author: BROSKY, Justice:

text:
    443 A.2d 307
    COMMONWEALTH ex rel. EARL R. D. v. LINDA H. S. Appeal of EARL R. D.
    Superior Court of Pennsylvania.
    Argued March 11, 1980.
    Filed March 5, 1982.

      Richard Orloski, Allentown, for appellant.
    Thomas J. Turczyn, Allentown, for appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Justice:

Appellant, Earl D., instituted a habeas corpus action against appellee, Linda S., in the Court of Common Pleas of Lehigh County, Pennsylvania, seeking to obtain custody of a child whom he claimed to be his son, Zachary O. S. Personal service was made on Linda S., then a Pennsylvania resident, on August 28, 1978. Counsel for Linda S. filed an appearance on September 1, 1978. On August 6, 1979, Linda S. filed a petition to dismiss the action asserting that the court lacked jurisdiction. A hearing was held on September 10th through 12th, 1979 at which the court held that it did not have jurisdiction over the case and therefore granted the petition to dismiss. This appeal followed. We remand to the trial court for reasons stated herein.

On May 13, 1977, Linda S. gave birth to Zachary S. at the Chapel Hill Memorial Hospital in Chapel Hill, North Carolina. Linda S. was not married at the time she gave birth. For some time prior to the birth of Zachary S., Linda S. and Earl D. had lived together in Pittsboro, North Carolina. Shortly after Zachary S.’ birth, Linda S. moved with her child from North Carolina to Route 1, Wescosville, Lehigh County, Pennsylvania. They resided in Pennsylvania from June, 1978 to March, 1979. During this time, the habeas corpus petition was served on Linda S. On March 27, 1979, Linda S. married Peter R. in Vermont. She and her son resided in Vermont up until the time of argument of this appeal. Linda S. was a registered nurse employed in Vermont up until the time this appeal was argued.

On September 1, 1978, Linda S. filed an answer to Earl D.’s petition for habeas corpus in which she admitted that she had cohabitated with Earl D., but denied that Earl D. was the father of Zachary S. On September 19, 1978, Earl D. filed interrogatories upon Linda S. seeking to determine the date of the child’s birth, the duration of time of the admitted cohabitation, and the identity of the putative father of the child. Linda S. filed timely objections to the interrogatories which were subsequently resolved by the parties who agree to submit themselves, the putative father, Peter R., and the child, to a blood test.

The tests completed in the winter and spring of 1979, indicated that Earl D. could not be excluded as father of the child but that Peter R. was excluded from being father of the child. The motion to dismiss the action commenced by Earl D. was filed on August 6, 1979. On September 12, 1979, the trial court held that the best interests of the child would be served if the State of Vermont assumed jurisdiction in the case pursuant to the Uniform Child Custody Jurisdiction Act, 11 Pa.S.A. § 2301 et seq. (hereinafter U.C. C.J.A.).

Earl D. raises three issues on appeal which include:
1. Whether the trial court erred in holding that it had no jurisdiction over the matter under the U.C.C.J.A.?
2. Whether the trial court erred in holding that the action was filed in an inconvenient forum and that Vermont was the convenient forum?
3. Whether the trial court erred in refusing to permit testimony from a North Carolina lawyer as to that state’s custody law?

The U.C.C.J.A. provides for jurisdiction of 11 Pa.S.A. § 2304 which states:

§ 2304. Jurisdiction
(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This State:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State;
(2) It is in the best interest of the child that a court of this State assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this state; and
(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(3) The child is physically present in this State, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that this court assume jurisdiction; or
(5) The child welfare agencies of the counties wherein the contestant for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.

(b) Except under subsection (a)(3) and (4), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.

(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Section 2304(a)(2) permits a court to assume jurisdiction where it is in the “best interest of the child” and “the child and his parents or the child and at least one of his parents have a significant connection” with the state, § 2304(a)(2)(i), and “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships” is available in the state. § 2304(a)(2)(h). Linda S. and her child resided in Pennsylvania from June 1978 until March 1979. She was served on August 28, 1978. We are unable to hold that on the date that Linda S. was served that the child and Linda S. had a significant connection with Pennsylvania. While Linda S. may have had such a connection because her family resided in Pennsylvania, her child clearly did not have such a connection with Pennsylvania. However, even if we were to hold that a significant connection existed we are unable to hold that “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships” was then available in Pennsylvania. Thus jurisdiction would not attach under § 2304(a)(2).

Accordingly, it is apparent, that at the time that the action was initially filed, the Pennsylvania Courts would not have had jurisdiction under § 2304(a)(4). That section requires that we determine whether another state would have had jurisdiction under § 2304(a)(1), (2) or (3). The only states which could possibly exercise jurisdiction over the dispute at that time were Pennsylvania and North Carolina. North Carolina was the home state of the child. The child resided in North Carolina for the first 13 months of his life. Commonwealth ex rel. Octaviano v. Dombrowski, 290 Pa.Super. 322, 434 A.2d 774 (1981). Jurisdiction also could have been found to have existed in North Carolina under § 2304(a)(2). It was in the best interest of the child for North Carolina to assume jurisdiction because the child and at least one of his parents had substantial connection with the state of North Carolina, Joseph E. H. v. June E. H., 283 Pa.Super. 109, 423 A.2d 739 (1980); K. N. v. Cades, 288 Pa.Super. 555, 432 A.2d 1010 (1981), clearly, because the child and his mother lived in North Carolina for 13 months preceding the action filed in North Carolina. And, furthermore, substantial evidence existed in North Carolina as to the “child’s present or future care, protection, training, and personal relationships^)” Id.

In Haynes v. Willock, 288 Pa.Super. 167, 170, 431 A.2d 341, 342-343 (1981), we said:

In the instant case the permanent residence of the child’s mother is in Delaware County, Pennsylvania with her mother. The child attends first grade in Delaware County, is engaged in Brownies there, is active in such activities as school plays, and has made a number of friends there which she could not do in Virginia due to the relative isolation of the appellants’ home. The child never resided solely with her grandparents in Virginia but resided with her mother who was living with appellants. The purpose of the Uniform Child Custody Act is to prevent the “kidnapping” or “snatching” of children from one jurisdiction to another. In the instant case the child’s mother had been residing in Virginia but had made plans to move to Pennsylvania immediately after the school year had ended. Under these circumstances we hold that sufficient contacts with Pennsylvania have been shown to confer jurisdiction of this matter on the Court of Common Pleas of Delaware County.

See, Matter of D. L. S., 278 Pa.Super. 446, 420 A.2d 625 (1980). Nevertheless, we are unable to hold that North Carolina had jurisdiction over the case at the time it was filed in Pennsylvania because North Carolina had not enacted the U.C.C.J.A. at that time. North Carolina did not adopt the act until 1979. Thus, we must determine whether North Carolina would have adopted jurisdiction over the case under the law as it then existed in North Carolina.

The statute providing for jurisdiction in child custody disputes in North Carolina in effect at the time of the filing in the instant action is found at G.S. 50-13.5(c)(2)(a) and (b) which provided that the North Carolina courts had jurisdiction in a child custody case when (a) the child resided, had domicile or was physically present in the state or; (b) the court had personal jurisdiction of the person, agency, organization or institution having actual care, control and custody of the minor child. The child in the instant case was in the custody of his mother and did not reside in and was not domiciled in nor was he present in the state of North Carolina when the action was filed. Thus, North Carolina would not have had jurisdiction. King v. Demo, 40 N.C.App. 661, 253 S.E.2d 616 (1978); Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975); Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. den. 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974). Thus, we are obliged to hold that Pennsylvania courts had jurisdiction under § 2304(a)(4) because the North Carolina courts would not have jurisdiction under North Carolina law as it then existed. This result is dictated by the purpose of the U.C.C.J.A.

In Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 300, 418 A.2d 729, 732 (1980), our Supreme Court said:

The purpose of the Act [U.C.C.J.A.] is to provide stability to the home environment and to family relationships by continuing controversy over child custody and visitation; to avoid jurisdictional disputes; to deter abductions; to avoid relitigation insofar as feasible; to promote comity and to assure that litigation concerning child custody takes place ordinarily in the state in which the child and his family have the closest connection.

See also: Jurisdiction—Uniform Child Custody Jurisdiction Act—1977 Pa. Laws 20 §§ 1-27, Note, 51 Temple L.Q. 139 (1977); Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conñicts of Laws, 22 Vanderbilt L.R. 1207 (1969).

Having determined that the Pennsylvania courts had jurisdiction in the instant case, we must now decide whether the trial court correctly decided that it was not a convenient forum. Section 2308 of the U.C.C.J.A. provides:

(a) A court which has jurisdiction under this act to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(b) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.
(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) if another state is or recently was child’s home state:
(2) if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(4) if the parties have agreed on another forum which is no less appropriate; and
(5) if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in section 2.
(d) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
(é) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
(f) The court may decline to exercise its jurisdiction under this act if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.
(g) If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this State, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses. Payment is to be made to the prothonotary for remittance to the proper party.
(h) Upon dismissal or stay of proceedings under this section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.
(i) Any communication received from another state informing this State of a finding of inconvenient forum because a court of this State is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this State shall inform the original court of this fact.

This court has addressed this question on a number of previous occasions. See: Commonwealth ex rel. Octaviano v. Dombrowski, supra, (child moved from Pennsylvania after habeas corpus petition filed but before service made, and where child had substantial connection with Pennsylvania, Pennsylvania was a convenient forum); Parks v. Parks, 284 Pa.Super. 400, 426 A.2d 108 (1981), (where mother voluntarily submitted herself to Pennsylvania Court’s jurisdiction and where father resides in Pennsylvania, trial court could not decline jurisdiction); Taylor v. Taylor, 278 Pa.Super. 339, 420 A.2d 570 (1980), (Ontario Court was convenient forum where mother and child in her custody had moved permanently to Ontario); In Re Sagan, 261 Pa.Super. 384, 396 A.2d 450 (1978), (where divorce was granted in New York and mother and child in her custody lived in New York, New York was convenient forum).

We agree with the trial court where it said:

After considering the evidence and evaluating the litigants, we found, quite aside from the matter of jurisdiction, that Pennsylvania is an inconvenient forum for many reasons, namely, that none of the parties even contend that Pennsylvania is the present place of residence of any of the parties; that since March, 1979 Vermont has been the state of residence of both Zachary and his mother, the appellee; that in open court the appellee pronounced her consent and willingness to submit herself and the subject matter of this proceeding to the jurisdiction of the courts of Vermont; that in open court she acknowledged the appellant to be the father of the child; that Vermont is in a better position to provide the necessary supervision over and enforcement of any visitations deemed appropriate, in view of the age of the child, 2V2 years, the geography of the residences as between the appellant and the appellee and the other considerations confronting a court. Upon reflection, we continue to believe those findings to be valid and persuasive.

(Lower Court Opinion pages 8 and 9.)

Additionally, at the time the trial court made its decision, Vermont was the child’s home state. It had a close connection with child and his mother. § 2308(c)(1). Substantial evidence existed in Vermont concerning the child’s “care, protection, training and personal relationships” § 2308(c)(3) and, most importantly, the exercise of jurisdiction by Pennsylvania would contravene one of the purpose of the act, § 2308(c)(5). Namely, to:

(3) assure that litigation concerning the custody of a child take place ordinarily in the jurisdiction with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts decline the exercise of jurisdiction when the child and his family have a closer connection with another court.

11 P.S. § 2302(a)(3).

Accordingly, we affirm the decision of the trial court insofar as it decided that Pennsylvania was not a convenient forum and its holding that Vermont is a more convenient forum. 11 P.S. § 2308(e). We remand to the trial court with instructions that it shall advise the courts of Vermont that it has declined to exercise jurisdiction over the case having found Vermont a more convenient forum. 11 P.S. § 2308(h).

Order affirmed. Case remanded to the trial court for proceedings consistent with this opinion.

      . North Carolina did not adopt the U.C.C.J.A. until 1979, to be effective July 1, 1979. G.S. §§ 50A-1 to 50A-25.

      . Vermont has adopted the U.C.C.J.A. 15 V.S.A. § 1031 et seq. 1979 No. 136 (Adj. Sess.).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    443 A.2d 313
    Sally Reagan OPPERMAN v. D. Theodore OPPERMAN, Appellant. D. Theodore OPPERMAN, Appellant, v. Sally R. OPPERMAN.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1981.
    Filed March 12, 1982.
    Petition for Allowance of Appeal Denied July 19, 1982.

      John Molnar, Bangor, for appellant.
    Gus Milides, Easton, for appellee.
    Before HESTER, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

Appellee, Sally Reagan Opperman, obtained an order from the lower court staying appellant’s, D. Theodore Opperman’s, Complaints in Divorce A.V.M. and in Equity seeking an accounting of marital property. Appellant appeals from said order. We quash.

This case has an extensive and unusual procedural history, which needs to be reviewed to appreciate the ruling of this Court.

On December 7, 1977, appellee filed a Complaint in Divorce A.V.M. Two months later, on February 3, 1978, appellant filed an Answer and Praecipe for a Bill of Particulars. However, more than a year elapsed before the Praecipe was withdrawn and a Master was appointed. One day before the Master’s hearing, on May 24, 1979, appellee obtained an ex parte court order staying all proceedings until a resolution of appellee’s Petition to Revoke the Appointment of a Master was made. On July 3, 1979, the Hon. Richard D. Grifo entered an order dismissing the appellee’s Petition to Revoke the Master and lifting the stay. Appeals were then taken by the appellee from Judge Grifo’s order to the Superior and Supreme Courts of Pennsylvania—the former appeal at No. 1519 October Term 1979 was quashed by a Per Curiam order dated December 13, 1979, while the latter Petition for Allowance of Appeal at No. 4 E.D. Mise. Docket 1980 was denied on June 5, 1980.

On November 28, 1979, appellant filed a counterclaim on the grounds of indignities and adultery to the appellee’s Complaint in Divorce A.V.M. The appellee in turn, on February 20, 1980, obtained court approval to discontinue her Complaint. Nonetheless, the appellant pursued his counterclaim, with court approval, as if it were an original complaint. In response to appellant’s action, appellee filed a Praecipe on April 29, 1980 for a Rule for Bill of Particulars and an independent action for Divorce A Mensa et Thoro. Thereafter, appellant filed preliminary objections to the action for legal separation and obtained the scheduling of a Master’s hearing for May 5,1980. However, on May 1,1980, appellee obtained an ex parte order staying the hearing.

Before deciding whether the present appeal is reviewable, a second cause of action initiated by the appellant needs to be discussed to complete the picture of the instant case. To-wit, on June 6, 1978, appellant filed a Complaint in Equity seeking an accounting of certain personal property jointly owned with the appellee. Appellant contended that appellee wrongfully removed and excluded him from enjoying the natural benefits of this property. Appellee counterclaimed that it was the appellant that was wrongfully excluding her from joint possession of said personal property, which was held as tenants by the entireties.

From the date on which the Complaint in Equity was initiated until November 28, 1979, the parties were involved with the filing of answers, counterclaims, interrogatories and the taking of depositions. In fact, it was not until January 29, 1980, that appellant’s counsel filed a praecipe for a non-jury trial with the prothonotary of the Court of Common Pleas of Northampton County. Before a trial date could be scheduled, however, appellee filed a “Motion to Continue Case Pending Disposition of Companion Case,” on the basis that, inter alia, “[t]he outcome of the proceedings in the Divorce action w[ould] directly affect the rights of the parties in the instant action insofar as ownership of property [was] concerned . . ..” As a result of said Motion, the lower court (per Judge Robert A. Freedberg) issued an order on May 22,1980, from which the present appeal was taken, that “all proceedings [be] stayed until further Order of the Court.”

Appellant asserts on appeal that the lower court either lacked the authority to grant the stays, or, in the alternative, that, inasmuch as the equity action was ready for trial and the divorce proceeding was scheduled for a Master’s hearing, the issuance of the stays was an abuse of discretion.

Despite the fact that neither side questions the jurisdiction of this Court to dispose of the present controversy, we are not precluded from reaching the appealability of the lower court’s order sua sponte, Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981), for it is axiomatic that neither silence nor agreement of the parties can confer jurisdiction where it otherwise would not be. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

The appellate court’s jurisdiction is defined by statute, i.e., 42 Pa.C.S.A. § 742 (Purdon’s 1981), which grants this Court “exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas (Emphasis added)

In deciding if the order appealed is final or not, we are guided by the decision of Philco Corp. v. Sunstein, 429 Pa. 606, 241 A.2d 108 (1968), wherein the court held:

“Whether or not a stay order should be considered final for appeal purposes depends to a large extent upon the practical effect and impact the stay order might have on the relief requested by the litigants. If the effect of the stay order is tantamount to a dismissal of the cause of action or amounts to a permanent denial of relief requested, the party aggrieved should undoubtedly be afforded the opportunity to appeal on the basis that such stay order is a final disposition of some, if not all, of the rights involved.
Therefore, a consideration of the practical effects of the stay order on appellant’s cause of action is an essential prerequisite in determining whether the order appealed from is interlocutory.” (Footnote omitted) Id., 429 Pa. at 608-610, 241 A.2d at 109-110.

Initially, we note, and all parties agree, the purpose for which appellee sought to have a stay entered in the divorce and equity actions, as well as the lower court’s reasons for issuance of same, was to afford appellee the opportunity to avail herself of some of the benefits provided for under the new Divorce Code, e.g., equitable distribution of marital property and, if appropriate, alimony. 23 P.S. §§ 401(d) and 501 (Supp.1981-82); Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981).

Applying the rationale of Philco to the case at bar, we observe that the “practical effect” of the lower court’s order delaying litigation on appellant’s divorce and equity actions until after the effective date of the new Divorce Code on July 1,1980, which constituted a total of some 40 days after the entry of the order at issue, does not “work a severe hardship on appellant.” Philco Corp. v. Sunstein, supra, 429 Pa. at 610, 241 A.2d at 110. Such conclusion is based on the fact that we are not confronted with a situation wherein the nature of the relief sought would be substantially diminished in value as a result of the issuance of the stay. No rights are being lost because of the delay in adjudicating the rights and liabilities of the parties. Likewise, we cannot dismiss the point that the period of time between the granting of the stay and the subsequent filing of appellee’s divorce action under the new Divorce Code would have consisted of a short period of time. Further, given appellant’s own petition seeking a divorce and complaint requesting an equitable accounting of personal property, the fact that appellee seeks to proceed under the new Divorce Code virtually guarantees that all of the issues involved in the litigation could and would be resolved in the divorce proceeding without any apparent prejudice to the parties. Id.; Reynolds Metals Company v. Berger, 423 Pa. 360, 223 A.2d 855 (1966). In other words, “the effect of the stay order is [not] tantamount to a dismissal of the cause[s] of action or [does not] amount[ ] to a permanent denial of [the] relief requested[.]” Philco Corp. v. Sunstein, supra, 429 Pa. at 608, 241 A.2d at 109. Thus, since valuable rights are not being denied as a result of the order staying the proceedings in the court below, the order appealed from must be considered interlocutory.

Procedurally, we observe that because the appellee wishes to afford herself the protection of the new provisions—a clearly permitted option in light of the fact that no final decree has been rendered prior to the effective date of the new Divorce Code—she will be permitted to make application to the lower court, which should look to o.ur recent decision in Gordon v. Gordon, supra, wherein we prescribed the manner in which a court should rule on such application. At such hearing, the appellant will have the opportunity to oppose the transfer. However, we note that, given both parties’ request for a divorce and equitable distribution of property, neither side would be prevented by the transfer from presenting any claims or defenses that could have been presented under the old Divorce Law. The only effect of the transfer would be to add issues to the action, not to foreclose any. Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981).

The order below, being interlocutory, is appealable only if made so by statute. Reynolds Metals Company v. Berger, supra. No such statute has been cited to us, nor has independent research disclosed one. Accordingly, the appeal must be quashed.

Appeal quashed.

      . The Act of April 2, 1980, P.L. 63, No. 26, § 101 et seq., eff. in 90 days; 23 P.S. § 101 et seq. (Supp. 1981-82).

      . For edification purposes, we note that an order granting an application that a pending action proceed under the new Divorce Code is interlocutory, whereas an order denying an application that an action proceed under the new Divorce Code is immediately appealable as a final order. See Gordon v. Gordon, supra; Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981).

      . The Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 10 et seq. (repealed).


author: WATKINS, Judge: CAVANAUGH, Judge,

text:
    443 A.2d 316
    Russell M. JENKINS and Ethel V. Jenkins v. Gerald BLANCHFIELD, Tracy Passerotti and Frank Schwabenbauer, Supervisors of Harborcreek Township, Appellants.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1979.
    Filed March 12, 1982.

      Eugene J. Brew, Jr., Erie, for appellants.
    Howard N. Plate, Erie, for appellees.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Erie County, and involves defendant-appellants’ appeal from an order of the court below which denied their motion to open a default judgment entered against them by the plaintiffs.

Plaintiffs, husband and wife, owned three vacant lots in Harborcreek Township, Erie County, Pennsylvania. On May 3,1972, the defendants, supervisors of the township, adopted a resolution reserving the plaintiffs’ three lots for use in conjunction with a planned Y.M.C.A. project and denied plaintiffs’ application for a building permit for the lots. On April 30, 1973, the East Erie Suburban Recreation and Conservation Authority filed a Declaration of Taking relative to plaintiffs’ three lots. Eminent Domain proceedings were commenced and a Board of View ultimately awarded plaintiffs $28,000 for the lots. Plaintiffs’ appealed the viewers’ award to the Common Pleas Court of Erie County but subsequently settled the matter prior to the trial.

On February 24,1976 plaintiffs filed the instant action in the Court of Common Pleas of Erie County by initiating a Complaint in Trespass against the defendants who are the township supervisors. The suit is for damages allegedly suffered by plaintiffs due to the May 3, 1972 resolution reserving plaintiffs’ lots for the planned Y.M.C.A. project for the period May 3,1972 up until the date of the Declaration of Taking in April, 1973. The complaint was served on two of the supervisors personally by the Sheriff of Erie County on February 26, 1976. The third complaint was served upon Fred McClurg, Secretary of the township,, in the name of the third supervisor on the same date. No responsive pleading was filed to the complaint and on March 26, 1976 the plaintiffs’ attorney filed a Praecipe for Judgment with the Prothonotary of Erie County, requesting judgment for failure to appear within twenty (20) days from the date of service of the complaint. Plaintiffs’ attorney failed to serve any notice of the complaint or the entry of the default judgment on the solicitor for the township who was also the authority’s solicitor. Plaintiffs’ attorney also failed to provide notice of his intent to enter a default judgment to the township. Plaintiffs’ attorney had represented them throughout the condemnation proceedings, which were extensive and had involved an appeal to the Commonwealth Court, and was aware of the identity of the township solicitor and of the fact that he was also the authority’s solicitor.

On July 14, 1976, plaintiffs’ attorney advised the township solicitor that the time had come to prepare for the trial of the case on the issue of damages. This was the first notice he had of the suit. On July 16, 1976, the township filed a Petition to Open the Default Judgment plaintiffs had taken against the defendants. After depositions were taken of the three defendants, the township secretary, and the solicitor, the court handed down an order on March 14, 1979 which dismissed the defendant’s petition to open the default judgment. Defendants took this appeal.

In general for the court to exercise its discretion and open a default judgment three requirements must be shown:

(1) The petition to open the default judgment must be filed promptly;
(2) The failure to appear and file a timely answer must be reasonably explained or excused; and
(3) A defense on the merits of the case must be shown to exist.

Schutte v. Valley Bargain Center, 248 Pa. Superior Ct. 532, 375 A.2d 368 (1977). In trespass actions a meritorious defense to the action is not a prerequisite to the opening of a default judgment although it is an important factor to be considered if the other equities are unclear. Schutte, supra. The court below found that in our case the petition to open the default judgment, although filed promptly after the township solicitor became aware of the suit, was not filed promptly after the suit was begun. It also found that the defendants had not shown any reasonable excuse for not answering the suit promptly. It is clear from the plaintiffs’ complaint that the suit was brought against the defendants in their capacities as supervisors of the township. Two of the supervisors were served personally by handing them copies of the Complaint. The third supervisor was served by handing a copy of the Complaint to the township secretary. The township secretary thought he sent a copy of the Complaint to the township solicitor but the solicitor never received it. The two supervisors who were served personally testified that they had assumed that the matter had been addressed. However, a review of their testimony reveals no good reasons justifying such an assumption. We agree with the court below’s finding to the effect that the petitioners demonstrated no valid reason for their inaction in addressing this matter. Appellants cite several cases wherein it was held that “clerical error” or “errors of counsel” were sufficient reasons for the court to open a default judgment. See Scott v. McEwing, 337 Pa. 273, 10 A.2d 436 (1940); Johnson v. Yellow Cab Co. of Pa., 226 Pa. Superior Ct. 270, 307 A.2d 423 (1973). However, in Tice v. Nationwide Life Insurance Co., 253 Pa. Superior Ct. 118, 384 A.2d 1257 (1978), we held that a bald allegation that counsel had erred by not addressing a pleading because of “pressing demands” upon his time was not sufficient grounds for us to reverse the court below for its refusal to open a default judgment. In the above-mentioned cases we held that we would reverse a lower court’s decision regarding the opening of a default judgment only for an abuse of discretion.

Although we agree with the lower court’s analysis of the issue concerning the existence of a reasonable excuse for not addressing the Complaint in a timely manner we also note that Rule 300 of the Erie County court rules require a party to serve copies of all “papers” filed in any case, “other than the Writ or Complaint by which an action is commenced, or other original process” upon all other parties to the litigation or their attorneys of record within 48 hours after filing of same. Appellants argue that since the plaintiffs never served them with a notice of the intention to take a default judgment nor with a copy of the entry of the default judgment itself that we should hold that the judgment should be opened because the plaintiffs did not conform to the local rules of court in taking the default judgment and then failing to notify appellants of its entry. The lower court found that “notice should have been given to defendants or their solicitor of the intent to enter a default judgment even though the Rules of Civil Procedure do not require notice.” The court then cited Brooks v. Surman, 262 Pa. Superior Ct. 369, 396 A.2d 799 (1979), a case in which this Court reversed a lower court for refusing to open a default judgment stating as follows:

“We note in closing that once again appellees’ counsel failed to give any notice to appellants of an intent to enter a default judgment. Although the Rules of Civil Procedure do not contain a notice requirement, we have repeatedly chastized counsel for failing to accord that courtesy. In Silverman v. Polis, 230 Pa.Super. 366, 370-71, 326 A.2d 452, 454-55 (1974), Judge Cercone wrote for a majority of this court:
‘One very frequent element in the sets of circumstances of cases where a default judgment has been upheld is notice to opposing counsel of the intent to enter a default judgment. Conversely, the lack of such notice is frequently singled out as an important factor justifying the opening of a default judgment. [Citations omitted.]
. . . [Attempts to utilize every niggling procedural point for maximum advantage demean the legal profession, reducing its procedures to a vulgar scramble. No doubt it is for this reason that in so many cases, notice of intent to take a default judgment, or the lack thereof is properly made a significant factor in reaching a just decision. [Footnote omitted].’
“The fact that no notice was given, combined with the lack of any prejudice to appellee, further substantiates our decision to reverse the court below.”

Despite its citing of Brooks the court below held that it didn’t believe that “lack of notice standing alone justifies opening a default judgment.” In our case, however, there is more than a mere lack of notice of an intention to open a default judgment. Here there is an apparent violation of Rule 300 of the local rules of court. Nowhere in its opinion does the court below discuss the violation of the rule by plaintiffs although the court did find that the defendants did not file their petition to open in a timely manner after the entry of the default judgment. The solicitor did, however, file the petition to open the default judgment two days after plaintiffs’ counsel had advised him of its existence. Had plaintiffs’ counsel abided by the local rules of court by notifying defendants’ solicitor of the existence of the default judgment within 48 hours of its entry it is probable that the petition to open would have been filed promptly. Although, this would not necessarily excuse the defendants for the careless manner in which they handled the Complaints we are reluctant to reward a party who violates rules of court to the disadvantage of other parties to a proceeding. Because the court below did not discuss the issue of the plaintiffs’ violation of the local rule and because this violation had a direct bearing on the timeliness of defendants’ petition to open we are reversing the order of the court below refusing to open the default judgment and remanding the matter to the court below in order to give the court an opportunity to address itself to the issue regarding the plaintiffs’ violation of the local rule. The court below may take additional testimony if it believes that such would be helpful in addressing this issue.

Order reversed and remanded.

PRICE, J., concurs in the result.

CAVANAUGH, J., files a dissenting statement.

CAVANAUGH, Judge,

dissenting:

I would affirm the order of the lower court denying the appellant’s petition to open the judgment.


author: O’KICKI, Judge:

text:
    443 A.2d 320
    CLUSTER HOUSE, INC., Appellant, v. Sherman L. REID.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1979.
    Filed March 12, 1982.

      Germaine Ingram, Philadelphia, for appellant.
    Joseph P. Lynch, Norristown, for appellee.

      Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge JOSEPH F. O’KICKI, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   O’KICKI, Judge:

The issue in this case is whether the Trial Court abused its discretion in ordering a default judgment to be opened. Appellant, Cluster House, Inc., a not-for-profit corporation, leased a home from Reid’s predecessor. Lessee deposited $380 as security for the use of the premises.

Lessee, after vacating the premises, filed suit in assumpsit before a District Justice of the Peace for the return of the security deposit, damages for retention of the security deposit and unpaid rent.

After a lengthy and extensive hearing, judgment was entered for Lessee. Lessor appealed. Lessee filed its Complaint; approximately 27 days thereafter, Lessee filed its praecipe for judgment for failure of the Lessor to answer within 20 days.

A petition to open a default judgment is an appeal to the equitable discretion of the court and should be exercised only when three factors coalesce:

1. The petition to open must be filed promptly.
2. The failure to appear or file a timely answer must be excused;
3. The party seeking to open the judgment must show a meritorious defense; Ruggiero v. Phillips, 250 Pa.Super. 349, 378 A.2d 971 (1977).

In the case at bar, Lessor did file a timely petition to open judgment. The default judgment was entered July 24, 1978, and the petition to open was filed seven days later, July 31, 1978. See: Quaker Transit Company, Inc. v. Jack W. Blumenfeld and Company, 277 Pa.Super. 393, 419 A.2d 1202 (1980), in which a petition to open judgment filed fourteen days after entry of the default judgment was held to be timely filed.

Did Lessor-Appellee set forth a reasonable explanation for failure to file an Answer within the required twenty-day period? Some confusion exists in the case at bar concerning communications between the attorneys. The briefs of both counsel indicate that Appellant-Lessee was represented by three or four different attorneys during these proceedings.

However, considering all of the circumstances, it is reasonable to assume the Court below, in exercising its equitable discretion, may have determined that the confusion surrounding the case concerning attorney representation was a sufficient excuse to permit opening of the default judgment. See: Johnson v. Yellow Cab Company of Philadelphia, 226 Pa.Super. 270, 272, 307 A.2d 423, 424 (1973) wherein it was stated:

Errors of counsel ... or clerical error, which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment.

Further, as stated in Ruggiero, supra, 250 Pa.Superior Ct. at 354-355, 378 A.2d 971 quoting from Silverman v. Polis, 230 Pa.Super. 366, 370, 326 A.2d 452, 454 (1974):

One very frequent element in the sets of circumstances of cases where a default judgment has been upheld is notice to opposing counsel of the intent to enter a default judgment. Conversely, the lack of such notice is frequently singled out as an important factor justifying the opening of a default judgment.

It is admitted by counsel for Appellant-Lessee and the Trial Court found that, “It is a matter of custom and professional courtesy among the attorneys who practice before this Court that default judgments will not be entered without notice to opposing counsel.” (Opinion, p. 3; Reproduced Record p. A-5). This professionalism is patently apparent in this case where the parties had been litigating, corresponding and hopefully engaging in rational settlement negotiations.

The third element necessary to open a default defense requires the petitioner to show a meritorious defense. The record proves that the Appellee met his obligation under 68 P.S. § 250.512. The deposition of the Vice-president of the Board of Cluster House, Inc., states at p. 6:

Q: There is no question in your mind, is there, that a claim of damages was received from Mr. Reid within thirty days after termination of his lease?
A: No, there is no question in my mind.

The length of litigation, the dispute concerning physical damages, and the preliminary encounter at the District Justice hearing—clearly indicated that a meritorious defense exists—though not proved.

The Trial Court did not abuse its discretion or commit any error of law. Its opinion supports the profession of law, not necessarily the sharp business of law.

Affirmed.

SPAETH and CAVANAUGH, JJ., concur in the result.


author: SPAETH, Judge:

text:
    443 A.2d 322
    COMMONWEALTH of Pennsylvania v. Frederick CANNON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 5, 1981.
    Filed March 19, 1982.
    Petition for Allowance of Appeal Denied June 30, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and CAVANAUGH, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for attempted burglary and criminal trespass. Appellant argues that the evidence was insufficient to sustain either of his convictions. We have concluded that the evidence was sufficient to sustain the conviction of attempted burglary, but insufficient to sustain the conviction of criminal trespass. We therefore affirm the judgment of sentence for attempted burglary and vacate the judgment of sentence for criminal trespass.

In deciding the sufficiency of evidence, we must first accept as true all the evidence upon which the trier of fact could properly have based the verdict, and then ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974); Commonwealth v. Petrisko, 442 Pa. 575, 579-89, 275 A.2d 46, 49 (1971). However, guilt must be proved and not conjectured. Commonwealth v. Wilson, 225 Pa.Superior Ct. 513, 312 A.2d 430 (1973). So regarded, the evidence may be summarized as follows.

Minnie Jaffe lived with her husband at 1611 Pine Street, Philadelphia. The house had a back yard, about 12 feet deep. There was no furniture in the yard; only a central air conditioner and some plants. The yard was enclosed by a fence 10 or 11 feet high, with a door that opened onto an alley, which runs parallel to Pine Street and leads to Smedley Street, which is at right angle to Pine Street. On June 28, 1977, at about 3:55 a. m., Mrs. Jaffe heard noises in the alley, like the “[rjattling of a trash can.” N.T. 10. She was in her bedroom at the back of the house, half awake. After a few minutes, she heard the door in the fence open. She jumped out of bed and looked out into the back yard. It was very dark in the yard and all she could see was the door in the fence standing open; she could see that because light from the alley came through the open door. The door had been locked. She turned on her light and called the police, who arrived “almost immediately.” N.T. 11.

Officer Vincent Monacelli testified that he was among the police who responded to Mrs. Jaffe’s call. He drove east on Pine, made a left turn onto Smedley, and went about 50 feet to where the alley in back of the Jaffe house intersects with Smedley. He got out of his car and saw appellant “coming out of the rear yard door at 1611 Pine Street,” two houses away from where he stood. N.T. 20, 22-23. Assisted by other officers, he took appellant into custody. He then examined the door in the fence and found the lock “knocked off the hinges” with wood splinters lying around. N.T. 20. He did not find “anything that might be called a tool” either on appellant or in the area. N.T. 23-24.

Appellant testified that he was walking home, intoxicated, on Smedley Street. He denied walking in the alley or being in the Jaffe yard. He said that when he was arrested, he was walking on Smedley, past the alley, towards Pine. N.T. 32-33.

1
The crime of burglary is defined as follows:
A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
18 Pa.C.S. § 3502(a).
The crime of attempt is defined as follows:
A person commits an attempt when, with the intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. § 901(a).

The Commonwealth therefore had to prove two distinct intents on the part of appellant: the intent to enter “a building or occupied structure, or separately secured or occupied portion thereof,” and the intent to commit a crime after entering. See Commonwealth v. Morgan, 265 Pa.Superior Ct. 225, 401 A.2d 1182 (1979); Commonwealth v. Jacobs, 247 Pa.Superior Ct. 373, 372 A.2d 873 (1977). Appellant contends that the Commonwealth failed to prove either intent.

Intent may be proved by direct evidence or inferred from circumstantial evidence. Commonwealth v. Morgan, supra; Commonwealth v. Madison, 263 Pa.Superior Ct. 206, 397 A.2d 818 (1979). Here, the direct evidence was appellant’s testimony as to his intent. However, it was the responsibility of the lower court, which heard the case without a jury, to appraise that testimony, and it is apparent that the court rejected it. The question, therefore, is whether the court was justified in inferring appellant’s intent from the circumstantial evidence.

It is plain that the court could find that appellant had forcibly entered the Jaffe back yard. Appellant argues, however, that the court could not find that he entered the back yard in order to enter the Jaffe house:

Nothing about entering the yard to a house necessarily connotes an intent to enter the house itself. Certainly, one might enter for a myriad of reasons (to relieve oneself, to sleep in an unexposed place, to see if there was anything to be taken from the yard) with no design to attempt the far more serious and dangerous breaking into a private home. In this case, moreover, the requisite intent is persuasively negated by Mr. Cannon’s decision to leave the yard and return to the street without any attempt to enter the residence.
Brief for Appellant at 11-12.

While this argument has some force, we are not persuaded by it.

Appellant did not just enter the yard; he broke in through a locked gate under cover of darkness. We think the lower court could infer that appellant would not have gone to such extremes to seek entry for just any of a “myriad of reasons.” Moreover, appellant did not ° testify that he had entered the yard for an innocent purpose; he denied being in the Jaffe yard at all. While nothing could be inferred from appellant’s silence had he not testified, the lower court could infer from the fact that he testified falsely that his true purpose in entering the yard was an illicit one, which he wished to conceal. Finally, the yard was small; once the door to it was opened, it would have been apparent that it contained only the central air conditioner and some plants— not the sort of thing one enters a yard to take away. We think these facts support a reasonable inference that in entering the yard, appellant intended to cross to the house, enter it, and once inside, commit the crime of theft.

In Commonwealth v. Morgan, supra, we had to make a similar decision. There, the complainant was awakened by his doorbell ringing. He saw the defendant outside but did not respond or otherwise let it be known that he was at home. The defendant again rang the bell, and after receiving no answer, went to the back of the house. Upon hearing his back door rattle, the complainant called the police, who, in a matter of minutes, came to the house and found the defendant cutting a hole through the back door with a wire cutter. Id. 265 Pa.Superior Ct. at 232-33, 401 A.2d at 1185. We concluded that a jury could properly infer from these facts that the defendant intended not only to break into the house, but also to commit theft once inside. We reasoned:

The incident involved a residence, which one ordinarily expects to contain items of value that can be removed by a single individual without the use of special tools. See Commonwealth v. Madison, supra; Commonwealth v. Brown, 226 Pa.Superior Ct. 172, 313 A.2d 290 (1973) (SPAETH, J. dissenting). Furthermore, appellant tried to determine whether the residence was occupied before attempting entry, which suggests that his intent was to commit theft, rather than some other crime requiring the presence of a victim. Commonwealth v. Madison, supra. Similarly, appellant acted under cover of darkness, but early on a summer evening, when he could conclude from the lack of response to his ring that the occupants of the residence were away, which would allow him to pursue his task without interruption.
Id., 265 Pa.Superior Ct. at 236, 401 A.2d at 1187.

Without question, the evidence in Commonwealth v. Morgan, supra, was stronger than was the evidence here. There was no evidence that appellant had in any way tampered with the back door to the Jaffe house—so far as appears, he never reached it—and no tool, such as a wire cutter, was found. Still, we think there was enough evidence. The lower court might have reasoned as follows:

When Mrs. Jaffe heard a sound like the rattling of a trash can, she continued to lie in her bed. Appellant may have believed that when rattling a trash can evokes no response from a darkened house at 3:55 a. m., the house is empty. Appellant’s action of breaking the lock off the door in the fence, splintering the wood, is consistent with such a belief. It was only after appellant had entered the backyard that Mrs. Jaffe turned on her light and called the police. When he saw the light, appellant must have realized that the house was not unoccupied, and must at least have suspected that his entry into the back yard had been detected. Therefore, instead of proceeding to the back door of the house and trying to enter the house, he left—only to walk into the police.

2

There are two distinct crimes of criminal trespass. The more serious is trespass of a building or occupied structure. It is defined as follows:

(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or
(ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.
(2) An offense under paragraph (l)(i) is a felony of the third degree, and an offense under subparagraph (l)(ii) is a felony of the second degree.
(3) As used in this subsection:
“Breaks into.” To gain entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access.
18 Pa.C.S. § 3503(a).

The less serious is defiant trespass. It is defined as follows:

(b) Defiant trespasser.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(i) actual communication to the actor; or
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders.
(2) An offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. Otherwise it is a summary offense.
18 Pa.C.S. 3503(b).

Appellant was charged with and convicted of trespass of a building or occupied structure; he was not charged with defiant trespass. Appellant argues that the evidence was insufficient to support a finding that he broke into “any building or occupied structure or separately secured or occupied portion thereof.”

It is plain that the evidence that appellant broke into the Jaffe back yard was insufficient to show that he broke into a “building or occupied structure.” A yard is not a “building.” Section 3501 of the Crimes Code defines “occupied structure,” as the term is used in regard to the crimes of burglary and criminal trespass, to mean “[a]ny structure, vehicle, or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present.” 18 Pa.C.S. § 3501. A yard is not a “structure,” and the evidence is that the Jaffe yard was neither a “place adapted for overnight accommodation of persons” nor a place for “carrying on business.”

The Commonwealth argues, however, that the phrase “separately secured or occupied portion thereof” provides the statutory proscription against appellant’s conduct. According to the Commonwealth, the fenced-in yard was “a separately secured portion” of the Jaffe house. This argument is without merit, for it seeks to expand the definition of “occupied structure” in a manner clearly not intended by the legislature. The provision regarding criminal trespass was taken from the Model Penal Code. See Model Penal Code, Proposed Official Draft § 221.2. The Commentary to the Model Penal Code refers us to the Commentary on burglary for an understanding of what constitutes “a separately secured portion” of a building. See Model Penal Code § 221.2 T.D. 11 at p. 67, referring to Model Penal Code, § 221.1, T.D. 11. The Commentary states:

The provision as to separately secured or occupied portions of buildings and structures takes care of the situation of apartment houses, office buildings, steamships with many private cabins, etc., where occupancy is by unit. It is the unit rather than the structure which must be safeguarded, even against the occupants of other units in the same structure.
Id. § 221.1, T.D. 11, p. 59 (footnote omitted).

Further evidence that the legislature did not intend to include breaking into a fenced-in yard within the proscription of criminal trespass of buildings is the fact that such conduct is specifically proscribed by the provisions regarding defiant trespass. Had the Commonwealth so charged, appellant clearly could have been found to be a “defiant trespasser,” for, “knowing that he [was] not licensed or privileged to do so,” he entered a place “as to which notice against trespass [was] given by . . . fencing or other enclosure manifestly designed to exclude intruders.” 18 Pa.C.S. § 3503(b)(l)(iii). When one statute specifically proscribes certain conduct, then another general statute carrying a more severe punishment will be held inapplicable, for we assume that the legislature intended the specific statute to control. See generally, La Fave and Scott, Criminal Law, § 10 (1972).

The judgment of sentence for attempted burglary is affirmed. The judgment of sentence for criminal trespass is vacated, and as to that offense, appellant is discharged.

      . Because of this disposition we do not reach appellant’s additional argument that “[s]ince the evidence discloses that both offenses were committed by the same act, , it was improper to impose separate terms for both of them.” Appellant’s Brief at 16.

      . We see no need tó remand for resentencing on the attempted burglary conviction. Since the sentences were concurrent, it is apparent that a remand would only result in re-imposition of the same sentence. Commonwealth v. Eberts, 282 Pa.Superior Ct. 354, 422 A.2d 1154 (1980); Commonwealth v. Guenzer, 255 Pa.Superior Ct. 587, 389 A.2d 133 (1978).


text:
    443 A.2d 327
    In the Interest of Treva STOVER. Appeal of Treva STOVER.
    Superior Court of Pennsylvania.
    Submitted Feb. 25, 1981.
    Filed March 19, 1982.

      Dennis C. Pfannenschmidt, Assistant Public Defender, Bellefonte, for appellant.
    Charles A. Schneider, Solictor, Bellefonte, for participating party.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   SPAETH, Judge:

This appeal is from an order recommitting appellant, a mentally retarded woman in her middle 50’s, to Laurelton Center for a period not to exceed one year. The appeal was not submitted to us for disposition until after the one year period had expired. The evidence shows that appellant was properly subject to some form of commitment. It does not show that commitment to Laurelton Center was proper, but since the period of the commitment has expired, as to that we are unable to give any relief. Therefore, to the extent that appellant challenges her commitment, we affirm, but to the extent that she challenges her commitment to Laurelton, we find her appeal moot.

Appellant has been retarded since birth. In the early 1940s her family placed her in the Laurelton State School and Hospital. She remained there until 1962, when she went to live with the Stover family as a housekeeper. After Mr. Stover’s wife died, he and appellant were married. They lived together, apparently without incident, until the middle 1970s.

In April 1975 appellant was referred to the Base Service Unit of Centre County by the Pennsylvania State Police, who suspected appellant of having had some part in setting two fires that had occurred in the area. The Base Service Unit determined that appellant did not need its assistance. About a year later appellant was arrested by the State Police on a charge of arson, but the charge was dropped when she was admitted to Hollidaysburg State Hospital. After a brief stay at Hollidaysburg, appellant went to live at the Group Skills Home in State College. While she was there Mr. Stover died. A series of small fires occurred at the Group Home. Appellant was suspected of setting them, and was ordered to undergo a 30 day psychiatric evaluation at Danville State Hospital in December 1976. After her release from Danville, appellant returned to the Group Home, but soon another suspicious fire occurred and she was asked to leave.

From February 1977 until June 1978 appellant lived in a mobile home in State College, and from June 1978 until January 1979 at the Bush House Hotel in Belief onte. In January 1979, after another suspicious fire, she was involuntarily committed to the Laurelton Center for 90 days under the mental retardation provisions of the Mental Health and Mental Retardation Act of 1966, Act of Oct. 20,1966, Special Sess. No. 3, P.L. 96, as amended, 50 P.S. § 4101 et seq. After her release from Laurelton, she went to live at the Pine Ridge Manor in Philipsburg. She remained there until the end of October 1979, when she was asked to leave, again because of the occurrence of suspicious fires. On October 31, 1979, the lower court ordered appellant involuntarily committed to Laurelton for 90 days under the 1966 Act, and on February 1, 1980, ordered her recommitted to Laurelton for a period not to exceed one year. This appeal is from the order of February 1, 1980.

Appellant’s first argument is that the lower court erred by referring only to the provisions of the Mental Health and Mental Retardation Act of 1966; she maintains that the court should have also referred to the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143, 50 P.S. § 7101 et seq., and to the regulations implementing it.

We find no merit in this argument. Section 102 of the Mental Health Procedures Act, 50 P.S. § 7102, declares that mental retardation by itself is not deemed to constitute mental illness. Section 103 of Act, 50 P.S. § 7103, states that the Act applies to the treatment of the mentally ill; this statement is repeated in the regulations, 55 Pa.Code §§ 7100.102, 7100.103(a). Thus, by their own terms, the 1976 Act and its regulations did not apply to appellant.

Appellant argues that the provisions of the 1966 Act have been modified as a result of Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa.1976). While this is true, appellant has failed to acknowledge the regulations promulgated in response to Goldy v. Beal, supra. These regulations were codified at 55 Pa.Code § 7500.1 et seq. and were published at 6 Pennsylvania Bulletin 2883-84 (Nov. 13,1976). Section 7500.4 provides that a person shall be determined to be a mentally retarded person in need of residential placement only upon the following findings:

(T) The person is impaired in adaptive behavior to a significant degree and is functioning at an intellectual level two standard deviation measurements below the norm as determined by acceptable psychological testing techniques;
(2) The impairment and the resultant disability were manifested before the person’s 18th birthday and are likely to continue for an indefinite period; and
(3) The person, because of his retardation presents a substantial risk of physical injury to himself or physical debilitation as demonstrated by behavior within 30 days of the petition which shows that he is unable to provide for, and is not providing for his most basic need for nourishment, personal and medical care, shelter, self-protection and safety and that provision for such needs is not available and cannot be developed or provided in his own home or in his own community without residential placement.
55 Pa.Code § 7500.4.

The evidence before the lower court shows that appellant was such a person. She was therefore properly subject to some form of commitment.

Appellant’s second argument is that the evidence fails to show that she was properly recommitted to Laurelton Center as the least restrictive alternative available. She says:

[Appellant] is not arguing that she is fully capable of independent living; all the witnesses agreed that she is not. Nor is she arguing that appellee’s evidence of fire setting should be ignored in arriving at a decision in this case. Her position is that before she can be committed to a State Hospital, the Court must consider all the relevant factors in her case. Alleged fire setting should be considered, as should her habilitative needs—neither should operate to the exclusion of the other. Her habilitative needs must be met in an environment consistent with the safety of appellant and the public.
It is not an all or nothing proposition, as appellee seeks to make it; certainly a program exists or can be fashioned that meets both of these worthy goals. Unfortunately, in this case we do not know for sure because appellee refused to even try.

Brief for Appellant at 29 (emphasis in original).

We agree with appellant that she is entitled to placement in the least restrictive alternative available. This is so as a matter of state law, In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), without regard to any rights afforded by federal law or the state or federal constitutions. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).

In the opinion filed in support of its order recommitting appellant, the lower court did not dispute appellant’s claim that she is entitled to placement in the least restrictive alternative available. Rather, the court found that Laurel-ton Center was the least restrictive alternative available. The court pointed out that the evidence was that appellant had set fires in every setting she had been placed in other than Laurelton but had not set fires at Laurelton. “Thus,” the court concluded, “it is clear that Laurelton is the environment that least infringes on her personal liberty, and is also consonant with her abilities, need for habilitation and treatment.” Slip op. 5.

This reasoning assumes that there was no setting that in its degree of restrictiveness was in-between Laurelton and the others in which appellant had been—in other words, a placement not so restrictive as Laurelton but still restrictive enough so that appellant would not set fires. This assumption, however, is not supported by the evidence, which does not show that there was no such in-between placement available to the court. It was, moreover, important to determine whether such an in-between placement was available, for some of the evidence was to the effect that Laurel-ton was not the proper placement for appellant.

The petition for appellant’s recommitment was brought by Mildred Cornelison, the mental retardation coordinator for Centre County. In the petition she listed Dr. Larry Y. Gilfert as the physician most familiar with appellant. In his Certificate of Physician, made part of the petition, Dr. Gilfert stated that in his professional opinion appellant did not present a substantial risk of physical injury to herself or of debilitation, and did not require residential placement. By way of contrast, the certificate made part of the original commitment petition 90 days earlier had been completed by Dr. Michael R. Bartos, and he had stated that in his professional opinion appellant did pose a substantial risk to herself and did require residential placement.

At the recommitment hearing appellant produced the testimony of Dr. Shelby Powers, superintendent of Laurelton Center, and Sue Frederick, cottage manager of the cottage in which she lived. Both of them testified that Laurelton was not an appropriate placement for appellant because, among other considerations, it was so highly structured that it did not provide her the opportunity to exercise and maintain the independent living skills she did possess. Dr. Bartos did testify in support of appellant’s recommitment. However, on cross-examination he indicated that he had never been to Laurelton and that his only recent contact with appellant had been a 20 to 30 minute interview the previous day. Based on that interview and his earlier contacts he submitted some kind of written evaluation to the court, but it was not made part of the record and we have not seen it.

We do not know to what extent the lower court took into account Dr. Gilfert’s certificate and the testimony of Dr. Powers and Ms. Frederick, for the court in its opinion did not allude to this evidence. In these circumstances, we should ordinarily remand for further proceedings. Perhaps the court discounted Dr. Gilfert’s certificate and the testimony of Dr. Powers and Ms. Frederick; it was not bound to accept the certificate or the testimony. Or perhaps there was no in-between placement available to the court. Remand for findings on these matters, however, would be pointless; since the period of appellant’s commitment to Laurelton has expired, it could afford her no relief.

So far as the appeal challenges appellant’s recommitment, the order of the lower court is affirmed. So far as the appeal challenges appellant’s recommitment to Laurelton Center, the appeal is moot.

      . Appellant has suggested in her brief that the real reason that the Centre County Mental Health/Mental Retardation Unit wanted her in Laurelton Centre was that it was unable or unwilling to pay for her placement in a more appropriate setting outside of Centre County. Brief for Appellant at 28. She supports this claim with copies of various letters. Id. Appendix. None of these letters is part of the record. We therefore give them no weight.

      . It is important that cases such as this be handled on an expedited basis. This case is a good example of what happens when that is not done. The lower court’s order was dated February 1, 1980. Appellant filed exceptions, which were disposed of by the lower court in July. Appellant did not file her notice of appeal until almost the thirtieth day after the lower court’s order was docketed. The record was not filed until October 2, 1980. Appellant’s brief was filed November 10 and appellee’s December 9, by which time only seven weeks of appellant’s period of commitment remained. By the time the case was submitted to this panel for disposition on briefs without oral argument, the period of commitment had expired.
      All of our courts, including both the lower court and this court, are overburdened, so that some delay cannot be avoided. However, upon counsel’s request for expedited treatment and with the cooperation of the parties, it is possible for a case to be handled very quickly when delay will result in irreparable harm or make relief difficult or impossible. See, e.g., Westinghouse Air Brake Division, American Standard Inc. v. United Electrical, Radio and Machine Workers of America, Local 610, 294 Pa. Superior Ct. 407, 440 A.2d 529 (1982); Commonwealth ex rel. Grimes v. Yack, 289 Pa. Superior Ct. 495, 433 A.2d 1363 (1981); K. N. v. Cades, 288 Pa. Superior Ct. 555, 558 n. 2, 432 A.2d 1010, 1012 n. 2 (1981).


text:
    443 A.2d 330
    COMMONWEALTH of Pennsylvania, v. Wilbert GRAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed March 19, 1982.

      Gwanita G. Hester, Assistant Public Defender, Norris-town, for appellant.
    Stanley R. Ott, Sp. Prosecutor, Souderton, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence of burglary. Appellant argues that the evidence was insufficient, and, by new counsel, that trial counsel was ineffective. We have concluded that the evidence was not insufficient, but that appellant’s claim that trial counsel was ineffective has arguable merit. We therefore remand for further proceedings.

-1-

In deciding the sufficiency of evidence, we must first accept as true all the evidence upon which the trier of fact could properly have based the verdict, and then ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974); Commonwealth v. Petrisko, 442 Pa. 575, 579-89, 275 A.2d 46, 49 (1971). However, guilt must be proved and not conjectured. Commonwealth v. Wilson, 225 Pa.Superior Ct. 513, 312 A.2d 430 (1973). So regarded, the evidence may be summarized as follows.

On July 25, 1979, at approximately 5:00 a. m., Peter Gerhard, while sleeping in an apartment above his candy store, was awakened by a loud noise in the rear of his store. He looked out his rear window and saw a man getting off a ladder directly under his window. Because of the angle, Gerhard was able to see only the man’s head, forehead, cheeks, mustache, and nose. TT. 19-21. After watching the man remove a fan from above the door, he went to the store office to telephone the police. However, the telephone was dead, and he returned to the rear window of his apartment, from which he saw the man remove a television set and merchant’s scale from the store building. Id. at 20-22. He also saw that the man was wearing a black T-shirt and white jeans. Id. at 26. Gerhard left the store building by the front door and called the police from a nearby call-box. Id. at 22-23. When he got back to his store, the man had gone but the television set and scale were still by the back door. Id. at 24. While waiting for the police to arrive, Gerhard saw the man he had seen behind his store “duck down [an] alley and start peeking out.” Id. at 25. When the police arrived, moments later, Gerhard looked around, saw the man again, and said to the police, “That’s him. Get him.” Id. at 27-28. The police arrested the man, who proved to be appellant. After being placed under arrest, appellant gave the police an alias. From the time Gerhard first saw the man to the time of appellant’s arrest was eight to ten minutes. Id. at 31.

Appellant’s claim of insufficiency may be summarily dismissed. While it is true that Gerhard did not see appellant’s full face, he saw enough to be sure of his identification.

-2-

In determining whether counsel was effective, we engage in “both an independent review of the record, .. . and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967); see also, Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975). Counsel will be “deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 604, 235 A.2d at 352.

Here, appellant claims that his trial counsel was ineffective in failing to object to the following cross-examination of appellant:

Q. Were you convicted of theft by unlawful taking and theft by receiving stolen property on September 10, 1976 in Philadelphia?
A. On what charge?
Q. The charge of theft by receiving and theft of unlawful taking. Did you plead guilty to that charge in Philadelphia on September 10, 1976?
A. Is that a stolen car incident?
Q. The charge is theft. Did you plead guilty to theft on September 10, 1976?
A. Yes.
Q. You did?
A. Yes.
N.T. at 206-207.

The Commonwealth concedes, as it must, that this cross-examination was improper. A prosecutor has been prohibited since 1911 from conducting such a cross-examination. See Act of 1911, March 15, P.L. 20 § 1. The prohibition of the Act of 1911 remains in the new Judicial Code:

No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation unless:
(1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or
(2) he shall have testified at such trial against a codefendant, charged with the same offense.
1976, July 9, P.L. 586, No. 142, § 2, eff. June 27, 1978. 42 Pa.C.S. § 5918.

The Commonwealth argues, however, that the prosecutor’s misconduct is unimportant because it occurred before a judge sitting without a jury. The argument is without merit. The Supreme Court has made plain that the Act of 1911 must be followed “to the letter,” Commonwealth v. Davis, 396 Pa. 158, 163, 150 A.2d 863, 866 (1959), and that even where the evidence of guilt is “overwhelming,” the prejudice arising from a violation of the Act will not be held harmless and a new trial will be ordered, Commonwealth v. Barron, 438 Pa. 259, 264 A.2d 710 (1970). The Act of 1911 and the succeeding prohibition in the Judicial Code apply to any criminal “trial”—not only to trial by jury. Therefore, we may be confident that if appellant’s trial counsel had objected to the cross-examination, the trial judge would have recognized the objection as meritorious.

But the mere fact that counsel fails to make a meritorious objection does not demonstrate his ineffectiveness. Specifically, it is easy to imagine circumstances in which counsel, knowing that he can on objection obtain a new trial, nevertheless does not object because he has a reasonable basis for believing that his client will be better served by proceeding with the trial then underway. We do not say that that was why appellant’s trial counsel did not object. Perhaps he simply did not recognize the impropriety of the cross-examination—as apparently the prosecutor did not. When we can not tell from the record whether counsel’s conduct reflected a reasoned strategic choice or ineptitude, we must remand for a hearing. Commonwealth v. Sherard, 483 Pa. 183, 194, 394 A.2d 971, 977 (1978).

The judgment of sentence is vacated and the case remanded for an evidentiary hearing at which the lower court shall determine trial counsel’s effectiveness. If the court finds that counsel was effective, it shall reinstate the sentence. If the court finds that trial counsel was ineffective, it shall grant appellant a new trial. We do not retain jurisdiction. Any further appeal must be from such order as the lower court enters after the evidentiary hearing.


author: CAVANAUGH, Judge:

text:
    443 A.2d 333
    Elaine P. DENNY, Appellant, v. Marjorie M. CAVALIERI, a/k/a Marjorie Maree McCall, a/k/a Marjorie M. Rudolf and William Cavalieri.
    Superior Court of Pennsylvania.
    Argued May 6, 1981.
    Filed March 19, 1982.
    Petition for Allowance of Appeal Denied Sept. 17, 1982.

      Donald Strumpf, Bryn Mawr, for appellant.

      Marjorie and William Cavalieri, in pro. per.
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   CAVANAUGH, Judge:

In January, 1978, the appellant, Elaine P. Denny, filed a complaint in equity against the appellees, Marjorie M. Cavalieri and William Cavalieri. The complaint described in detail the lengthy relationship between the appellant and appellees which began in 1968 and continued until the filing of the complaint some ten years later. At the time the parties became friends the appellant was a widow approximately twenty-six years of age. The complaint alleges that beginning in 1973 the appellant became very dependent in financial matters upon the defendants, Mr. and Mrs. Cavalieri. The appellant remarried on February 10, 1973 and the wedding reception was held at the appellees’ house. By this time it is alleged the appellant considered Mrs. Cavalieri her closest personal friend and an indispensable companion. In April of 1973 the appellant and Mrs. Cavalieri went away together to Miami on vacation and during this vacation Mrs. Cavalieri questioned the appellant as to her financial situation. The appellant believed that she had a close confidential relationship with Mrs. Cavalieri and disclosed her finances in full to her. Appellant told Mrs. Cavalieri that she was financially naive and that since the time her late husband, Wayne Denny, passed away that she placed all of her financial matters in the control of a financial advisor, Earl Killian, who had been a friend and partner of her deceased husband.

The appellant disclosed to Mrs. Cavalieri that among her assets was an obligation in the amount of $285,000 owed by the Bishop Nursing Home, Inc. to the appellant. In the spring of 1973 it is alleged that Mrs. Cavalieri told the appellant that Mr. Cavalieri was a financial advisor for wealthy people and that it would be a good idea if he invested appellant’s money for her. Mrs. Cavalieri also insisted that the appellant not tell her financial advisor, Earl Killian, of this suggestion. Thereafter on almost a weekly basis Mrs. Cavalieri suggested to the appellant that her husband become appellant’s financial advisor. It was alleged that in March of 1974 Mrs. Cavalieri became insistent that the appellant invest her money with Mr. Cavalieri. On May 15, 1974, Mrs. Cavalieri came to the appellant’s home and had the appellant write a $10,000 check payable to Mrs. Cavalieri. She then told the appellant that Mr. Cavalieri would be the appellant’s investment advisor from then on and that she should not tell Mr. Killian of the $10,000 investment.

The complaint further alleges that in September, 1974, the appellant and her husband separated and the appellant became even more dependent on Mrs. Cavalieri for comfort and advice. Mrs. Cavalieri continued to insist almost daily that the appellant accelerate the obligation which was owed to her by the Bishop Nursing Homes, Inc. In September of 1974 the appellant had the obligation accelerated to the extent of $85,000 and on September 11, 1974 it is alleged that Mrs. Cavalieri came to the plaintiff’s house and had her write a $50,000 check payable to William Cavalieri. Again, Mrs. Cavalieri stressed to the plaintiff that the plaintiff would benefit and that she should not discuss with Earl Killian the $50,000 payment to the defendants. It is alleged that from May 14, 1974, through September 16, 1976, the appellant gave a total of $135,000 to the appellees and that only about $17,000 was repaid to the appellant. It is further alleged that the “plaintiff believes that the moneys given by her to defendants had been used in part or in whole for the personal benefit of defendants and each of them”. The complaint further alleges:

138. Plaintiff believes that the moneys given by her to defendants have been used in whole or in part for purchase of items of personal consumption for defendants and each of them and for the improvement of defendants’ residence.
139. Plaintiff believes that the moneys given by her to defendants have been used in whole or in part to increase wife-defendant’s equity in defendants’ residence.
140. The representations and actions of defendants and each of them as set forth in this Complaint with respect to plaintiff and to the use of plaintiffs money constitute a fraud.

The prayer of the complaint requested that the appellees, defendants in the court below, be declared trustees ex maleficio under a constructive trust for the benefit of the appellant and that an accounting be directed. The prayer also requested that the appellees be directed to pay punitive damages in the amount of $300,000.

The appellees filed preliminary objections on the ground, inter alia, that the appellant had an adequate remedy at law and requested that the case be certified to the law side of the court. The court below sustained the preliminary objections and dismissed the complaint. It is from this order that an appeal has been taken.

In its opinion in support of the order the court below stated: “The primary reason for the order of the court dismissing the complaint was that the plaintiff has an adequate remedy at law... It is obvious from reading through the complaint that all the plaintiff seeks is a return of her money. That clearly gives rise to a suit in assumpsit and not an equity action.”

We disagree with this analysis of the appellant’s complaint. Appellant is seeking an accounting, a traditional remedy in equity, and is also requesting that the appellees be declared trustees ex maleficio under a constructive trust. A constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Yohe v. Yohe, 466 Pa. 405, 353 A.2d 417 (1976). “Such a trust may arise where there is a breach of confidential relationship by the transferee, or it may arise out of circumstances evidencing fraud, duress, undue influence or mistake.” Chambers v. Chambers, 406 Pa. 50, 54, 176 A.2d 673, 675 (1962). There is no rigid standard for determining whether the facts of a particular case require a court of equity to impose a constructive trust; the test is whether unjust enrichment can thereby be avoided. Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976). See also Scott v. Purcell, 264 Pa. Super. 354, 399 A.2d 1088 (1979).

Pa.R.C.P. 1019(b) requires that fraud be averred with particularity. Nevertheless, the relation of the parties and the inference of fraud may arise from the attendant circumstances. Keehn v. Granite Run, Inc. (Del. County) 73 D. & C.2nd 307 (1976). Further, the pleading of a confidential relationship makes unnecessary the further specification of fraud. Auman v. Auman, 51 Northumberland Legal J. 36 (1978). A fraudulent intention at the time of a transaction can be inferred from the totality of the circumstances surrounding the transaction, including subsequent conduct on the part of the defendant. Stauffer v. Stauffer, supra. We believe that the appellant has alleged sufficient facts which if proven would sustain a cause of action in equity. The complaint alleges the existence of a fiduciary relationship and that the appellees defrauded the appellant and violated their position of confidence. If the facts as alleged are true the appellees would be unjustly enriched if permitted to retain the property which they have obtained under the circumstances set forth. Under the facts alleged the remedy at law is not adequate.

Order reversed and case remanded to the court below to reinstate the complaint in equity.

      . Equity will not attach where there is an adequate remedy at law. Herr Abstract Company v. Vance, 284 Pa.Super. 111, 425 A.2d 444 (1980). Even if the remedy at law were adequate, however, the court below erred in dismissing the complaint. Pa.R.C.P. 1509(c) Provides:
      (c) The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.
      If the objection of adequate remedy at law is raised by the defendant and sustained as valid, the court is given no option. The certification to the law side is mandatory. Goodrich-Amram, 2nd, Vol. 5 page 125. See also Klemow v. Time, Incorporated, 466 Pa. 189, 352 A.2d 12 (1976).


author: WIEAND, Judge:

text:
    443 A.2d 336
    COMMONWEALTH of Pennsylvania v. Thomas SLAVIK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1982.
    Filed March 19, 1982.
    Anne L. Wall, Assistant Public Defender, Williamsport, for appellant.
    Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

Is it a defense to the crime of escape that a prisoner was beaten and threatened by another inmate where the prisoner made no complaint to prison authorities and where, following escape, he remained at large for more than five months without making any effort to surrender or return to custody? The trial court held that under such circumstances neither duress nor necessity was a defense, refused to permit testimony of the beatings and threats, and found Thomas Slavik guilty of escape. We agree and affirm the judgment of sentence.

Appellant had been sentenced on October 16, 1970, following a conviction for murder, and was serving a sentence of confinement at the State Correctional Institution at Muncy. On August 5, 1979, he escaped from custody. He remained at large until January 15,1980, when he was apprehended in Phoenix, Arizona.

He was returned to Pennsylvania, where he waived trial by jury and was tried non-jury on an information charging escape. At trial, his counsel offered to prove that a fellow prisoner had beaten appellant twice and had threatened to kill him a week before his escape. Although given full opportunity to place on the record a complete offer of proof, appellant’s counsel did not offer to show that appellant had ever complained, formally or informally, to prison authorities concerning such matters. Similarly, there was no offer to show that appellant, while at large, had made any attempt to surrender or return to custody. Rather, when arrested in Phoenix for a traffic violation, he was found to have leased an apartment in Scotsdale, Arizona. He told police that he had been planning his escape for two weeks before taking leave of the prison at Muncy.

In Commonwealth v. Stanley, 265 Pa.Superior Ct. 194, 401 A.2d 1166 (1979) the Superior Court held: “Mere prison conditions, even those arising from physical abuse, will not constitute a defense to an escape charge; instead, a prisoner’s proper avenue of redress is through administrative or judicial channels.” 265 Pa.Superior Ct. at 204, 401 A.2d at 1171. Although one member of the Court dissented from this statement, the Court was unanimous when it held that neither duress nor necessity would be a defense to escape unless the prisoner reported to the proper authorities and offered to return to detention immediately upon attaining a position of safety from the condition or threat which initially had prompted his escape. Where evidence of prompt surrender was not included in the offer of proof, the Court agreed, it was not error to refuse to receive evidence of prison conditions.

The Supreme Court of the United States considered a similar issue and, in the context of interpreting the federal crime of escape under 18 U.S.C. § 751(a), held, in United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), that “in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.” Id. 444 U.S. at 412-413, 100 S.Ct. at 635, 62 L.Ed.2d at 592.

These decisions establish unequivocally that in the instant case the evidentiary ruling of the trial judge was correct.

The judgment of sentence is affirmed.

      . Section 5121(a) of the Crimes Code, 18 Pa.C.S. § 5121(a) provides as follows: “A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.”

      . See also: Toll, Pennsylvania Crimes Code Annotated, p. 606, Escape § 5121(c); State v. Dyer, Me., 371 A.2d 1086, 1090-91 (1977).

      . See also: People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974); Johnson v. State, Del., 379 A.2d 1129 (1977).