that there is a valid agreement; that the agreement has been violated; and that the holder does not have adequate remedy at law. Messina v. Silberstein, 364 Pa.Super. 586, 528 A.2d 959 (1987).

The agreement in the instant case is a valid agreement. It is complete, certain and clear. It is also apparent that appellant Chevron violated the agreement by not informing Boyd & Mahoney of the sale and not permitting them to exercise their right of first refusal. Also, Boyd & Mahoney did not have an adequate remedy at law. The trial court found that the property was a “key” parcel for Boyd & Mahoney, being situated at the entrance to Boyd & Mahoney’s commercial development properties. Ownership of the property would permit Boyd & Mahoney to control the architectural design and future development of the area. Therefore, the trial court did not commit an error of law or abuse of discretion in ordering specific performance.

Appellants suggest that the proper remedy in this case is not specific performance but a reconveyance of the realty by Cumberland Farms to Chevron, with an injunction against transferring the property except in accordance with Boyd & Mahoney’s right of first refusal. We disagree. A remedy of this nature has been specifically rejected by our Supreme Court under factually similar circumstances. In Warden v. Taylor, supra, the trial court refused to grant specific performance, and instead imposed a constructive trust on the property that would prevent it from being conveyed to anyone other than the plaintiffs. The Supreme Court reversed the order of the trial court and ordered immediate conveyance of the property to plaintiffs, stating that:

The only reason given by the court in support of its refusal to grant a decree of specific performance or urged by appellees in support of affirmance is that the relief granted is ‘molded to the equities of the transaction’ and adequately protected appellant’s interest.
This ground is an insufficient reason to deny specific performance to one who is otherwise entitled to it ... Under the court’s findings and conclusions, appellant is entitled to more than ‘protection of his interests’; having established to the satisfaction of the trial court that Taylor breached the contract by conveying the realty without first offering it to him, appellant is entitled to a decree compelling Taylor to perform his promise.

Warden v. Taylor, 460 Pa. at 578-80, 333 A.2d at 923-24. Boyd & Mahoney here is likewise entitled.

The trial court established the price of the right of first refusal at $158,000. Appellants claim this was error. The court derived the figure from the purchase price and estimate of fair market value reported by Cumberland Farms on the Realty Transfer Tax Affidavit of Value filed by the corporation after the transaction in connection with Cumberland Farm’s payment of realty transfer tax. Appellants claim that this figure was set by Cumberland Farms solely for “internal and tax reporting purposes”, and argue that the discretionary allocation of a portion of a total purchase price to one of the parcels in a multi-property transaction does not determine the price at which a holder of a right of first refusal may exercise its option. Appellants ask that we remand this matter to the trial court for a hearing on the fair market value of the property. We decline to do so.

We are troubled by appellants’ assertion that these representations, made by Cumberland Farms to the tax authorities for purposes of determining the taxes owed by the corporation to the Commonwealth, should not in fact be taken as true. On the Affidavit of Value, Cumberland Farms reported the “actual cash consideration” paid for, and “fair market value” of, the property at 4299 Union Deposit Road as $158,000. These statements were made by an officer of the corporation and were certified by that officer under penalty of law to be true and correct. Appellants do not claim that Cumberland Farms erred in these figures, which error it discovered and corrected later, such that its prior filing of this form should be disregarded. In their Answer to the Complaint, appellants admitted the averment of Boyd & Mahoney that the allocation of $158,000 to the purchase of the subject property “represented a fair and accurate determination of the proportionate value attributable to the parcel here involved within the context of the total transaction and the total purchase price.”

At trial, William Gordon, president of Cumberland Farms’ realty division, affirmed that the $158,000 figure in fact represented the corporation’s “best allocation of the actual purchase price to the parcel involved.” Based on all of the evidence, we find that the trial court did not err in finding that the value of the right of first refusal was $158,000.

Appellants also challenge several aspects of the trial court’s determination of damages. After finding that appellants had wrongfully deprived Boyd & Mahoney of ownership and possession of the subject premises, the trial court ordered Cumberland Farms to provide an accounting of profits earned from use of the property during the period of its wrongful possession. After reviewing the statements provided by Cumberland Farms, Boyd & Mahoney’s objections thereto, and hearing testimony by both sides on the matter, the trial court entered judgment against appellants and in favor of Boyd & Mahoney in the amount of $501,872.00, plus an amount of $5,019.00 per month representing monthly rental and gasoline profits until delivery of the subject property to Boyd & Mahoney, with interest to accrue on all payments not timely made. In arriving at the figure of $501,872.00, the trial court found that Cumberland Farms, Inc. had earned rental income from the property, plus interest, in the amount of $346,138.00, and profit from the sale of gasoline, plus interest, in the amount of $155,734.00.

Appellants first claim that the trial court erred in using as the standard of damages to be awarded the amount by which appellant Cumberland Farms profited by its possession of the property, rather than the amount by which Boyd & Mahoney was harmed. Appellants contend that Boyd & Mahoney should have been compensated (if at all) only for the profit Boyd & Mahoney lost as a result of being deprived of ownership, which appellants claim is equal to the rental income that Boyd & Mahoney, a real estate leasing firm, would have derived from leasing the property to a third party. Appellants argue that Boyd & Mahoney could not have both rented the property to a third person and operated a gas station on it at the same time; therefore, using as the standard of damages Boyd & Mahoney’s lost profits, Boyd & Mahoney is entitled only to an award of the rental value of the property.

We find that the trial court committed no error in using the benefit accruing to Cumberland Farms as the measure of damages in its award. We note again that our scope of review of a decree in equity is limited. Joseph D. Shein, P.C., supra. “A Chancellor has the power to shape relief according to the equities of a case under a plaintiffs prayer for general relief.” Easton Theatres v. Wells Fargo, 265 Pa.Super. 334, 350, 401 A.2d 1333, 1342 (1979), appeal dismissed, 498 Pa. 557, 449 A.2d 1372 (1982). It is true that the trial court here had the choice of fashioning a remedy based on the lost income suffered by Boyd & Mahoney as a result of appellants’ breach. However, the court in this instance elected not to do so, and under the applicable case law we cannot conclude that the trial court erred. The trial court chose to return to Boyd & Mahoney the amount by which appellant Cumberland Farms had been unjustly enriched through its wrongful possession. Case law in Pennsylvania has long recognized equitable accounting as an appropriate remedy for wrongful possession of property. See Frankel v. Northeast Land Co., 391 Pa.Super. 226, 570 A.2d 1065 (1990) (“The general rule is that a purchaser with notice of a prior equity in the same property must not only release legal title but must also account for rents and profits,” citing Easton Theatres v. Wells Fargo, supra, 265 Pa.Super. at 351, 401 A.2d at 1342); Leafgreen v. Drake’s Exrs., 300 Pa. 369, 373, 150 A. 656, 657 (1930) (vendor wrongfully withholding transfer of title to a purchaser “is regarded as trustee of the land for the benefit of the purchaser, and liable to account to him for rents and profits, or for the value of the use and occupation”). Accord, Howell’s Estate, 224 Pa. 415, 73 A. 445 (1909); Candy v. Kean, 159 Pa.Super. 596, 49 A.2d 524 (1946). Since the trial court did not abuse its discretion or commit an error of law in choosing an equitable accounting as the basis for its award of damages, we will not disturb the order of the trial court on that ground.

Appellants also claim that the trial court erred in its calculation of the amount of profit accruing to Cumberland Farms from the use of the premises. Again we disagree. The trial court found that Cumberland Farms benefitted from its occupancy of the premises, first, in the amount of the rent it would have had to pay to a third party for use of the premises had it not owned the property. The court estimated this to be $5,319.00 per month, based on the testimony of Boyd & Mahoney’s accounting expert that Cumberland Farms’ General Ledger and other internal accounting records showed this amount logged as rental income attributable to the subject premises, and the court’s own review of these documents. In addition, the court found that Cumberland Farms made a profit on the wholesale sale of gasoline products to the gas station on the premises in the total amount of $137,091.99. The court took this figure directly from a document produced by Cumberland Farms. The document was offered by Boyd & Mahoney as a discovery admission in the July 1, 1991 hearing on damages, and was admitted without objection by appellants. (R.R. 120a). Appellants first claim that it was error for the trial court to rely on Cumberland Farms’ General Ledger and other internal accounting documents, as opposed to the “Income Statement” prepared by Cumberland Farms for submission to the court in this litigation. This document was an edited version of Cumberland Farms’ financial documents that eliminated the rental income item, and showed an overall loss in the gas station’s operation on the premises.

Essentially, appellants are asking us to substitute our findings of fact for those of the trial court, which we cannot do. In reviewing an award of damages, the appellate court will defer to decisions of the trier of fact, who is in a superior position to appraise and weigh the evidence; we will reverse the trial court only where it clearly appears that the amount awarded resulted from “partiality, caprice, prejudice, corruption or some other improper influence.” Delahanty v. First Pennsylvania Bank, N.A., supra, 318 Pa.Super. at 117, 464 A.2d at 1257. The trial court’s findings here are amply supported by evidence of record and -will not be reversed on appeal.

Appellants also claim that the trial court erred in finding the rental income to be part of the “profit” accruing to Cumberland Farms by virtue of its occupancy of Boyd & Mahoney’s property, as this item represents an intra-company charge to the station occupying the premises for purposes of determining that station’s profitability compared to others within the company, and does not reflect any actual payment from a third party to Cumberland. This fact does not affect the propriety of the trial court’s inclusion of this item in its award of damages. An award of damages based on an equitable accounting seeks to turn over to the party wrongfully deprived of possession all benefits accruing to defendant by reason of its wrongful possession. See Leafgreen v. Drake’s Exrs., supra, (defendant must account for the “value of the use and occupation”). By owning the property itself, Cumberland Farms saved itself the amount of rent it would have had to pay to a third party. It was therefore benefitted in that amount as surely as though it had received a cash payment therefor.

Finally, appellants claim that the trial court erred in entering judgment against appellant Chevron on an equitable accounting of the profits accruing to appellant Cumberland Farms, when only Cumberland Farms, not Chevron, was in possession of the premises. We find this issue waived for failure to raise it in appellants’ post-trial motion, and will therefore not consider it here. Red Oak Co. v. Kempton, 298 Pa.Super. 516, 445 A.2d 108 (1982).

Orders affirmed.

      . Appellants cite to L.E. Wallach in support of their assertion that the court erred in ordering the property conveyed to appellee at the price of $158,000.00. Appellant’s reliance on Wallach is misplaced. In L.E. Wallach, the right of first refusal offered to the optionee was on an offer that was ultimately not accepted by the optionor; and in the package-deal offer that was ultimately accepted, there was no allocation of price, to the individual properly at issue. Therefore, the court had no basis on which to allocate a price to the property for the purpose of ordering specific performance of the contract, and properly refused to do so. L.E. Wallach, supra, 381 Pa. at 423, 113 A.2d at 258. The situation here, where one of the parties to the transaction did allocate a specific price to the property in question, is very different.

      . As one option, which the trial court did not take, the case law would have permitted the trial court to limit damages to Boyd & Mahoney’s loss of profits. See, e.g., AM/PM Franchise v. Atlantic Richfield Co., 373 Pa.Super. 572, 575, 542 A.2d 90, 92 (1988), aff'd in relevant part, rev’d in part, 526 Pa. 110, 584 A.2d 915 (1989) ("Recovery for loss of profits under Pennsylvania law is allowed where such loss was caused by a plaintiff’s inability to use property damaged, destroyed or withheld by defendant’s wrongful conduct”); Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 101, 464 A.2d 1243, 1248 (1983) (plaintiff's lost profits, proximately caused by defendant’s wrongdoing, are recoverable both in contract and in tort); Kosco v. Hachmeister, Inc., 396 Pa. 288; 152 A.2d 673 (1959) (plaintiff restaurant owner may recover his lost profits as well as value of the building destroyed in landslide caused by defendant).


author: CIRILLO, Judge. OLSZEWSKI, Judge,

text:
    614 A.2d 1198
    COMMONWEALTH of Pennsylvania v. Robert HAWKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1992.
    Filed Sept. 24, 1992.

      Owen Larrabee, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, Presiding Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   CIRILLO, Judge.

Robert Hawkins appeals from a judgment of sentence entered on September 14, 1990 in the Philadelphia County Court of Common Pleas. We reverse and remand for a new trial.

Hawkins was charged with rape, involuntary deviate sexual intercourse and related charges as a result of his encounter with the victim, W.G., on July 6, 1989. On April 3, 1990, a jury convicted Hawkins of attempted involuntary deviate sexual intercourse. See 18 Pa.C.S. §§ 3101, 3123, 901. Hawkins was acquitted of the rape charge. Post-verdict motions were filed and denied and Hawkins was sentenced to five to ten years imprisonment. This timely appeal followed. On appeal, Hawkins raises the following issues:

1. Was not the evidence insufficient as a matter of law to establish that appellant was guilty of attempted involuntary deviate sexual intercourse where the appellant kissed the complainant’s vagina, but did not penetrate, inasmuch as there was insufficient evidence of the intent to perform anything more than an indecent assault?
2. Did not the trial court err, violating appellant’s state and federal constitutional right to due process, when he refused to instruct the jury on the lesser included offense of indecent assault, but only upon the greater offense of attempted involuntary deviate sexual intercourse, inasmuch as the evidence would clearly support such a conviction for the lesser offense?
3. Did not the trial court err by refusing to give any instruction at all as to the negative effect of prior inconsistent statements on witness credibility?

Initially, Hawkins argues that the evidence was insufficient to prove the crime of attempted involuntary deviate sexual intercourse beyond a reasonable doubt. See 18 Pa.C.S. §§ 901, 3101, 3123. An attempt requires proof that the actor, “with intent to commit a specific crime, ... does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a). The crime of involuntary deviate sexual intercourse requires “some penetration however slight.” 18 Pa.C.S. §§ 3101, 3123. Here, Hawkins argues that the evidence only established that he kissed the complainant’s vagina. As such, Hawkins contends that the evidence was insufficient to prove that he intended to orally penetrate the complainant’s vagina.

When presented with a challenge to the sufficiency of the evidence, we are required to view the evidence in the light most favorable to the verdict winner and draw all reasonable inferences therefrom to determine if there is sufficient evidence to find every element of the crime charged. Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990). The complainant testified that Hawkins kissed her vagina. From this evidence, the jury could certainly infer Hawkins’s intent to penetrate her vagina with his tongue, or to force the act of cunnilingus upon her. See Commonwealth v. Vanderlin, 398 Pa.Super. 21, 35-37, 580 A.2d 820, 828-829 (1990) (the jury could conclude that defendant attempted involuntary deviate sexual intercourse from the evidence establishing that the defendant touched the victim’s mouth with his penis); see also Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987) (eunnilingus is one of the acts proscribed by section 3123 of the Crimes Code). We conclude, therefore, that the evidence was sufficient to support Hawkins’s conviction for attempted involuntary deviate sexual intercourse. Fromal, supra.

Next, Hawkins argues that the trial court committed reversible error in refusing his request for a jury instruction on the lesser included offense of indecent assault. See 18 Pa.C.S. § 3126. A trial court must charge on a lesser included offense if there is some disputed evidence concerning an element of the greater charge or if the undisputed evidence is capable of more than one rational inference. Commonwealth v. Coleman, 344 Pa.Super. 481, 496 A.2d 1207 (1985); Commonwealth v. Channell, 335 Pa.Super. 438, 484 A.2d 783 (1984). “It is not error ... for a judge to refuse to instruct the jury on the lesser included offense unless the evidence could support a conviction on the lesser offense.” Commonwealth v. Wilds, 240 Pa.Super. 278, 287, 362 A.2d 273, 278 (1976) (emphasis added). Cf. Commonwealth v. Sirianni, 286 Pa.Super. 176, 428 A.2d 629 (1981) (in prosecution for aggravated assault, court of common pleas properly refused defendant’s request to charge the jury on simple assault as the lesser included offense where defendant followed the victim, pulled a gun and shot twice at the victim at point-blank range, one shot hitting the victim in the arm and the other missing the victim’s head by inches).

The trial court concluded that there was no indication that the offense of indecent assault was committed rather than the greater offense of involuntary deviate sexual intercourse, and thus a charge on indecent assault was not warranted. The Commonwealth does not dispute that indecent assault is a lesser included offense of involuntary deviate sexual intercourse. The Commonwealth asserts that the trial court properly refused the indecent assault instruction “because there was no evidence of indecent assault[.]” The Commonwealth’s argument, however, misconstrues the language of the indecent assault statute as well as the recent case law interpreting the term “indecent contact,” an element of indecent assault. See 18 Pa.C.S. §§ 3101, 3126.

Hawkins contends that “[a] jury could, after hearing the evidence, rationally conclude that appellant possessed only the intent to indecently assault his victim by nonconsensual sexual touching, ... and did, in fact, irrespective of intent, complete or attempt only indecent assault and not the greater offense of involuntary deviate sexual intercourse.” We are inclined to agree.

The evidence at trial established that the complainant was in a “crack house” in Philadelphia when she met Hawkins. Thereafter, the victim voluntarily accompanied Hawkins and they proceeded to another crack house. When the complainant wanted to leave, Hawkins told her she could not. A struggle ensued. Hawkins then forced the complainant onto the couch, told her he wanted to have sex with her, and ordered her to remove her shorts and her bra. The complainant refused and Hawkins hit her with a blunt object.

The complainant testified that Hawkins had vaginal intercourse with her five times. She also testified that Hawkins kissed her vagina and that she pushed him away. Additionally, the complainant testified that Hawkins placed his penis near her rectum, and she again pushed him away, and that Hawkins demanded that she perform oral sex on him, but she refused. When Hawkins fell asleep, the complainant escaped and contacted the police.

At the conclusion of the evidence, the trial court permitted the charges of attempted involuntary deviate sexual intercourse and rape to go to the jury. Hawkins was found not guilty of rape, and guilty of attempted involuntary deviate sexual intercourse.

Our review of the record supports Hawkins’s claim that the undisputed evidence is capable of more than one rational inference. The jury could have rationally concluded that Hawkins was guilty of either attempted involuntary deviate sexual intercourse or indecent assault. Coleman, supra; Wilds, supra.

Involuntary deviate sexual intercourse is defined as Sexual intercourse per os or per anus between human beings who are not husband and wife, except as provided in section 3128 (relating to spousal sexual assault), and any form of sexual intercourse with an animal. The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical hygienic or law enforcement procedures.

18 Pa.C.S. § 3101. Sexual intercourse, “[i]n addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.” Id. The offense of indecent assault is defined as follows:

A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:
(1) He does so without the consent of the other person[.]
******

18 Pa.C.S. § 3126. Indecent contact is “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S. § 3101.

In Commonwealth v. Grayson, 379 Pa.Super. 55, 549 A.2d 593 (1988), this court construed the term “touch” as it is used in the definition of “indecent contact” under 18 Pa.C.S. § 3101. At the conclusion of its analysis, this court stated:

Properly construed, the statute provides that if any part of a victim’s body is brought into contact with a sexual or intimate part of the defendant’s body, without the victim’s consent, for the purpose of arousing or gratifying the sexual desire in either person, such contact constitutes indecent contact. Likewise, if a sexual or intimate part of the victim’s body is brought into contact with any part of the defendant’s body, without the victim’s consent, for the purpose of arousing or gratifying the sexual desire in either person, such contact constitutes indecent contact.

Id., 379 Pa.Super. at 61, 549 A.2d at 596 (emphasis in original). Additionally, whether the offender is touching a sexual or intimate part of the victim’s body, or the offender is forcing the victim to touch a sexual or intimate part of his body, the act of “touching,” as construed by the Grayson court, is not limited to the hand or finger. Id.

“The separate crime of indecent assault was established because of a concern for the outrage, disgust, and shame engendered in the victim rather than because of physical injury to the victim.” Commonwealth v. Capers, 340 Pa.Super. 136, 143, 489 A.2d 879, 882 (1985). Due to the nature of the offenses sought to be proscribed by the indecent assault statute, and the range of conduct proscribed, the statutory language does not and could not specify each prohibited act. Moreover, the case law does not evince a definitive judicial interpretation that the statutory offense of indecent assault does not encompass conduct such as “kissing the vagina,” or conduct falling short of penetration, whether it be of the vagina or the anus. See Commonwealth v. Grayson, supra (where defendant brushed his penis against the underside of the victim’s jaw, evidence supported conviction of indecent assault). Clearly, it does not strain logic to reason that when Hawkins kissed the victim’s vagina, bringing his mouth into contact with a sexual part of the victim’s body, his conduct fell within the statutory prohibitions of the indecent assault statute. 18 Pa.C.S. §§ 3101, 3126. “[I]f it is rational for the jury to render a verdict of not guilty of the greater offense but guilty of the lesser, it is incumbent upon the judge to instruct the jury on the law related to the constituent offense if so requested by counsel.” Commonwealth v. Wilds, 240 Pa.Super. at 288, 362 A.2d at 278. Thus, the trial court’s failure to give the requested instruction on indecent assault deprived Hawkins of the possibility that the jury would find him guilty of an offense carrying a less severe sentence. Coleman, supra; see also Commonwealth v. Jordan, 407 Pa. 575, 181 A.2d 310 (1962); Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687 (1960), cert. denied, Soudani v. Pennsylvania, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Wilds, supra.

The Commonwealth also argues that because Hawkins denied all criminal activity and maintained that the victim consented to sexual relations, his request for an instruction on the lesser offense was properly denied. The Commonwealth cites the case of Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991) (en banc) to support this argument.

In Mayfield, the defendant was convicted of aggravated assault and possession of an instrument of crime. On appeal, this court affirmed the judgment of sentence. Mayfield petitioned for permission to appeal and the Pennsylvania Supreme Court remanded for a determination of whether the defendant was entitled to an instruction on self-defense. This court, sitting en banc, concluded that Mayfield was indeed entitled to a self-defense instruction because there was evidence which, if believed, would have justified a finding of self-defense. The court vacated the judgment of sentence and remanded for a new trial. Mayfield, 401 Pa.Super. at 579, 585 A.2d at 1078.

The rationale of Mayfield does not compel the conclusion that Hawkins is not entitled to a lesser included offense instruction simply because he denied all criminal activity. We find that the Commonwealth’s reliance upon Mayfield is misguided. As a general principle, where evidence supports a theory of defense the defendant, upon request, is entitled to an instruction on that theory. See 75A Am.Jur.2d Trial § 1079. If, however, the defendant presents evidence which is inconsistent with his defense, or inconsistent with another defense, there exists “the possibility for absurd results.” Id., 401 Pa.Super. at 572, 585 A.2d at 1074. See Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980); Commonwealth v. Terrell, 276 Pa.Super. 136, 419 A.2d 133 (1980). The Mayfield, court explained the rationale for precluding an instruction which might confuse the jury or lead to absurd results with the following illustration:

For instance, a defendant could request that the jury consider self-defense while at the same time claiming a defense of mistaken identity or alibi. Even in closer cases, such as those in which the facts present a case for an accidental shooting, a request for an instruction on self-defense has been denied as being inconsistent unless the circumstances of the case allow that the accidental injury or death occurred within the course of the actor defending himself.

Id. 401 Pa.Super. at 572, 585 A.2d at 1074. In charging a jury, “it is the primary duty of the trial judge to clarify issues so that the jury may understand the question to be resolved.” Commonwealth v. Beach, 438 Pa. 37, 40, 264 A.2d 712, 714 (1970) (citing Commonwealth v. Meas, 415 Pa. 41, 202 A.2d 74 (1964)). The justification for precluding an instruction on a defense which is either inconsistent with another defense theory, or not supported by the evidence is, of course, to insulate the jury from confusion. “Instructions which mislead or confuse a jury by making improper or inaccurate comment on the evidence in a case may effect a greater error than the giving of no instruction at all.” Mayfield, 401 Pa.Super. at 573, 585 A.2d at 1075. That rationale, however, is not applicable in a case involving a lesser included offense such as this, nor is the source of concern present here. Hawkins did not present conflicting defenses. Further, an instruction on the lesser included offense of indecent assault does not offend the evidence presented. Wilds, supra; see also Commonwealth v. Jordan, 407 Pa. 575, 181 A.2d 310 (1962); cf. Commonwealth v. Schaller, 493 Pa. 426, 431, 426 A.2d 1090, 1093 (1981) (trial court “should charge only on those points and issues which arise out of the evidence and arguments presented”). The Commonwealth’s argument that Hawkins’s request for an instruction conflicts with his defense is, consequently, untenable.

We hold, therefore, that the trial court erred in refusing Hawkins’ request for a jury instruction on the lesser included offense of indecent assault. Because our disposition requires a new trial, we find it unnecessary to address Hawkins’ final claim.

Reversed and remanded for a new trial. Jurisdiction relinquished.

OLSZEWSKI, J., files a dissenting statement.

OLSZEWSKI, Judge,

dissenting.

Although I give due regard to the reasoning of the majority, I believe the facts of this case do not support a charge on the lesser offense of indecent assault. Accordingly, I must respectfully dissent. The victim testified that appellant kissed her vagina. The trial court allowed the jury to consider charges of attempted involuntary deviate sexual intercourse and rape to go to the jury. My reading of the caselaw in this area indicates that the act of kissing the victim’s vagina would support the charge of involuntary deviate sexual intercourse. See, Opinion by Cirillo, J., at note 1 (collecting cases). It is unclear why the trial court limited the jury’s consideration of the charge of involuntary deviate sexual intercourse to attempt. Since I find that there was no dispute regarding whether the contact involved was sufficient to support the penetration element of involuntary deviate sexual intercourse, I find that appellant was not entitled to an instruction on the lesser offense of indecent contact. I would affirm the judgment of sentence.

      . We note that the term “penetration, however slight” is not limited to penetration of the vagina; entrance in the labia is sufficient. See Commonwealth v. Ortiz, 311 Pa.Super. 190, 457 A.2d 559 (1983) (twelve-year old victim’s testimony that defendant had licked her vagina was sufficient to support defendant’s conviction for involuntary deviate sexual intercourse); Commonwealth v. Hornberger, 199 Pa.Super. 174, 178, 184 A.2d 276, 279 (1962) ("the testimony of the prosecutrix that the appellant put his mouth on her vagina was sufficiently descriptive to establish the element of penetration.”); see generally Commonwealth v. McIlvaine, 385 Pa.Super. 38, 46-47, 560 A.2d 155, 159 (1989) (discussing "penetration"). This particular issue, however, is not before us since Hawkins was acquitted of involuntary deviate sexual intercourse, and convicted only of attempted involuntary deviate sexual intercourse.

      . Involuntary deviate sexual intercourse is graded as a felony of the first degree, 18 Pa.C.S. § 3123, punishable by a term of imprisonment of not more than twenty years. See 18 Pa.C.S. § 1103(1). Hawkins was convicted of attempted involuntary deviate sexual intercourse, which is punishable by a term of imprisonment of not more than ten years. See 18 Pa.C.S. § 1103(2); see also 18 Pa.C.S. § 905(a) (“An attempt, solicitation or conspiracy to commit murder or a felony of the first degree is a felony of the second degree.”). Indecent assault is graded as a misdemeanor of the second degree, 18 Pa.C.S. § 3126, and is punishable by a term of imprisonment of up to two years. See 18 Pa.C.S. § 1104(2).


author: HESTER, Judge:

text:
    614 A.2d 1203
    COMMONWEALTH of Pennsylvania v. Lester EADDY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed Sept. 30, 1992.

      Lester Eaddy, appellant, pro se.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   HESTER, Judge:

Lester Eaddy appeals the June 7,1991 denial of his petition for PCRA relief. We affirm.

On February 4, 1987, appellant was convicted following a nonjury trial of two counts of aggravated assault and reckless endangerment and one count of possession of an instrument of crime. In post-trial motions, appellant contended that counsel was ineffective for failing to file a motion to dismiss under Rule 1100 and that the evidence was not sufficient to support his convictions. A hearing was held on the issue of trial counsel’s ineffectiveness on January 17, 1988, when appellant was represented by new counsel. In denying appellant’s post-trial motions, the trial court determined the following:

The defendant’s main unhappiness with trial counsel was trial counsel’s refusal to file a motion requesting the defendant’s discharge under Rule 1100. Trial counsel testified that he was aware that the defendant wished such a motion filed and he, trial counsel, had specifically refused to file such a motion or to pursue such relief. Trial counsel, William Stewart, testified that the reason he did not pursue relief under Rule 1100 was that he was personally aware that the case was tried at the earliest possible time given the Court’s calendar. Attorney Stewart went on to describe that he had been personally assigned to the courtroom and the judge for an extended period of time prior to this case and was familiar with the Court’s calendar and docket at the time. Trial counsel concluded that he considered a motion for dismissal pursuant to Rule 1100, “frivolous.” (N.T., January 27, 1988, pages 19 thru 25).
Defendant’s Post-Trial Motions raised the issue of the sufficiency of the evidence to support a verdict of conviction on the charge of aggravated assault. There are two separate assaults. The court will discuss each one.
The evidence showed that on the evening of October 30th, [1985], the defendant appeared on the porch of a house situated and known as 1623 N. 56th Street. The incident occurred at approximately 8:00 P.M. that evening. The apartment on the first floor was occupied by Mrs. Lucy Adams, her daughter, Arlene Briggs, Mr. Kevin Rawls and a number of small children. At that time, the defendant, Lester Eaddy, knocked on the door. He requested that Arlene Briggs come to the door. She refused. She did look out of the window and observed the defendant. (N.T., 2/4/87, pg. 7). She did not go to the door, however, but went to the rear of the house. Mr. Kevin Rawls stayed in the living room. Two gunshots were fired through the window. One of them struck Mr. Rawls. Because the shade was drawn on the window, it is assumed that the person firing the shots was not aiming at any specific person and simply fired blindly. The defendant argues that he should not be convicted of aggravated assault since there is no evidence of a specific intent as to a specific person. In these circumstances, a specific intent toward a specific person is unnecessary. Commonwealth v. Daniels, [467 Pa. 35,] 354 A.2d, 538. In this case, it is clear that the defendant fired gunshots into a residence he knew to be occupied. His indifference as to whom might be shot does not lessen the seriousness of his act. Nor is it any defense that more serious harm was not caused. Commonwealth v. Bond, [261 Pa.Super. 311,] 396, A.2d 414. Commonwealth v. Wanamaker, [298 Pa.Super. 283,] 444 A.2d, 1176. The Court has no difficulty in finding that § 2702(4) applies to defendant’s actions on October 30, 1985.
On November 1, 1985, Arlene Briggs was specifically attacked by the defendant. He came up behind her and attempted to stab her in the neck with a fork. Injury to her was avoided only by her physical efforts to evade the defendant and the timely intervention of the police. (N.T., 2/4/87, pgs. 32 thru 37). The Court finds that the assault of November 1, 1985, qualifies as the defendant ... attempted] to cause serious bodily injury to Arlene Briggs. While a fork is not a “deadly weapon”, the defendant’s attempt to strike Ms. Briggs in the head or neck certainly justifies the inference that he intended serious bodily harm. Commonwealth v. Pandolfo, [300 Pa.Super. 447,] 446 A.2d 939. The defendant’s bland assertion that he was intending only to have a conversation with Ms. Briggs is wholly unconvincing.

Trial court opinion, 4/19/88, at 2-4.

Appellant filed a direct appeal, raising two issues: “[T]rial counsel was ineffective for failing to file a motion to dismiss pursuant to Pa.R.Crim.P. 1100 and also that the evidence was insufficient to sustain his two aggravated assault convictions.” Superior Court opinion, 11/21/88, at 1. We reviewed the merits of the underlying Rule 1100 claim and determined that it was meritless and that trial counsel was not ineffective for failing to move for dismissal on that basis. We then exhaustively reviewed the evidence against appellant regarding the charges on both October 30, 1985, and November 1,1985. We concluded that the evidence was sufficient to sustain his convictions in both instances. Commonwealth v. Eaddy, 385 Pa.Super. 648, 555 A.2d 244 (1988) (No. 868 Philadelphia, 1988).

On May 16, 1990, appellant filed his first petition for relief under the Post-Conviction Relief Act. His contentions were that his right to a speedy trail was violated pursuant to both Rule 1100 and the sixth amendment to the United States constitution and that prior appellate counsel was ineffective for failing to preserve this issue. He also alleged that the evidence was insufficient to support his convictions. Counsel was appointed, and he filed a no-merit brief and asked to withdraw. On June 10,1991, the trial court granted counsel’s petition to withdraw and dismissed the petition without a hearing. This appeal followed.

Pro se appellant raises two issues: whether the evidence was sufficient to sustain his conviction for aggravated assault as to the November 1, 1985 assault on Arlene Briggs, and whether his constitutional right to a speedy trial was violated by the fifteen-month delay between his arrest and trial. Appellant concedes that the first “issue was previously presented on direct appeal to the instant Court....” Appellant’s brief at 3. He seeks “to reargue his case using the principles of law promulgated in the Pennsylvania Supreme Court’s holding in Commonwealth v. Mayo, 272 Pa.Super. 115, 414 A.2d 696 (1979).” Id.

Initially, we discuss whether appellant’s claims for relief may be entertained under the PCRA. Appellant’s eligibility for relief is governed by the provisions of the Post-Conviction Relief Act. 42 Pa.C.S. § 9543 controls appellant’s eligibility for relief under the PCRA and lists four factors that must be met before such relief may be granted. 42 Pa.C.S. §§ 9543(a)(1), (a)(2), (a)(3), and (a)(4). Section 9543(a)(3) provides that allegations of error that have been previously litigated may not be entertained in a petition for post-conviction relief.

Section 9544(a) of the PCRA defines previous litigation:

(a) Previous litigation. — For the purpose of this sub-chapter, an issue has been previously litigated if:
(1) it has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner did not appeal;
(2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or
(3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.

As the issue of the sufficiency of the evidence in connection with the November 1, 1985 attack on Arlene Briggs was decided by this court, which is the highest appellate court in which appellant had review as a matter of right, it is previously litigated under section 9544. Appellant is not eligible for relief under the PCRA as to this issue.

Next, we address whether appellant has waived the second issue presented, his sixth amendment speedy trial claim. Section 9543(a)(3)(i) provides that an issue that has been waived is not cognizable under the PCRA. Section 9544(b) provides, in relevant, part, “[A]n issue is waived if the petitioner failed to raise it and if it could have been raised ... on appeal.” (Emphasis added). Since appellant’s issue regarding his speedy trial right could have been raised on direct appeal, it has been waived under section 9544.

Appellant nevertheless will be eligible for relief under the PCRA if one of the two exceptions to waiver contained in section 9543(a)(3) applies. Section 9543(a)(3) provides that an allegation of error that has been waived can be entertained under the PCRA under two conditions:

(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S. § 9543(a)(3). Since appellant’s sixth amendment issue has been waived due to his failure to raise it during direct appeal proceedings, section 9543(a)(3)(iii) applies if the waiver does not constitute a state procedural default barring federal habeas corpus relief. Commonwealth v. Hanes, 397 Pa.Super. 38, 579 A.2d 920 (1990); Commonwealth v. Ryan, 394 Pa.Super. 373, 575 A.2d 949 (1990).

We next examine whether the waiver constitutes a state procedural default barring federal habeas corpus relief. If not, the issue is not waived. Federal courts will excuse a state procedural default based upon a showing of cause and prejudice. Coleman v. Thompson, — U.S. —, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). There must be cause for the default and prejudice resulting therefrom.

Ineffective assistance of counsel will constitute cause for procedural default in federal court allowing for habeas corpus relief as long as the defendant had a constitutional right to counsel at the stage in the state proceeding where counsel’s ineffectiveness resulted in waiver. Coleman v. Thompson, supra. In this case, appellant had the right to counsel during his direct appeal as of right, which is where this sixth amendment claim was waived. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Furthermore, he had the right to effective assistance of counsel during that direct appeal. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

Accordingly, under Coleman, an allegation of ineffectiveness of his prior appellate counsel in failing to raise this issue during direct appeal would result in the claim not being waived in the federal courts. Thus, an allegation of ineffectiveness of counsel in failing to raise the issue during direct appeal overcomes the bar of waiver under section 9543(a)(3)(iii). Commonwealth v. Pitts, 397 Pa.Super. 387, 580 A.2d 352 (1990); Commonwealth v. Hanes, supra; Commonwealth v. Weinder, 395 Pa.Super. 608, 613 n. 2, 577 A.2d 1364, 1367 n. 2 (1990); Commonwealth v. Velasquez, 387 Pa.Super. 238, 563 A.2d 1273 (1989).

In the present case, appellant is pro se and in his PCRA petition, clearly alleges that prior counsel were ineffective for failing to preserve the sixth amendment issue. In his appellate brief, appellant does not layer the sixth amendment claim properly; however, in light of his pro se status and the proper layering of the ineffectiveness claim in the PCRA petition, we will assume that on appeal, he has alleged that prior counsel was ineffective for failing to raise the sixth amendment issue during appellant’s direct appeal. Accordingly, we will treat the issue as not waived and determine whether it is cognizable under the PCRA.

We observe that in accordance with the above-cited cases, this court consistently has held that an allegation of ineffectiveness of counsel in failing to preserve an issue is sufficient to overcome waiver under section 9543(a)(3)(iii) of the PCRA when the proceedings involves a petitioner’s first PCRA petition. In this connection, it is important to realize that nearly all claims are waived under the PCRA since nearly all claims potentially could have been raised on direct appeal. This applies even if the first-time petitioner never has obtained appellate review of his conviction. This crucial right to direct review of all criminal convictions, guaranteed under the Pennsylvania constitution, should not be lost due to the incompetent advice of prior counsel that no meritorious issues exist.

In the present case, there is no indication that counsel analyzed the issue and decided to forego it, and there was a fifteen-month delay in appellant’s trial due to overcrowded dockets, which is imputed to the Commonwealth under the sixth amendment (unlike under Rule 1100). Appellant alleges that prior counsel were ineffective for failing to raise the issue. These facts are sufficient to overcome waiver.

We also observe that this conclusion about the intent of section 9543(a)(3)(iii) does not raise the specter of serial PCRA petitions based on numerous layered allegations of ineffective assistance of counsel. The PCRA has redressed the problem of repetitious PCRA petitions involving layered claims of ineffectiveness to overcome waiver. When a criminal defendant has once had the opportunity to avail himself of the PCRA, all claims will be waived unless the claim establishes that the petitioner is innocent. 42 Pa.C.S. § 9543(a)(3)(h); Commonwealth v. Dukeman, 413 Pa.Super. 397, 605 A.2d 418 (1992).

We next determine whether appellant has met any of the requirements contained in section 9543(a)(2) of the PCRA, which also limits a petitioner’s eligibility for relief. That section provides that a PCRA petitioner must plead that his conviction resulted from one or more of eight circumstances:

(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.
(iv) The improper obstruction by Commonwealth officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.

Appellant’s sixth amendment claim falls within the provisions of section 9543(a)(2)(v), and we will address its merits. The claim is cognizable under the PCRA even though it does not relate to the truth-determining process and it involves a claim of ineffectiveness of counsel for the following reason.

Once again we begin with the basic precept that nearly all PCRA claims are waived since they all could have been raised in a direct appeal. Thus, to overcome waiver, all issues will be framed in terms of prior counsel’s ineffectiveness for failing to preserve the claim. However, that allegation of ineffectiveness must relate solely to the waiver analysis, then the underlying claim must be analyzed in terms of whether it is cognizable. Otherwise, all PCRA claims would fall within only one category of cognizable claims — 9543(a)(2)(ii).

Any other approach would erase three of eight types of cognizable PCRA claims for the following reason. If a sentence is imposed in excess of the lawful maximum and no appeal is taken, the allegation will be that prior counsel was ineffective for failing to raise the legality of sentence on appeal. However, allegations regarding sentence do not relate to the truth-determining process and are not cognizable. Meanwhile, the PCRA clearly was intended to redress sentences exceeding the lawful maximum. Similarly, if a tribunal acts without jurisdiction but the defendant’s prior counsel failed to appeal, the lack of jurisdiction, viewed in terms of ineffectiveness of counsel, would not be cognizable since jurisdiction does not relate to the truth-determining process.

Thus, it is clear that the issue of ineffectiveness for failing to raise the issue in direct appeal proceedings must be viewed solely in the context of section 9543(a)(3). Then, the claim itself must be analyzed under section 9543(a)(2). In this case, the issue is whether prior counsel were ineffective for waiving a valid sixth amendment claim on appeal. Prior counsel’s ineffectiveness for failing to raise the claim overcomes the bar of waiver. The claim itself, whether the sixth amendment was violated, falls within section 9543(a)(2)(v). Therefore, it is cognizable.

On the other hand, if we assumed that the claim was that trial counsel was ineffective for failing to seek severance and that prior counsel were ineffective for failing to preserve the issue on direct appeal, the allegations relating to waiver are viewed in terms of section 9543(a)(3)(iii). However, the underlying claim, ineffectiveness of counsel in not seeking severanee, would fall within section 9543(a)(2)(ii) and would not be cognizable since the truth-determining process is not involved in a severance claim.

Having concluded that appellant’s claim is cognizable under section 9543(a)(2)(v), we review the merits. Relying upon Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), appellant alleges that his speedy trial rights were violated. In Barker, the Court adopted a balancing test to determine whether a defendant’s speedy trial rights are violated. It announced that the following factors are to be used in a speedy trial analysis: the length of the delay, the reason for the delay, whether the defendant has asserted his right to a speedy trial, and any prejudice to the defendant from the delay. In the present case, only one factor, the amount of time between appellant’s arrest and trial, weighs in his favor. Appellant was tried fifteen months after the incident. Meanwhile, the record establishes that the delay resulted from the trial court’s crowded docket. The case was tried at the earliest possible time given the trial court’s calendar. Appellant made no attempt to dismiss the action due to the delay in trial. Finally, appellant does not allege that he suffered any prejudice from the delay. Thus, appellant’s speedy trial claim is without merit.

Order affirmed.

BECK, J., concurs in the result.

      . Appellant does not allege that this decision was in error.

      . Of the eight types of cognizable PCRA claims, six consistently will be waived. The discovery of inculpatory evidence and the obstruction of the appellate process possibly are not claims that could not have been raised on appeal.


author: POPOVICH, Judge.

text:
    614 A.2d 1209
    Harold P. STARR, Appellee, v. ZDROK & ZDROK, P.C. and Alexander Zdrok, Appellants.
    Superior Court of Pennsylvania.
    Argued July 14, 1992.
    Filed Sept. 29, 1992.

      Vladimir N. Zdrok, Philadelphia, for appellants.
    Harold P. Starr, in pro. per.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

We are asked by the defendant/appellant, Alexander Zdrok, to review an order dismissing his appeal of an arbitration award for “lack of prosecution”. We reverse.

The facts reveal that the plaintiff/appellee, Harold P. Starr, filed a complaint alleging a default on the part of the defendant in the payment of rent due under a sublease agreement between the parties. An answer was filed and the dispute was heard in arbitration by a panel which found in favor of the plaintiff and awarded him $22,334.02. After the award was reduced to judgment, the defendant filed a “Notice of Appeal” to the Court of Common Pleas of Philadelphia County for a trial de novo. What followed, however, was the entry of an order dated November 19, 1991, dismissing the appeal for “lack of prosecution” and reinstating the original arbitration award against the defendant. In its opinion in support of the November 19th order, the court wrote:

... A mandatory settlement conference was scheduled for November 19, 1991, and the date of the conference stamped on defendant’s notice of appeal. When defendant failed to appear, this court dismissed his appeal for lack of prosecution, and ordered that the original arbitration award be reinstated. It should be noted that defendant has never applied to this court for reconsideration, although the court recognizes that Pa.R.C.P. 3051, which requires such application, was not yet in effect. [Emphasis added]

This appeal followed.

The appellant asserts that the court below abused its discretion in dismissing his appeal (as violative of his constitutional right to a trial by jury) given that he had “no notice” of the pre-trial settlement conference.

In Keisling v. Carlynton School District, 99 Pa.Cmwlth. 201, 512 A.2d 1346 (1986), allocatur denied, 513 Pa. 636, 520 A.2d 1386 (1987), the Court was confronted with a scenario in which an appeal from an arbitration award to Common Pleas Court resulted in the entry of sanctions (e.g., denial of a trial by jury) for the appellant’s failure to appear at a pre-trial conference and file a pre-trial statement as required by Pa. R.Civ.P. 212. Notices of the pre-trial conference and trial dates were published in the local legal journal, neither of which was read by counsel for the appellant.

A motion to reconsider was denied and the case was heard non-jury. Trial was held and judgment was entered in favor of the defendant/appellee. On appeal, the Commonwealth Court reversed the trial court’s denial of the appellant’s request for a trial by jury. Its rationale, as herein relevant, reads:

In the instant matter, there is no indication in the record that the appellant ever received notice from the court, or his attorney, of the pretrial conference.
We agree that an attorney’s failure to keep himself informed as to the schedulings concerning the cases on his docket is a grave matter. Certainly, failing to appear for a scheduled pretrial conference, following the publication of notice in the appropriate journal, is an egregious breach of the standards of conduct expected of an attorney. There are many alternative sanctions which would not preempt the innocent litigant’s constitutional right to a jury trial, including the imposition of fines against the attorney, as well as the assessment of the opposing party’s legal fees against the attorney who misses a conference due to his own negligence.
None of these alternative courses of action were considered by the trial court.
Hi ‡ H* * s¡«
We again emphasize that the appellant’s failure to appear at the pretrial conference cannot be interpreted as a waiver of any fundamental rights, since the record is devoid of any notice directed to the appellant. When viewing the constitutional mandate that the right to a jury trial “shall remain inviolate,” courts must restrict themselves in their interpretations of what conduct constitutes a waiver of this right. While local rules which impute pretrial scheduling notices to members of the bar through publication in the county legal journal are valid and, in fact, salutary, it would be ludicrous to extend such notice to the clients whom they represent.
The order of the Court of Common Pleas of Allegheny County is reversed....

99 Pa.Cmwlth. at 203-06, 512 A.2d at 1348-49 (Emphasis added).

As in Keisling, the record at bar is barren of any notice directed to the defendant. This void is not rectified by the lower court’s reference to a notice of the mandatory settlement conference date being “stamped” on the defendant’s “Notice of Appeal”.

As with any finding of fact made by a trial court, we, as an appellate court, need not accept it where it is not supported by record evidence. Cf. Commonwealth v. Lagamba, 418 Pa.Super. 1, 613 A.2d 1, 3 (1992) (“... we[, as an appellate court,] are ‘not bound by findings wholly lacking in evidence.’” (Citations omitted)). Our examination of the defendant’s “Notice of Appeal” to Common Pleas Court does not reveal the affixing of a “stamp” anywhere thereon from which a reader could detect the date the settlement conference was scheduled. See note 2, supra.

Similarly, we are precluded from accepting as evidence of notice a copy of a letter appearing in the appellee’s brief (Exhibit “A”) addressed to and advising the appellee and counsel for the appellant that a settlement conference was scheduled for November 14,1991. Cf. McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028, 1033 (1987) (“... [as an] appellate court ... we are foreclosed from considering any material (such as in a party’s brief) which has not been duly certified in the record transmitted to us.” (Citations omitted)).

Because the record is devoid of any notice to the defendant informing him of the scheduled pre-trial settlement conference, he cannot be faulted for not appearing. See Keisling, supra. Unlike the plaintiff, we may not “presume” that counsel for the defendant received notice of the pre-trial conference date on the basis that he filed timely an appeal from the December 19, 1991, order dismissing the arbitration appeal — receipt of the latter implies, according to the plaintiff, receipt of the former.

We are bound to make our ruling on facts documented according to our Rules of Appellate Procedure. See, e.g., Rule 1921 (Composition of Record on Appeal); Commonwealth v. Rini 285 Pa.Super. 475, 427 A.2d 1385, 1389 (1981) (“... it is an absolute rule that on appellate review, a court may not consider facts outside the record.” (Footnote omitted)). Therefore, the absence of record evidence to buttress the positions taken and remarks made by either the court below or the plaintiff dictates that the order dismissing the defendant’s appeal of an arbitration award in favor of the plaintiff be reversed.

Order reversed.

HOFFMAN, J., files a dissenting statement.

HOFFMAN, Judge, dissenting.

I respectfully dissent.

      . We note that the present appeal identifies Zdrok & Zdrok, P.C. and Alexander Zdrok as the defendants/appellants.
      For clarification purposes, however, the record indicates a complaint filed against Alexander Zdrok only. No suit was instituted against the law firm of Zdrok & Zdrok, P.C. For example, although the body of the complaint makes reference to Zdrok & Zdrok, P.C. as being in default of the sublease which is the predicate for the suit, the “Wherefore” clause at the end of the document seeks judgment against the "defendant”, who is identified as "Alexander Zdrok” in Paragraph 2 and not Zdrok & Zdrok, P.C.
      Also, service of the complaint by the Sheriff's Department was made on “Alexander Zdrok”, the Answer to the complaint was filed on behalf of the defendant, Alexander Zdrok, and the caption appearing on the face sheet of the arbitration award listed “Alexander Zdrok” as the defendant against whom an award of $20,000.00 was entered without any mention of Zdrok & Zdrok, P.C.

      Lastly, the “Notice of Appeal” from the arbitration award to Common Pleas Court identified "Alexander Zdrok” as the sole defendant. Accordingly, we decide the case at bar as one involving Alexander Zdrok only as the defendant, and we make no disposition touching upon Zdrok & Zdrok, P.C. since we find it not to be a party to the suit either below or on appeal.

      . The order reads as follows:
      AND NOW, to wit, this 19th day of November, 1991, It is hereby ORDERED that the Appeal is dismissed for lack of prosecution, and the original Arbitration Award shall be in full force and effect. failure to appear at mandatory settlement conference
      The underscored portion of the order was handwritten on the face of the document.

      . All that appears on the face sheet of the "Notice of Appeal”, prepared and submitted by counsel for the appellant, are two dates referencing when the prothonotary time-stamped receipt and recording into data processing of the notice. See Record at pages 6-7.

      . The letter was dated October 17, 1991, and was addressed to the appellee and counsel for the appellant by an attorney assigned under Philadelphia’s "Judge Pro Temp Program” to hear the matter.


author: WIEAND, Judge.

text:
    614 A.2d 1212
    COMMONWEALTH of Pennsylvania v. Albert Clair HOLLENBECK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 16, 1992.
    Filed Oct. 5, 1992.

      David G. Ridge, Erie, for appellant.
    Anthony R. Himes, Asst. Dist. Atty., Erie, for Com., appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge.

Albert Clair Hollenbeck was tried by jury and was found guilty of violating Pennsylvania’s fireworks law' by making illegal sales of fireworks at his place of business in Erie County, Pennsylvania. Post-trial motions were denied, and Hollenbeck was sentenced to pay a fine of one hundred ($100) dollars and the costs of prosecution. On direct appeal from the judgment of sentence, Hollenbeck asserts that the trial court erred by holding that the term “shipment”, as used in the fireworks law, did not include the sale of fireworks to nonresidents of Pennsylvania who were permitted to carry the fireworks from his place of business in Pennsylvania. By this ruling, appellant argues, the trial court precluded him from establishing compliance with an exception to the general prohibition which allows a resident wholesaler to make wholesale sales of fireworks in Pennsylvania, so long as the fireworks sold are shipped directly out of state. After careful review, we hold that the trial court correctly interpreted the fireworks law and, therefore, affirm the judgment of sentence.

Because of complaints received from residents of New York State, Pennsylvania State Trooper James Shelatz was assigned to conduct an investigation of Niagara Fireworks, located on Interstate 90 in Erie County, near the New York border. Hollenbeck is the proprietor of Niagara Fireworks. Upon conducting surveillance at Niagara Fireworks, Shelatz observed persons carrying brown paper grocery bags of fireworks from appellant’s place of business. Therefore, he contacted the county sheriffs department in New York State for assistance in carrying on an undercover operation. In response, two sheriffs deputies were assigned to assist Trooper Shelatz in his investigation of Niagara Fireworks.

On June 7, 1990, Deputies Darryl Braley and John Runkle were given $50 by Trooper Shelatz and drove to Niagara Fireworks in an unmarked police vehicle with New York license plates. When the two deputies entered the premises, appellant inquired as to their state of residence and was told by the deputies that they were residents of New York. Thereafter, he sold the two deputies one box of M-78 firecrackers and one box of Roman candles for a price of $34.91. Appellant, however, did not ask the deputies for identification, and he did not make an attempt to ascertain their purpose for purchasing the fireworks. Upon receiving the fireworks in a brown paper bag, the deputies left Niagara Fireworks and drove to State Police headquarters, where they turned over the purchased fireworks to Trooper Shelatz. As a result of this transaction, a criminal complaint was prepared against appellant in which he was charged with having made an illegal sale of fireworks.

Section 1272 of the Pennsylvania Fireworks Law provides as follows:

§ 1272. Sale of fireworks prohibited; supervised public displays permitted; permits
Except as hereinafter provided, it shall be unlawful for any person, copartnership, association or corporation to offer for sale, expose for sale, sell at retail, or use or explode any fireworks: Provided, That the governing body of any city, borough, town or township shall have power, under reasonable rules and regulations adopted by it, to grant permits for supervised public displays of fireworks to be held therein by municipalities, fair associations, amusement parks and other organizations or groups of individuals. Every such display shall be handled by a competent operator to be approved by the governing body of the municipality in which the display is to be held, and shall be of such a character and so located, discharged or fired as in the opinion of the chief of the fire department or such other officer as may be designated by the governing body of the municipality after proper inspection shall not be hazardous to property or endanger any person or persons. Application for permits shall be made in writing at least fifteen (15) days in advance of the date of the display. After such privilege shall have been granted, sales, possession, use and distribution of fireworks for such display shall be lawful for that purpose only. No permit granted hereunder shall be transferable.

Act of May 15,1939, P.L. 134, § 2, as amended, 35 P.S. § 1272 (emphasis added). Narrow exceptions to the general prohibition against the sale of fireworks in Pennsylvania are set forth at Section 1275 of the fireworks law, which provides:

§ 1275. Sale for permitted uses; shipments to points outside state
Nothing in this act shall be construed to prohibit any resident wholesaler, dealer or jobber to sell at wholesale such fireworks as are not herein prohibited, or the sale of any kind of fireworks, provided the same are to be shipped directly out of state, or are to be used by a person holding a permit from any municipality at the display covered by such permit, or when used as authorized by a permit for agricultural purposes in connection with the raising of crops and the protection of crops from bird and animal damage, or the use of fireworks by railroads or other transportation agencies for signal purposes or illumination, or when used in quarrying or for blasting or other industrial use, or the sale or use of blank cartridges for a show or theatre, or for signal or ceremonial purposes in athletics or sports, or for use by military organizations or organizations composed of veterans of the United States Army or Navy.

Act of May 15,1939, P.L. 134, § 4, as amended, 35 P.S. § 1275 (emphasis added).

These two provisions of the Pennsylvania Fireworks Law were interpreted and explained in an opinion authored by the Honorable Edward N. Cahn of the United States District Court for the Eastern District of Pennsylvania in the following manner:

Reading § 1272 in light of § 1275 persuades me that the phrases “offer for sale” or “expose for sale” include a “wholesale” transaction unless it comes within the exception delineated in § 1275. “Wholesale” sales of fireworks are prohibited by § 1272 unless they fall within the precise limits of the § 1275 exception. Section 1275 contains the only exceptions, namely, wholesale shipments destined for foreign states or made to licensed in-state fireworks professionals.
Section 1272’s prohibition against “selling] at retail” merely sets forth one of several types of prohibited activities. Section 1272 also makes it unlawful to offer fireworks for sale or to expose fireworks for sale without the qualification that those transactions be at retail. There is no reason to permit wholesale transactions of fireworks within a state where retail sales are not allowed.

United States v. Spiezio, 523 F.Supp. 264, 270 (E.D.Pa.1981). Thus, a person is precluded by law from making any retail sales of fireworks in Pennsylvania. Moreover, he can only sell fireworks at wholesale so long as they are to be shipped directly out of state.

At trial, appellant proposed to call an expert witness who would have testified to the common meaning of the terms “wholesale” and “shipment” as applied to the business practices of other Erie County sellers of fireworks. In response to a Commonwealth motion in limine, however, the trial court ruled that such expert testimony would be irrelevant to establishing appellant’s compliance with the fireworks law because, as a matter of law, the sale of fireworks to the two undercover deputies did not constitute a shipment of fireworks directly out of state. The trial court instructed the jury as follows:

It is charged that the defendant unlawfully offered for sale without authorization or privilege under the laws of the Commonwealth certain items including fireworks and [ ] did intentionally sell fireworks, a Class C explosive identified as M-78 Magnum Firecrackers and Roman Candle sky rockets, to John W. Runkle and Darryl Braley, both residents of New York State, and did permit them to transport the same by means of a passenger vehicle.
Now, what is necessary to prove this crime? In order to find the defendant guilty of this charge, you must find beyond a reasonable doubt the following elements existed:
One, that the defendant sold fireworks, to-wit, Class C explosives, in this case M-78 Magnum Firecrackers and Roman Candle sky rockets to John Runkle and Darryl Braley, both of New York.
Two, that these items were not shipped but rather taken by the police officer.
If you find the above elements of the crime were committed by the defendant beyond a reasonable doubt, you need go no further, and you should return to the courtroom with your finding that the defendant was guilty. On the other hand, if the Commonwealth has not proven these elements beyond a reasonable doubt, you must find the defendant not guilty.
I might add there is an exception. That if you find the defendant was a wholesaler and the goods were actually shipped as opposed to just being taken by the police officers, there is an exception to this charge and the defendant cannot be found guilty. However, I will now instruct you as a matter of law that if you find the police officers were given the items and were allowed to take them to their car, this would not constitute shipping, and thus would not come within the exception under the statute to prevent a prosecution. Also, as a matter of law, I would instruct you that if the items were not shipped, it would make no difference whether the defendant was a wholesaler or a retailer.

Our research has disclosed no appellate decisions in this Commonwealth defining more specifically that which will constitute a shipment directly out of state under the Pennsylvania Fireworks Law. The courts in other jurisdictions having similar fireworks laws, however, have addressed this issue. In Hill v. State, 488 N.E.2d 709 (Ind.1986), the Supreme Court of Indiana interpreted that state’s fireworks law in the following manner:

The framework provided by the General Assembly seems plain enough. It manifests a desire to reduce the number of children and adults burned or injured by fireworks. The legislature has determined that certain fireworks are safe for retailing to the general public and that others are not. Dealers are allowed to sell all fireworks at wholesale and all fireworks may be shipped out of state. Appellants see in this scheme the proverbial loophole: the customer walks in the store, signs a statement that he intends to ship all illegal fireworks out of state, buys individual items, and drives away. Although Oakley was asked to show his drivers license to show that he was not an Indiana resident, if we accept the Hills’ argument that they are exempted because the fireworks were to be “shipped directly out of state”, the residence of the purchaser would be of little moment.
We conclude that reading the phrase “shipped directly out of state” as an exception to the rule that only certain listed fireworks can be sold at retail required that the term, “shipped” be read to mean a method of delivery which does not result in the product being placed in general distribu tion within the state. It means that jobbers may sell crates of fireworks and ship them to Illinois; it does not mean that fireworks salesmen can have their customers sign a form and then hand them a paper bag of cherry bombs.

Id., 488 N.E.2d at 710-711 (emphasis added).

In Cornellier Fireworks Co., Ltd. v. St. Croix County, 119 Wis.2d 44, 349 N.W.2d 721 (1984), the Court of Appeals of Wisconsin upheld the grant of a permanent injunction which precluded a fireworks company from making sales of fireworks within the state to non-residents who showed proper identification and signed a document agreeing to transport the fireworks out of Wisconsin. The Court interpreted Wisconsin’s fireworks statute, which is very similar to Pennsylvania’s statutory scheme, as follows:

Section 167.10(1), Stats., generally prohibits the sale or use of fireworks within the State of Wisconsin. Section 167.-10(2), Stats., provides for permits for certain groups to use fireworks in Wisconsin. Section 167.10(4), Stats., provides:
Nothing in this section shall be construed to prohibit any resident wholesaler, dealer or jobber from selling fireworks ... at wholesale, but only when the same are shipped or delivered directly outside of the state of Wisconsin or to an organization, agricultural producer or group granted a permit under sub. (2).
The trial court assumed Comellier was a wholesaler, but concluded that the statute requires that the shipping or delivering be done by the wholesaler and not by a purchaser. It concluded that Cornellier’s method was actually to deliver the fireworks at its store and that the purchaser’s signed statement agreeing to transport the fireworks out of the state was a sham. We agree.
Section 167.10 is designed to prevent injury by fireworks. Fleury v. Wentorf, 82 Wis.2d 105, 110, 262 N.W.2d 68, 70 (1978). It pursues its purpose by strictly regulating the sale and use of fireworks, although fireworks are not entirely banned from the state. Fireworks in Wisconsin may only be sold to and used by specified groups or individuals eligible for permits. Sections 167.10(1) and (2), Stats. Those who can obtain a permit must observe statutory requirements for storing and handling fireworks.
Subsection (.)), when read in the context of the purpose and scheme of sec. 167.10, does not provide an exception to the restriction on fireworks sale and use in Wisconsin. It simply clarifies the statute’s prohibition as applying only to sales where transfer of possession from seller to purchaser takes place in Wisconsin. The statute prohibits selling fireworks in Wisconsin to nonpermit holders. Subsection (If) does not expressly exempt nonresidents from the prohibition and, since it would be inconsistent with the aim of sec. 167.10, we will not infer such an exemption.

Cornellier Fireworks Co., Ltd. v. St. Croix County, supra 119 Wis.2d at 45-46, 349 N.W.2d at 722-723 (emphasis added). See also and compare: Pizza v. Sunset Fireworks Co., Inc., 25 Ohio St.3d 1, 494 N.E.2d 1115 (1986); Van Camp v. Riley, 16 Ohio App.3d 457, 476 N.E.2d 1078 (1984). But see: South Dakota Department of Public Safety v. Haddenham, 339 N.W.2d 786 (S.D.1983).

After careful study of the provisions of the Pennsylvania Fireworks Law and of decisions in other jurisdictions interpreting similar statutory provisions, we hold that the phrase “shipped directly out of state” requires that the fireworks which are being sold by a Pennsylvania wholesaler must be shipped from Pennsylvania by the wholesaler to a destination outside Pennsylvania. It does not include the delivery of fireworks within Pennsylvania by a Pennsylvania seller to a non-resident purchaser. Therefore, we agree with the following interpretation adopted by the trial court:

‘[SJimply delivering the fireworks to someone else for transportation does not constitute the shipping of fireworks directly out of state. Shipping as noted previously is a term of art that obviously requires more than a taking of the goods from the premises by the buyer.’

Trial Court Opinion at p. 3, quoting Commonwealth v. Kaliszewski, No. 2210 of 1989, Erie County Court of Common Pleas (Opinion by Connelly, J.).

The fireworks law was adopted by the legislature to prohibit the sale of fireworks in Pennsylvania, except to those possessing a valid permit therefor. To allow a resident wholesaler to sell fireworks to non-residents within Pennsylvania would not achieve the legislative purpose. The non-resident purchaser could easily give or resell the purchased fireworks to Pennsylvania residents and, thus, defeat the clear intent of the legislature. Such a result would be absurd. Therefore, we hold that the phrase “shipped directly out of state” requires that a Pennsylvania wholesaler ensure the delivery of fireworks, which have been sold, to an out-of-state destination by the shipment of such goods from Pennsylvania to the out-of-state destination. The mere selling of fireworks to a nonresident fails to comply with the Pennsylvania law and, in fact, is a violation thereof.

The judgment of sentence is affirmed.

      . Act of May 15, 1939, P.L. 134, § 1 et seq., as amended, 35 P.S. § 1271 et seq.

      . Testimony established that signs visibly posted outside the Niagara Fireworks building announced that sales would not be made to Pennsylvania residents and that only wholesale sales of at least $25 in merchandise would be made.