author: ROBERTS, Judge:

text:
    499 A.2d 666
    Robert SEIBEL, Administrator of the Estate of Deborah G. McCann, Deceased; and All Others Similarly Situated, Appellants, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 30, 1985.
    Filed Oct. 11, 1985.

      Richard C. Angino, Harrisburg, for appellants.
    William T. Barker, Harrisburg, for appellee.
    Before TAMILIA, MONTGOMERY and ROBERTS, JJ.
   ROBERTS, Judge:

Appellant Robert Seibel, administrator of the estate of Deborah McCann, filed a class action complaint seeking work loss benefits under the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. (repealed 1984) for his decedent and for other decedents similarly situated. Appellant now challenges the trial court’s order denying class certification and granting the motion of appellee, Allstate Insurance Company, for summary judgment on appellant’s individual claim. We affirm.

Though the parties disagree about the legal ramifications of some of the facts of this case, the decisional facts are substantially undisputed. Appellant’s decedent was killed in an automobile accident on February 27, 1980. The car in which she was riding as a passenger was insured by appellee, who was promptly informed of the accident. A claim for work loss benefits, however, does not appear to have been made until December 1981. Due to appellee’s inadvertent misrouting of correspondence pertaining to the claim, benefits were not paid to appellant. Consequently, appellant’s counsel filed the present action in June 1982, seeking on behalf of decedent’s estate work loss benefits with interest and counsel fees under each of the two policies covering decedent, and like benefits for similarly situated decedents.

On April 18, 1983, appellee sent appellant a check for $18,425, along with a letter characterizing the sum as an unconditional tender of $15,000 in work loss benefits plus 18% interest from January 10, 1982 until the date of the letter. The letter also expressed appellee’s willingness to pay reasonable counsel fees for this period. In a letter dated April 26, 1983, appellant’s counsel accepted the check for his client “as partial payment for our work loss claim” and indicated that he had prepared a bill for his services in the present action. In September 1983, appellee paid appellant $2500, purportedly in settlement of appellant’s counsel fees claim.

On January 30, 1984, appellant moved, inter alia, for class certification and for partial summary judgment on the issue of appellee’s liability. Appellee subsequently moved for summary judgment as to appellant’s individual claim. While these motions were being filed and decided, a number of petitions to intervene in the class action were filed.

After a hearing, the trial court denied appellant’s motions for class certification and for partial summary judgment and granted appellee’s summary judgment motion in an order dated August 3, 1984. Appellant filed a timely petition for reconsideration of class certification, which was dismissed by the court without a hearing after appellant filed the present appeal from the August 3, 1984 order. The petitions to intervene were subsequently dismissed, also without a hearing.

Appellant raises three issues in support of his contention that the trial court erred in denying certification of his class action and in dismissing his petition for reconsideration: 1) partial settlement of the representative plaintiff’s claim does not render the class action moot; 2) even complete settlement of the representative plaintiff’s claim does not render the class action moot where intervenors are available to replace the representative; and 3) the trial court improperly concluded that appellant failed to prove that two of the requisites of a class action exist in the present case. We need not address the first two issues, since the third provides sufficient reason to uphold the trial court’s denial of certification. Rule 1702 of the Pennsylvania Rules of Civil Procedure establishes the following prerequisites for maintaining a class action:

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class ... and
(5) a class action provides a fair and efficient method
for adjudication of the controversy____

Pa.R.C.P. 1702.

The trial court found that appellant’s allegations failed to satisfy its burden with respect to the numerosity of the class and the capability of the representative plaintiff to assert the class interests. As this court recently observed, “[a] lower court’s order concerning class certification will not be disturbed on appeal unless the court failed to consider the requirements of the rules or abused its discretion in applying them.” Janicik v. Prudential Insurance Company of America, 305 Pa.Super. 120, 127, 451 A.2d 451, 454 (1982). We find no such failure or abuse here.

Appellant’s contention that the trial court erred in concluding that the prerequisites for certification had not been met appears to be based on three grounds: 1) appellee never supplied appellant with data on the number of members in the putative class, though appellant repeatedly requested such data through discovery; 2) the same judge whose order is before us on appeal has recently granted certification in similar cases; 3) appellee, not appellant, had the burden of proof on the issues of numerosity and capability, and failed to produce evidence refuting appellant’s allegations that these prerequisites were met. All three of these arguments are meritless.

The first argument fails because appellee’s refusal to supply data as to the number of class members did not prevent appellant from making appropriate factual allegations in his petition for reconsideration or from supporting those allegations with evidence. Consequently, we cannot view appellee’s refusal as excusing appellant from making this showing in his original certification petition. The second argument also fails because we may not consider what the trial court has done in allegedly similar, but unrelated cases, since we may not base our decision on matters outside the record of the present case. See McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 162, 293 A.2d 51, 57 (1972).

Finally, appellant’s assertion that appellee had the burden of proof on numerosity and capability misstates the law on this issue. The existence of the Rule 1702 prerequisites must be pleaded and proved by the party seeking certification. Janicik, 305 Pa.Super. at 127, 451 A.2d at 454. The class proponent need not set forth separate facts to prove each requirement, but must establish enough facts from which the court can make the necessary determinations as to each requirement. Id., 305 Pa.Superior Ct. at 130, 451 A.2d at 455. Well pleaded factual allegations, if admitted by the opponent, may be considered as evidence by the court in making othese determinations, see id., and factual allegations that are not properly denied by the opponent are deemed admitted, see Pa.R.C.P. 1706; see also Pa.R.C.P. 1029. Once the proponent of the class has made a prima facie showing that the prerequisites of Rule 1702 are met, the burden of producing evidence shifts to the opponent, though the proponent retains the burden of persuasion. Janicik, 305 Pa.Super. at 130, 451 A.2d at 455-56.

Appellant’s complaint, as amended, contains no factual allegations showing that the putative class meets the requirements of Rule 1702; it merely asserts, in conclusory terms, that the requirements of Rule 1702 are met. No affidavits or other documentation were filed with this complaint or with appellant’s certification petition. Nor did appellant produce any evidence at the certification hearing, though the trial court had given appellant the opportunity to postpone the hearing if necessary in order to obtain such evidence. See Trial Court Opinion at 4-5 & n.l. Instead, appellant asked the trial court to take judicial notice, without factual support, “of the number of vehicles insured in Pennsylvania and the number of highway deaths occurring annually.” Trial Court Opinion at 6.

Class certification should be liberally granted, and the trial court may hold the burden of establishing the requisites of Rule 1702 to be more easily satisfied where the underlying facts are undisputed. See Janicik, 305 Pa.Super. at 129, 451 A.2d at 455. We do not believe, however, that this burden may be met by “eonclusory allegations” alone, even where, as here, the class opponent raises no evidence to contradict the class allegations. Id., 305 Pa.Superior Ct. at 140, 451 A.2d at 455. Cf. Rex v. Owens ex rel. State of Oklahoma, 585 F.2d 432, 436 (10th Cir.1978) (some evidence that an ascertainable number of persons are in the class needed to meet numerosity requirement). Here, appellant offered nothing but conclusory allegations to the trial court. Consequently, we find no abuse of discretion in the trial court’s denial of certification.

Appellant’s attempt to challenge the trial court’s refusal of his petition for reconsideration is improper. An order denying reconsideration of a final order is not appeal-able unless the court retains control of the proceedings. E.g., Merrick Estate, 432 Pa. 450, 454, 247 A.2d 786, 787-88 (1968); Provident National Bank v. Rooklin, 250 Pa.Super. 194, 202, 378 A.2d 893, 897 (1977) (en banc). An order denying class certification is final and appealable. Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 226, 348 A.2d 734, 734 (1975). The trial court’s order dismissing appellant’s petition for reconsideration did not retain control over the proceedings. Consequently, we may not consider appellant’s arguments with regard to that petition.

Lastly, appellant contends that summary judgment was improperly entered against him on his individual claim, because material issues of fact were still present in the case. Having examined the record in the light most favorable to appellant, as we are required to do, see Lane v. Schacht, 260 Pa.Super. 68, 74, 393 A.2d 1015, 1018 (1978) (en banc), we are compelled to disagree with appellant.

Appellant’s individual claim was for work loss benefits plus interest on both policies issued by appellee, and counsel fees for prosecuting both the individual claim and the class action. The trial court found that work loss benefits plus interest had been paid in full under one policy, and that any attempt by appellant to recover under the other policy had been foreclosed by law. As for counsel fees, the court found that appellant’s claim for fees pertaining to attempts to recover under the original policy had been settled. Attempts to recover counsel fees for pursuing recovery under the other policy or in the class action, the court concluded, were foreclosed when the court rejected those claims as a matter of law.

Appellant apparently does not contest the court’s conclusion that his claim for work loss benefits plus interest under the original policy was satisfied by the check he accepted through counsel in April 1983. He argues, however, that his acceptance of that check did not preclude pursuit of his individual claim under decedent’s other no-fault policy, or of the class action, or of counsel fees for pursuing the remaining part of his individual claim and the class action. The trial court accepted this argument. However, as we have already concluded, the trial court correctly refused to grant certification. Appellant’s individual claim was also precluded on grounds other than the settlement at the time the court rendered summary judgment.

The trial court based its finding that appellant’s claim for benefits on the second policy was precluded on this court’s decision in Antanovich v. Allstate Insurance Company, 320 Pa.Super. 322, 467 A.2d 345 (1983). That decision has since been affirmed by our Supreme Court. Antanovich v. Allstate Insurance Company, 507 Pa. 68, 488 A.2d 571 (1985).

In Antanovich, administrators of the estates of decedents killed in automobile accidents claimed work loss and other no-fault benefits under all policies on which decedents had paid premiums. See id., 507 Pa. at 71, 488 A.2d at 572. A clause in decedents’ policies prohibited such “stacking” of benefits. See id., 507 Pa. at 72-73, 488 A.2d at 572-73. The Supreme Court held that “the No-Fault Act, since repealed, contains no indication of policy clear enough to void a plain, unambiguous provision in an insurance contract which precludes stacking work loss benefits.” Id., 507 Pa. at 76, 488 A.2d at 575. Consequently, the Court upheld the denial of claims for stacked benefits. Id., 507 Pa. at 72, 488 A.2d at 572. The policy under which appellant seeks to recover contains language identical to the “unambiguous provision” at issue in Antanovich. Thus, the trial court’s conclusion that appellant had no claim for stacked coverage in light of Antanovich may not be disturbed.

With regard to counsel fees, we are unable to discern what other unsatisfied claim could remain to appellant after denial of class certification and preclusion of his individual claim for stacked benefits. Nor does appellant’s brief enlighten us in this regard. Consequently, there is no basis for disturbing the summary judgment.

Appellant having failed to establish entitlement to relief, the trial court’s order must be affirmed.

Order affirmed;

      . No-fault benefits become payable 30 days after the claim is first made. See 40 P.S. § 1009.106(a)(2); see also Hartleb v. Ohio Casualty Co., 305 Pa.Super. 231, 237-38, 451 A.2d 506, 510 (1982). The letter in which appellant, through his counsel, first requested work loss benefits was dated Dec. 11, 1981.

      . ■ Appellant also contends that the trial court erred in rejecting, without a hearing, the third party petitions to intervene. None of the would-be intervenors have joined the present appeal, and no appeals have been filed from the trial court’s denial of the petitions to intervene. Consequently, we doubt appellant has standing to raise this argument. See, e.g., John G. Bryant Co. v. Sling Testing & Repair, Inc., 471 Pa. 1, 16, 369 A.2d 1164, 1171 (1977) (party may nof appeal an order not adverse to itself); see also Pa.R.A.P. 501 ("any party who is aggrieved” may appeal an appealable order). Even if appellant has standing to raise this argument, we need not address it in light of our affirmance of the denial of certification on other grounds.

      . Appellant amended his complaint on January 24, 1983, adding more specific factual allegations concerning his decedent; the class action allegations were unchanged by the amendment. Those allegations are as follows:
      12. Paragraphs 1 through 11 of the Amended Complaint [containing specific allegations concerning appellant’s decedent] are incorporated herein by reference.
      13. The class of plaintiffs includes all insureds of defendant who were covered by the Pennsylvania No-Fault Act with respect to their' fatal injuries, whether same occurred inside or outside the Commonwealth of Pennsylvania, since the time of the passage of the No-Fault Act.
      14. Plaintiffs aver that the total number of all class members is so numerous that their joinder would be impracticable.
      15. Plaintiffs also aver that many of the members of the class are unaware of their rights because of the defendant’s actions in refusing to pay such claims or even alerting their insureds as to the possible existence of such claims.
      16. The questions of law or fact raised in the instant action are common to all members of the class.
      17. Claims of the representative parties are typical, if not identical, to the claims of the class.
      18. The representative parties will fairly and adequately represent the class in that competent counsel has been retained, has no potential or actual conflict or interest with other possible members of the class, and can acquire financial resources to insure the interest of the class will not be harmed. Amended Complaint, Jan. 24, 1983, at 3-4.

      . On Feb. 17, 1984, appellant filed a one-page document captioned “Plaintiffs’ Brief in Support of Plaintiffs’ Motion for Partial Summary Judgment and Consolidation and Petition for Certification of Class,’’ but this document merely “incorporated by reference” br iefs previously filed by appellant’s counsel in other class actions. The briefs in those actions are not part of the record in the case before us, and therefore cannot be considered in deciding this appeal. See, e.g., McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 162, 293 A.2d 51, 37 (1972).

      . Nor can it be said that appellant’s class allegations must be accepted as evidence because appellee failed to deny them as required by Pa.R.C.P. 1706 and Pa.R.C.P. 1029. Rule 1706 specifically refers to “averments of fact.” See Pa.R.C.P. 1706. No such averments were made in the class allegations section of appellant's complaint. See supra note 3.

      . We note that our decision to affirm the trial court’s denial of certification will not preclude recovery by members of the class appellant purports to represent. In a recent decision, the Court of Common Pleas of DauphinCounty certified a class that includes as a subclass the same class appellant seeks to represent. See Kraft v. Allstate Insurance Co., No. 2557 S. 1984, slip op. at 13 (Pa.C.P. Dauphin County May 20, 1985). An order certifying a class is interlocutory and nonappealable. Piltzer v. Independence Federal Savings & Loan Ass’n, 456 Pa. 402, 405, 319 A.2d 677, 678 (1974).


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    499 A.2d 671
    COMMONWEALTH of Pennsylvania v. Donald CRANBERRY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1985.
    Filed Oct. 18, 1985.

      Terrence P. Cavanaugh, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from a judgment of sentence imposed following a jury verdict finding appellant guilty of burglary, receiving stolen property and criminal conspiracy. Appellant filed an Omnibus Pre-Trial Motion which included a motion for discovery, a motion to suppress appellant’s confession, a motion to quash the information, and a motion to sever appellant’s trial from that of his co-defendant. After a full hearing, the trial court granted the motion for discovery. The motion to quash, the motion to suppress and the motion to sever the trial of the co-defendant were denied. Upon the jury’s verdict of guilty on all three charges, appellant was sentenced to four to eight years imprisonment for burglary and criminal conspiracy, and was given a suspended sentence, upon payment of costs and restitution, for receiving stolen property.

Appellant was found guilty of breaking into a private residence with two friends. They removed from the house two lamps, a cuckoo clock, a coffee maker and various pictures and food, which they hid in the woods to be retrieved at a later time. The police were given a tip that appellant might have information about this crime and after questioning at the police department, appellant signed a statement admitting his involvement.

Appellant raises four issues on appeal: first, whether the trial court erred in denying his motion to sever his trial from that of his co-defendant; second, whether the trial court erred in denying his motion to suppress his statement and in allowing it to be introduced in evidence at trial; third, whether the trial court erred in allowing the Commonwealth to call a witness, Leonard Jordan, in view of the fact that the first time appellant was notified that Jordan would testify was during jury selection, and further, in refusing to allow appellant the opportunity to impeach Jordan’s testimony by reference to his testimony under oath at an unrelated preliminary hearing; and fourth, whether the trial court abused its discretion by imposing a four to eight year sentence and in not modifying it upon timely demand. Because we find no error or abuse of discretion, we affirm.

Appellant argues on appeal that because of inconsistent defenses between his co-defendant and himself and prejudice to him as a result of a statement given to the police by his co-defendant which was introduced in evidence at trial, the trial court erred in refusing to sever his trial from that of his co-defendant. In his pre-trial motion, appellant argued that because he was not a major actor in the crime and because of the lack of evidence against him, it would severely prejudice his case to be tried with his co-defendant. Because the reasons for severance were different in appellant’s pre-trial motion from those being asserted on appeal, the Commonwealth maintains that this argument has been waived pursuant to Pa.R.Crim.P. 9020(d) which provides that:

(d) The failure, in any motion, to state a type of relief or order, or a ground therefor; shall constitute a waiver of such relief, order, or ground.

From our review of the record, however, we cannot ascertain whether, prior to trial, the appellant was aware of either his co-defendant’s statement or the existence of allegedly inconsistent defenses. Accordingly, we cannot fairly find this argument waived.

Addressing the merits of this argument, we find our Court’s decision in Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984) controlling. The Court stated:

‘Questions of consolidation or severance of defendants for trial rest in the discretion of the trial judge and his rulings on such matters will not be disturbed on appeal except for manifest abuse of discretion.’ Commonwealth v. Tolassi, 258 Pa.Super. 194, 199, 392 A.2d 750, 758 (1978), aff'd, 489 Pa. 41, 413 A.2d 1008 (1980).... When the crimes charged arise from the same acts or series of acts and much of the same evidence is necessary or applicable to all defendants, a joint trial is ‘permissible, if not advisable.’ Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1978)....
Especially where a conspiracy to commit crime is alleged, the defendants should be tried together, ‘unless it can be shown that one or more of the defendants will be actually prejudiced by doing so.’ Commonwealth v. Johnson, 291 Pa.Super. 566, 582, 436 A.2d 645, 653 (1981).

Id., 325 Pa.Superior Ct. at 409-10, 473 A.2d at 132-133. In this case, the crimes that appellant and his co-defendant were charged with arose from the same act, and one of the crimes was conspiracy. Appellant makes only general allegations of prejudice and our review of the record discloses nothing that supports the argument that the trial court abused its discretion. Therefore, we find that the trial court’s denial of appellant’s motion to sever was proper.

Appellant next argues that the trial court erred in denying his motion to suppress his confession because it was involuntarily given. He thus concludes it was error for the trial court to have allowed his statement to be used as evidence at trial. Appellant claims that the statement he made was the result of psychological coercion and promises made to him by Detective Sergeant Runstedler. He maintains that the Detective promised him that if he cooperated, he could go home, called him a “nigger”, and typed the statement incorrectly, incriminating appellant even though he allegedly did not incriminate himself.

Our standard of review applicable to a challenge to a denial of a motion to suppress evidence was explained in Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, . 181 (1980) where the Court said:

When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights, Pa.R.Crim.P. 323(i), and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). On review, this court .must ‘determine whether the record supports the factual findings of the court below and the legitimacy of the inferences drawn from those findings.’ Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977); Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). In doing so, we will consider ‘only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ Commonwealth v. Brown, 473 Pa. at 566, 375 A.2d at 1262; Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976).

A complete review of the record supports the suppression court’s findings, namely that the confession was voluntary, that no promises were made, and that when Detective Runstedler used the term “nigger,” he was not referring to appellant. Since none of the evidence for the defense remains uncontradicted, the suppression court was required to evaluate the credibility of the witnesses. As stated in Commonwealth v. Davis, 491 Pa. 363, 369 n. 2, 421 A.2d 179, 181 n. 2:

It is well established that credibility determinations are the sole province of the fact finder, Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979), and the fact finder is free to believe all, part of, or none of the defendant’s testimony. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978), cert, denied, 439 U.S. 989 (1978).

The trial court’s determinations of credibility will not be disturbed on appeal.

The third argument appellant makes is that the trial court erred in allowing the Commonwealth to call Leonard Jordan as a witness and in refusing appellant the opportunity to impeach Jordan’s testimony by examining him on an unrelated matter. Although appellant was not informed until jury selection that Jordan would testify, the trial court, over appellant’s objection, permitted Jordan to take the stand and testify. Jordan testified that a few days after the burglary, while in the company of appellant, appellant revealed the details of the crime to him and admitted that he was involved. Appellant first complains that he was not given adequate time to investigate and prepare rebuttal, and second, that he should have been permitted to impeach Jordan’s testimony by showing inconsistencies between a statement Jordan made to the police and testimony he gave under oath involving a matter completely unrelated to the case at bar.

As to appellant’s first contention, Pa.R.Crim.P. 305E provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

This paragraph has been interpreted to mean that a “trial court has broad discretion in determining the remedy to be applied in the event there was a failure to comply fully with a demand for discovery.” Commonwealth v. Cason, 328 Pa.Super. 326, 331, 476 A.2d 1353, 1356 (1984). Here, appellant was given several continuances during the three days of trial before Jordan testified. He was unable, however, to produce any witnesses or evidence to rebut the testimony of Jordan. After Jordan had completed his direct examination, appellant was granted another continuance for further investigation. Once again, appellant located no witnesses or evidence for use in rebuttal. Given these circumstances, we find that the trial court acted well within its discretion. As our Supreme Court stated in Commonwealth v. Bonacurso, 500 Pa. 247, 252, 455 A.2d 1175, 1178 (1983):

Where the identity of a witness unfavorable to the accused is withheld from the defense until trial, no reversible error occurs if the defense is given ample opportunity by the trial court to ask for a continuance, cross-examine the witness, or take whatever remedial steps are necessary and reasonable under the circumstances.

The trial court took all necessary and reasonable steps required under the circumstances disclosed here and its ruling allowing Jordan to testify was not an abuse of discretion.

The trial court also did not err in its ruling to prevent appellant’s effort to impeach Jordan by use of information wholly unconnected with this case. Appellant places great emphasis on Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976). Gaddy is not controlling here. In that case, defense counsel sought to discredit the Commonwealth’s witness by asking about his general use of drugs. The court limited the questioning to the day of the incident so as to determine the state, of the witness’s mind that day, and went on to say that this questioning was a limited exception to the general rule that counsel may not inquire into the general reputation of a witness.

The applicable rule in this situation is found in Commonwealth v. Fisher, 447 Pa. 405, 413, 290 A.2d 262, 267 (1972), wherein our Supreme Court stated

that in this Commonwealth ‘a witness may not be contradicted on collateral matters.’ McGoldrick v. Pa. Railroad Co., 430 Pa. 597, 600, 241 A.2d 90, 92 (1968). This Court has defined a collateral matter as one which has ‘no relationship to the case on trial.’ Commonwealth v. Petrillo, 341 Pa. 209, 223, 19 A.2d 288, 295 (1941). Accord Commonwealth v. Neill, 362 Pa. 507, 67 A.2d 276 (1949); 3 Wigmore, Evidence, § 1003 (3rd Ed.1940).

The matter upon which appellant intended to cross-examine Jordan involved another crime that occurred on another day and had no relationship to the instant case. Neither appellant nor Jordan were charged as defendants in that case. As stated in Commonwealth v. Petrillo, 341 Pa. 209, 223, 19 A.2d 288, 295 (1941):

No witness can be contradicted on everything he testifies to in order to ‘test his credibility. The pivitol issues in a trial cannot be sidetracked’ for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. A witness can be contradicted only on matters germane to the issue trying. There is no rule more firmly established____ (Emphasis in the original.)

Therefore, the trial court did not err in its ruling relative to appellant’s attempt to insert a wholly collateral consideration into the trial.

Appellant’s final argument is that the trial court abused its discretion by imposing an excessive sentence and in failing to modify it upon timely demand. “Abuse of discretion is defined in terms of either a manifestly excessive sentence or one which exceeds the statutory limit.” Commonwealth v. Button, 332 Pa.Super. 239, 243-44, 481 A.2d 342, 344 (1984). In making its determination of sentence, the court considered the following: the impact of the crime on the victims, the defendant’s character, the need to protect the public, the defendant’s potential for rehabilitation (which the trial court considered to be nil), the defendant’s past record, and his home situation. In light of these considerations, the sentence was not manifestly excessive. In addition, the sentence was well within the statutory limit, that limit being more than 20 years.

Judgment of sentence affirmed.


author: JOHNSON, Judge:

text:
    499 A.2d 676
    L. HAFT, Robert Hayden, W. Tandaric, R.S. Boyle, Herman E. Wandrei, E.E. Stiegerwald, Anthony Rustic and Walter W. Kantner on Behalf of Themselves and All Other Similarly Situated Persons Who Were Within Six Years Before the Filing of This Action Management Employees of United States Steel Corporation at Edgar Thomson, Irvin, Vandergrift or Homestead Works of Eastern Steel, Who Occupied When So Formerly Employed, Foreman or General Turn Foreman Positions (Excluding General Foremen) or Other Equivalent Management Positions Below the Level of General Supervisor in Staff and Service Departments and Who, While So Formerly Employed, Were Eligible For But Not Paid Overtime and Sunday and Holiday Compensation Provided For Such Employees By United States Steel Corporation, Appellants, v. UNITED STATES STEEL CORPORATION.
    Superior Court of Pennsylvania.
    Argued April 11, 1985.
    Filed Oct. 18, 1985.

      John A. Metz, Jr., Pittsburgh, for appellants.
    James T. Carney, Pittsburgh, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellants brought this class action in assumpsit on June 26, 1979 against United States Steel Corporation (hereinafter USS) seeking an accounting for overtime, Sunday and holiday hours they allegedly worked as foremen or general turn foremen. Appellants’ motion for class certification was denied after a hearing on July 23, 1980, an appeal was taken to this Court, and we reversed. See Haft v. United States Steel Corporation, 305 Pa.Super. 109, 451 A.2d 445 (1982) (Haft I). Upon remand, the case was tried before the Honorable Silvestri Silvestri and a jury on the issue of liability only. Appellants did not present any witnesses but read into evidence admissions from the pleadings and entered exhibits attached to their complaint which were admitted by USS. Appellants rested, and USS moved for a compulsory nonsuit, which was granted by the trial court. Appellants’ motion to remove the nonsuit was denied by order dated August 9,1984, and the trial court directed that judgment be entered in favor of USS. This appeal followed and we affirm.

In his erudite and exhaustively researched opinion, Judge Silvestri reviewed the historical development of the common law action of account render dating from the thirteenth century, and the practice and procedure under Section 11 of the suspended Practice Act of 1915. See Haft v. United States Steel Corporation, 133 P.L.J. 82 (1985) (Haft II). Judge Silvestri concluded that the promulgation of Pa.R. C.P. 1021 in 1947 “did not enlarge or change the substantive conditions upon which an accounting may be sought in an action in assumpsit.” 133 P.L.J. at 87. Accordingly, Judge Silvestri determined that since the Common Law and the Practice Act of 1915 would not permit an accounting under appellants’ circumstances, Pa.R.C.P. 1021 similarly precludes the recovery appellants seek.

Appellants argue, quite simply, that Pa.R.C.P. 1021 should not be construed to include the practice and procedure under the abolished common law action of account render and the suspended Practice Act of 1915. We cannot agree.

The action for an accounting, as it developed at common law, required: (1) a transaction involving movable personal property, i.e., money or goods; (2) a contract between the parties, express or implied, and (3) uncertainty as to the amount. See Haft II, 133 P.L.J. at 84-86 and authorities cited therein. A plaintiff could compel a defendant to account by bill in equity or by an action of account render at law. The relief of accounting was made available in Pennsylvania in an assumpsit action by the Practice Act of 1915, under the circumstances set forth in Section 11 of the Act.

The absence of any language in Pa.R.C.P. 1021 as to the circumstances under which an accounting could be sought suggests no intent to change the law as it existed. “The authorities and procedure which applied under prior practice remain unchanged.” Goodrich-Amram 2d § 1021:2 at 201. Thus, as summarized by Judge Silvestri, to establish a right to an accounting in an action at law in assumpsit, plaintiff must show:

(1) there was a valid contract, express or implied, between the parties whereby the defendant
(a) received monies as agent, trustee or in any other capacity whereby the relationship created by the contract imposed a legal obligation upon the defendant to account to the plaintiff for the monies received by the defendant, or
(b) if the relationship created by the contract between the plaintiff and defendant created a legal duty upon the defendant to account and the defendant failed to account and the plaintiff is unable, by reason of the defendant’s failure to account, to state the exact amount due him, and
(2) that the defendant breached or was in dereliction of his duty under the contract.

133 P.L.J. at 88.

Our review of the record in the case before us uncovers no facts which indicate that USS received any monies in any capacity from appellants under any contract, express or implied. Accordingly, USS is under no legal obligation to account. Appellants cannot attempt to extend equitable jurisdiction to their cause by way of the discovery process. The legitimate function of discovery is to furnish evidence; it is not the source of jurisdiction. Williams v. Finlaw, Mueller and Co., Inc., 292 Pa. 244, 141 A. 47 (1928).

Having failed to establish the requisite elements of the cause of action appellants sought to pursue, the compulsory nonsuit was properly granted.

Order affirmed.

      . The Act of 1915, May 14, P.L. 483, § 1; 1937, May 26, P.L. 895, No. 235, § 1, 12 P.S. § 393 (hereinafter the Practice Act of 1915), as amended, provides as follows:
      If either the plaintiff in his statement or the defendant in a counterclaim avers that the defendant or plaintiff has received moneys as agent, trustee, or in any other capacity for which he is bound to account to the plaintiff or defendant, or if the plaintiff or defendant is unable to state the exact amount due him by the defendant or plaintiff, by reason of the defendant’s or plaintiffs failure to account to him, the plaintiff or defendant may ask for an account. As originally enacted in 1915, the right to account in an action of assumpsit was limited to the plaintiff and not available to a defendant.

      . Rule 1021. Claim for Relief. Determination of Amount in Controversy
      (a) Any pleading demanding relief shall specify the relief to which the party deems himself entitled. Relief in the alternative or of several different types, including an accounting, may be demanded.

      . On September 8, 1984, appellants served upon USS a request for production of documents either by way of producing documents or by making them available for inspection and photocopy; the documents requested, being listed in 16 categories, related, inter alia, to all the records of the class members from June of 1973 to date pertaining to time worked, particularly with reference to overtime, Sundays and holidays. USS responded to appellants’ request by making available to them for inspection and copying the requested documents.


author:
SPAETH, President Judge:
      OLSZEWSKI, Judge,

text:
    499 A.2d 1065
    Richard F. CRUMMER and Dolores R. Crummer, His Wife v. Marvin J. BERKMAN and Judy M. Berkman, His Wife. Appeal of Judy M. BERKMAN.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1984.
    Filed Oct. 18, 1985.

      Benjamin B. Wechsler, II, Pittsburgh, for appellant.
    Joan Shoemaker, Pittsburgh, for appellees.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   SPAETH, President Judge:

This is an appeal from judgment entered in an assumpsit action. The case arises from the breach of a contract by which appellant and her husband agreed to buy, and appellees to sell, a house for $225,000. N.T. 18-20. Appellees brought this action to recover their losses when they had to sell the house to someone else because appellants did not settle. Appellant and her husband counterclaimed to recover their deposit money and defended against appellees’ complaint by alleging that appellees fraudulently induced them to sign the agreement of sale. The trial court directed a verdict as to liability in appellees’ favor, entered a non-suit on the counterclaim, and submitted the case to the jury to calculate damages. The jury awarded damages of $47,634.25 and $19,750 in interest. Judgment was entered and this appeal followed. We reverse and remand for a new trial.

Because the trial court directed a verdict for appellees and entered a non-suit on the counterclaim, we must view the evidence in the light most favorable to appellant. Lamp v. Pennsylvania Railroad Co., 305 Pa. 520, 158 A. 269 (1931). So viewed, the evidence was as follows.

On June 16, 1978, before the parties entered into their contract, appellee Richard Crummer represented to appellant and her husband that he was a director of a real estate business called National Apartment Leasing, but he did not disclose that as director, his duties were the supervision of maintenance. N.T. 31, 120. He then offered to assist appellant and her husband in writing an advertisement to sell their house and, after touring their house, told appellants that they would have no trouble selling it for $235,000. N.T. 122-24. Appellant and her husband asked whether they could make their contract of sale contingent upon selling their own house, but appellee did not agree to this. N.T. 125. As it happened, appellant and her husband were not able to sell their house before the date set by the contract for settlement and as a result, they breached the contract.

Viewed in the light most favorable to appellant, the jury might have found as follows: Appellee Richard Crummer held himself out to be an expert in real estate, when he was not; he assured appellant and her husband that they could sell their own house for a price equal to the contract price, although he had no basis for those assurances; relying on his assurances as an expert, appellant and her husband did not insist upon making the sale contingent on the sale of their own house. Had the jury so found, it might have returned a verdict against appellees, and for appellant and her husband on their counterclaim. For when a party is induced to enter into a transaction with another by means of fraud or misrepresentation, the transaction may be avoided by the innocent party. See DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644, 647 (1958); (per curiam affirmance of conclusions of law and findings of fact of trial court set out at 392 Pa. 24, 139 A.2d 644); Clement Martin Inc. v. Gussey, 191 Pa.Super. 464, 468-69, 157 A.2d 412, 415 (1960). Accordingly, neither the directed verdict nor the non-suit should have been entered.

We also conclude that a new trial should be granted because the trial court did not allow appellant to testify about appellees’ representations and struck evidence that appellees misrepresented the condition of the driveway. The testimony was not excludible as parol evidence, for it tended to prove appellees’ fraud in inducing the agreement. See Greenwood v. Kadoich, 239 Pa.Super. 372, 357 A.2d 604 (1976)1 The evidence as to the condition of the driveway should not have been stricken, for it tended to prove a knowingly' false representation that induced appellant and her husband to agree to a given price. “Fraud arises where the misrepresentation is knowingly false [and] renders a transaction voidable even where the misrepresentation is not material.” See DeJoseph v. Zambelli, supra; 392 Pa. 24, 139 A.2d at 647; Clement Martin Inc. v. Gussey, supra; See also, Restatement 2d, Contracts § 164 (fraudulent or material misrepresentation makes contract voidable).

Appellant also argues that the trial court erred in instructing the jury as to the rate at which the jury could add interest to the damage award. The jury awarded interest at a rate equal to 41% of the damage award for the four years, between the breach and their verdict. If interest had been awarded at the legal rate of 6% per year, see 42 Pa.C.S. § |8101, the amount of interest would have been only 24% jof the award. On remand, the jury should be instructed, that the prevailing party should be awarded interest at the maximum legal rate of 6% per year. Judgment vacated and case remanded for new trial.

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

OLSZEWSKI, Judge,

concurring and dissenting:

I respectfully dissent from the majority’s conclusion to remand for a new trial on the merits of this case. In my view, appellant has failed to show the elements of fraudulent inducement to enter into an agreement of sale necessary to allow the issue to progress to jury determination.

A directed verdict may be granted on the whole record only if the evidence, viewed in a light most advantageous to the non-moving party, and resolving all conflicts in her favor, and giving her the benefit of every fact and inference pertaining to the issues involved which may be reasonably deduced therefrom, would not justify a verdict and judgment in her favor. Kuminkoski v. Daum, 429 Pa. 494, 240 A.2d 524 (1968); Hogan v. Bryn Mawr Hospital, 250 Pa.Super. 109, 378 A.2d 477 (1977). In the instant case, appellant does not deny that the parties entered into an agreement of sale for the Crummer property, nor that the Berkmans failed to close on the property. Further, appellant does not contest the $35,000.00 differential between the price originally negotiated by the Crummers and the price eventually received.

Appellant argues that there is an issue of fact as to whether the Berkmans were fraudulently induced to enter the agreement of sale. I respectfully submit that the majority’s myopic approach to the analysis of this issue ignores the elements necessary to establish a defense of fraud. Fraud must be shown by clear, precise and indubitable evidence: that a representation with an intent to induce reliance, with knowledge of its falsity, and that the victim reasonably relied upon the misrepresentation. Bachman v. Artinger, 285 Pa.Super. 57, 426 A.2d 702 (1981); National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977). The misrepresentation must concern a past or existing fact. See College Watercolor Group, Inc., v. William H. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976). An opinion, even an exaggerated opinion, is not fraudulent if it represents a person’s true state of mind, even though the person may later change his mind. Id; Sanders v. Lawn Mutual Ins. Co., 184 Pa.Super. 491, 168 A.2d 758 (1961).

Appellant’s counterclaim failed to state a claim in fraud as a matter of law. Mr. Crummer’s statement as to the value of appellant’s house on the market was, at best, an opinion as to a future event. These were two parties dealing at arm’s length. It is disingenuous for appellant to argue that she relied on the statement when the record shows that the Crummer’s absolutely refused the proposal that the sale be made contingent upon the sale of appellant’s property.

Reviewing the record in the light most favorable to appellant, resolving all conflicts in her favor and giving the benefit of every fact or inference, the only reasonable conclusion is that she has thrown up a smoke screen to avoid a valid contractual obligation. The clear, precise and indubitable bottom line is that appellant signed an agreement of sale after explicitly agreeing to exclude a contingency clause relating to the prior sale of her own home. Mr. Crummer correctly represented himself to be a partner in a real estate company: as noted by the court below, anyone might have made the comment attributed to him, since this was the very summer in which the escalation of housing prices peaked and began their collapse. Further, the Crummer’s made every effort to help appellant uphold her end of the bargain. Two extensions were granted on the closing date. Perhaps most compelling, the Crummer’s at one point offered to buy out appellant’s interest in the property for ten thousand dollars. Appellant refused this offer, despite the fact that the offer came a considerable time after appellant’s residence had been on the market and failed to sell.

Appellant also argues that Mr. Crummer fraudulently misrepresented the cause of damage to a portion of the driveway to the house. It is alleged that the lower court erred in excluding expert testimony from the jury’s consideration as to the cause of that damage. I would hold that the evidence was properly excluded. Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial judge and will not be disturbed absent a manifest abuse of discretion. Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983). Here, appellant offered expert testimony to show that the damage had been caused by subsidence or a landslide, and that Crummer’s misrepresented the damages as having been caused by a snowplow. The testimony was excluded on two grounds. First, the expert conceded that except for the break in the driveway, he could not say that there was any noticeable sliding or subsidence prior to the Berkmans’ inspection in June of 1978. Thus, there was absolutely no evidence from which it might be inferred that the Crummers knew of the condition of the underlying ground. See Verzella v. Caste Brothers, Inc., 207 Pa.Super. 74, 215 A.2d 264 (1965) (evidence properly excluded where expert had not knowledge of conditions existing at time of alleged breach); see also George A. Shegda, Inc. v. Standard Merchandising Co., 231 Pa.Super. 194, 332 A.2d 498 (1978). Appellant also argues that the testimony was admissible as to the measure of damages. The lower court properly excluded the testimony when the expert gave no evidence of the impairment of value of the property or the cost of repair. Verzella, supra.

In sum, unwilling or unable to meet the terms of the agreement, appellant has raised this transparent defense of fraud. The lower court, applying the strict standard of review required for a directed vereict, having the benefit of observing the parties during oral argument, held that an issue of fraud had not been created as a matter of law. I would affirm that judgment.

I concur with the majority on the issue of the measure of interest on damages and would remand solely for a recomputation of interest.

      . In the hope that judicial economy will be served, we shall discuss appellant’s other arguments.
      The first of these is that the trial court erred in excluding evidence that a power of attorney given by appellee Richard Crummer to his business partner had been notarized on a date other than the one on which appellee claimed. The trial court noted that a power of attorney need not be notarized and held that the evidence was “not material to any issue in this case.” Slip opinion of trial court at 6. Appellant is correct that the falsity of the power of attorney would have been relevant to appellee's credibility; however, on retrial the issue may arise whether the trial court may nevertheless properly exclude the evidence as an attempt to use extrinsic evidence of a collateral matter to impeach appellee. See Commonwealth v. Boggio, 204 Pa.Super. 434, 438, 205 A.2d 694, 695 (1964).
      Appellant also argues that the trial court erred in admitting into evidence bills for landscaping, security and snow removal services; in appellant’s view, these were hearsay. We think the error, if any, was harmless since there was simultaneous testimony that such services were provided and of their cost. See N.T. 73-80. Related to this argument is appellant’s argument that the trial court erred when it would not allow rebuttal testimony that the bills for security services were too high. The trial court took judicial notice that the $200 monthly charge was reasonable and refused to allow the witness to testify. Slip opinion of trial court at 7. The admission or rejection of rebuttal evidence is within the discretion of the trial court. Mapp v. Dube, 330 Pa.Super. 284, 479 A.2d 553 (1984). We cannot say that the trial court abused its discretion here.
      Appellant's argument that the trial court erred in not admitting evidence of attempts to mitigate damages has no merit. That evidence was admitted. See N.T. 127-134.


author: CAVANAUGH, Judge:

text:
    499 A.2d 1069
    Harry PASTUSZEK, Jr., and Michale Pastuszek, Co-Executors for Irene Pastuszek, Deceased, Appellants, v. Harry PASTUSZEK, Appellee.
    Superior Court of Pennsylvania.
    Argued May 21, 1985.
    Filed Oct. 18, 1985.

      Melva L. Mueller, West Chester, for appellants.
    Michael P. Dignazio, Media, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CAVANAUGH, Judge:

Irene Pastuszek filed a complaint in divorce under the Divorce Code, 23 Pa.C.S. § 201(d), against her husband, Harry Pastuszek, in September, 1980. The defendant below, Harry Pastuszek, who is the appellee herein, filed preliminary objections to the complaint which were dismissed. A master in divorce was appointed and the appellee filed a motion to have the appointment stricken, but before argument was heard he appealed to this court from the order appointing the master. We granted the petition of Irene Pastuszek to quash the appeal on January 17,1983. On February 2, 1983, the Master filed his report recommending the grant of a divorce. A decree in divorce was entered on March 18, 1983, and the decree provided that “the court reserves jurisdiction to dispose of ancillary matters properly raised by the parties heretofore.”

Irene Pastuszek died on July 19, 1983, before any action was taken in the court below pertaining to the ancillary matters of equitable distribution of marital property, alimony pendente lite and counsel fees. The record discloses that for some time before Mrs. Pastuszek’s death she suffered from advanced stages of cancer, and her death appeared imminent at the time the divorce decree was entered. There is evidence that Mr. and Mrs. Pastuszek had interests in real estate amounting to over $400,000.00. Mrs. Pastuszek was survived by four children, two of whom, Harry Pastuszek, Jr. and Michele Pastuszek, are executors of her estate. Under Mrs. Pastuszek’s will, her four children share equally in her estate. Mrs. Pastuszek died a resident of the State of Delaware and her estate is subject to the jurisdiction of the appropriate court of that state.

Following Mrs. Pastuszek’s death, the executors of her estate were substituted as parties plaintiff in the court below and sought to continue with the ancillary aspects of the divorce proceedings. On May 31, 1984, Labrum, J., following a hearing, granted the appellee’s petition to abate the ancillary matters outstanding because of Mrs. Pastuszek’s death. The executors of the estate have appealed.

This is a case of first impression in an appellate court of this Commonwealth. The issue is whether a divorce action abates in all respects upon the death of one of the parties subsequent to the entry of the divorce decree (and where there hás been no appeal taken from the entry of such decree) and prior to the determination of ancillary questions which have been raised before the death of the spouse. We recently determined in Haviland v. Haviland, 333 Pa.Super. 162, 481 A.2d 1355 (1984) that a pending divorce action abates upon the death of one of the spouses prior to the entry of the divorce decree. We must now go beyond the scope of Haviland, supra, to determine if the action abates with respect to economic matters once the divorce decree has been entered.

In the instant case there was a bifurcation of the entry of the divorce decree and the consideration of economic claims. The Divorce Code permits such bifurcation as it is provided in 23 Pa.C.S. § 401:

§ 401. Decree of court
(a) In all matrimonial causes, the court having jurisdiction may either dismiss the complaint or enter a decree of divorce or annulment of the marriage.
(b) Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters kre raised in the complaint, the answer or other petition,¡an order or orders determining and disposing of existing property rights and interests between the parties, custódy and visitation rights, child support, alimony and any other related matters including the enforcement of separation agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment. The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

While the statute provides that the divorce decree shall contain an order or orders “determining and disposing of existing property rights and interests between the parties,” and other matters, it further provides in § 401(b) that “in the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment.” The statute permits a bifurcated proceeding whereby the divorce decree is entered and the ancillary matters are subsequently disposed of. In Carney v. Carney, 20 Pa. D & C 3d 749 (C.P. Erie County 1983) the court determined that § 401(b) appears to allow bifurcation and noted at 20 Pa D & C 3d 750:

This court believes that the legislature recognized that the disposition of marital property, sometimes acquired over many years, cannot always be accomplished in the shortened period in which a divorce can be obtained.

See also, Casey v. Casey, 18 Pa D & C 3d 24 (C.P. Allegheny County 1980); Pa.R.C.P. 1920.52.

While the entry of the divorce decree may be bifurcated from the ancillary proceedings, Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983), opinion by Cirillo, J., makes it clear that the decision to bifurcate may not be granted pro forma and the court must knowingly exercise its discretion before it permits bifurcation. In Wolk, supra, the court below bifurcated the proceedings and entered a divorce decree leaving the economic claims to be disposed of at a later date. The court did not state its reasons for severing the divorce decree and economic claims. An appeal was taken from the divorce decree and other orders. We reversed and remanded for a hearing to determine if the court should grant bifurcation and requiring the hearing judge to set forth his reasons for permitting such bifurcation. In Hall v. Hall, 333 Pa.Super. 483, 482 A.2d 974 (1984), the husband in a divorce proceeding petitioned for bifurcation. The court entered a divorce decree and retained jurisdiction over economic claims raised by the defendant-wife. The defendant appealed to this court from the decree granting the divorce and other orders. Pending appeal the plaintiff died. We held that under the standards set forth in Wolk, supra, the court below did not properly exercise its discretion prior to granting bifurcation. We reversed the decree of divorce but did not remand as it would have been futile for the court below to decide whether it should have bifurcated the proceedings. It could not then grant a divorce as the plaintiff was deceased.

In the case before us, there was no appeal from the entry of the divorce decree and neither party challenges the validity of the divorce. This factor distinguishes our case from Wolk and Hall, supra. It is clear that the court below did not meet the standards of Wolk in severing the divorce aspect from economic claims as it did not weigh the factors to be considered in granting bifurcation and:

such a determination should be made only after the disadvantages and the advantages have been carefully explored and analyzed. Each case must be reviewed on its own facts and only following the court’s determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition.

Wolk v. Wolk, 318 Pa.Super. at 317-18, 464 A.2d at 1362.

If the appellee had appealed from the decree granting the divorce, the outcome might have been different under Hall, supra. In the posture of the matter under review, the divorce decree is final and not subject to attack. The court had jurisdiction to enter the decree, notwithstanding the procedural defect in severing the economic claims from the divorce itself without making a record determination of the reasons for bifurcation.

Directing our attention to the central issue before us, we hold that where a decree in divorce is entered and is no longer subject to modification, and the court retains jurisdiction over ancillary matters previously raised by the parties, the death of one of the parties prior to determination of the ancillary matters does not abate the action. This in no way conflicts with our recent decision in Haviland v. Haviland, supra, that the death of a spouse prior to the entry of a divorce decree abates the action, including any equitable distribution of marital property. In our case the divorce decree was entered, and as noted in Haviland v. Haviland, supra, 333 Pa.Super. 162, 481 A.2d 1357: “Moreover, the Divorce Code only authorizes distribution of marital property in conjunction with a decree granting a divorce”. (Emphasis added.) The determination of economic claims flows from the divorce decree, which is the sine qua non of any consideration of economic matters. In considering the distribution of marital property, the Code sets forth many factors that come into play under 23 Pa.C.S. § 401. Included in the factors to be considered are the contribution that a spouse made to the education of the other spouse, the contribution that he or she made in acquiring and maintaining property (including the contribution of a party as a homemaker), and the value of the property set aside to each party. These are factors that do not necessarily look to the continued life of both spouses, although some of the factors set forth in 23 Pa.C.S. § 401(d) clearly do, as noted in Haviland v. Haviland, supra. If a spouse contributed a great deal to acquiring marital property or to its capital appreciation, a monetary value may be affixed to this. The accident of death, following the entry of the divorce decree, should not preclude the valuation of marital property.

While the appellate courts of this Commonwealth have not been called on to decide the issue before us, it has been been considered in other jurisdictions with a result consistent with our own. In CEW v. HLW, 410 A.2d 1024 (Del.Fam.Ct.1979) the issue was whether jurisdiction over ancillary matters was defeated by the death of one of the parties to a divorce action, after the divorce decree was entered and prior to the property division hearing. The court held that the issue was one of first impression in Delaware. It relied on Olen v. Melia, 141 N.J.Super. Ill, 357 A.2d 310 (Appl.Div.1976) and stated that “abatement is inappropriate where, as here, the final decree has been granted and concludes that the death of petitioner does not disturb this Court’s authority to resolve the ancillary matters now properly before it.” Similarly, in Boeder v. Boeder, 103 Wis.2d 411, 308 N.W.2d 904 (1981), the husband died after the entry of the divorce decree but before division of marital property. The court held that the family court retained jurisdiction to dispose of property matters relating to the divorce.

Our conclusion in Haviland v. Haviland, supra, that the property provisions of the Divorce Code are intended to apply to living spouses, is limited to the situation where a divorce decree has not been entered. Once the decree has been entered, the right of the spouse to the distribution of marital property and other economic claims where these matters have been properly put in issue before the death of the spouse, is vested. We do not perceive any conflict between this rule and the provisions of any statute dealing with the estates of decedents. By virtue of equitable distribution of marital property and the disposition of other economic claims, some property may become an asset of the decedent’s estate and shall be treated by the personal representative as any other estate asset.

We add a word of caution as to alimony pendente lite, reasonable counsel fees and expenses which are permitted under § 502 of the Divorce Code. The entry of the divorce decree does not alter the right of a former spouse to alimony pendente lite or counsel fees. See Klein v. Klein, 20 Pa. D & C 3d 482 (Allegheny 1980). However, entitlement to alimony pendente lite, counsel fees and costs ceased as of the date of Mrs. Pastuszek’s death.

Order reversed and case remanded for a determination of economic claims consistent with this opinion. Jurisdiction relinquished.

      . The complaint in divorce alleges that the parties "have lived separate and apart for a period of at least three (3) years, and the marriage is irretrievably broken.” The plaintiff below specifically petitioned in her complaint in divorce for alimony pendente lite, reasonable counsel fees and equitable distribution of marital property.

      . In Delehanty v. Wozman, 133 Pittsburgh L.J. 263, (1985) the court reached the same conclusion as we have, where a party died after the entry of the divorce decree, but prior to a determination of economic claims.

      . Where a direct appeal has been taken from the entry of the divorce decree, and pending resolution of the matter on appeal, one of the parties dies, the matter on appeal does not abate. Hall v. Hall, 333 Pa.Super. 483, 482 A.2d 974 (1984).

      . Pa.R.C.P. 1920.52 dealing with the procedure in divorce cases, permits the entry of separate decrees involving marital property, alimony pendente lite, and counsel fees and expenses and states:
      Rule 1920.52. Hearing by Court. Decision. Decree
      (a) In claims involving

        (1) marital property,

      (2) enforcement of marital agreements,
      (3) custody,
      (4) alimony,
      (5) paternity,
      (6) a contested action of divorce, or
      (7) a contested action for annulment, the trial judge shall enter a decision which shall state the reasons therefor. The practice and procedure thereafter shall be in accordance with Rules of Civil Procedure 227.1 to 227.4 inclusive.
      (b) In claims involving
      (1) child support,

        (2) alimony pendente lite,

        (3) counsel fees, costs and expenses,

      (4) an uncontested action of divorce, or
      (5) an uncontested action for annulment, the decision of the trial judge may consist only of general findings.
      (c) The court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.

        (d) In all cases, the court shall enter a decree separately adjudicating each claim. (Emphasis added)

      . The court in Wolk v. Wolk, supra, stated at 318 Pa.Super. 318, 464 A.2d 1362:
      Since the decision to bifurcate is discretionary, we will review lower court decisions pertaining to bifurcation by using an abuse of discretion standard. So long as the trial judge assembles adequate information, thoughtfully studies this information, and then explains his decision regarding bifurcation, we defer to his discretion. In other words, this determination should be the result of a reflective examination of the individual facts of each case.
      See also Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984).

      . Our Supreme Court noted in Bacchetta v. Bacchetta, 498 Pa. 227, 234, 445 A.2d 1194, 1198 (1982): "As in other jurisdictions, equitable distribution occurs only upon divorce, when the need for economic assistance to the spouse with lesser resources is real and immediate.” We do not interpret this as a bar to equitable distribution and disposition of other economic claims following the death of a spouse subsequent to the entry of the divorce decree which has become final.

      . 23 Pa.C.S. § 401(d) provides:
      (d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.
      Marital property is defined at § 401(f) of the Divorce Code and includes marital property acquired before the effective date of the Code. Lazovitz v. Lazovitz, 307 Pa.Super. 341, 453 A.2d 615 (1982).

      . In Wolk v. Wolk, supra, the issue of the death of a spouse after the entry of a divorce decree was not involved, but the court indicated that if such occurred the action would continue as to economic issues with possible adverse consequences to the surviving spouse. The court stated at 318 Pa.Super. 316-17, 464 A.2d 1362:
      Another problem which arises where a case has been bifurcated involves the impact that the death of one of the parties, subsequent to the issuance of the divorce decree but prior to a determination of the economic issues, has on the surviving spouse’s right to equitable distribution.
      ******
      Though this spouse would still have a claim against the decedent’s estate under the Divorce Code’s equitable distribution process, that claim would be seriously hampered by the surviving spouse being rendered incompetent as a witness by the Dead Man’s Rule.

      . In Pennsylvania, the statute dealing with decedents’ estates is found in the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 101 et seq. In this case the personal representatives were appointed by the Surrogate’s Court of Delaware and questions concerning assets in the decedent’s estate will be governed by the law of that state.


author: WIEAND, Judge:

text:
    499 A.2d 1074
    Ned E. JOHNSTON, Donald Johnston, Lloyd T. Johnston, Dennis D. Johnston and Patricia Kostura, Appellees, v. John A. JOHNSTON and Stephen H. Johnston, Appellants.
    Superior Court of Pennsylvania.
    Argued April 9, 1985.
    Filed Oct. 18, 1985.

      Timothy E. Durant, Clearfield, for appellants.
    Richard A. Bell, Clearfield, for appellees.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

Clair Johnston, by deed executed in 1968, conveyed his farm to his sons, John A. Johnston and Stephen H. Johnston. After Clair Johnston died in 1975, his remaining children commenced an action in equity to impose a constructive trust on the farm for the benefit of all the children of Clair Johnston. The litigation proceeded to trial after two years of unsuccessful settlement negotiations. During trial, the parties finally reached agreement. The agreement was recited in open court, following which the trial court entered the following order:

NOW, September 23rd, 1981, the Court hereby accepts the agreement entered into, fully recognizing that it is presented to the Court in rough form but that the contents of the said agreement will be the basis upon which the trust agreement shall be formally prepared and signed by each of the parties and their individual spouses. Further, upon the completion of the said trust agreement, the same shall be filed in the Recorder’s Office of Clear-field County, and the Prothonotary of the County is hereby directed that upon payment of all costs and the recordation of the said trust agreement, he shall mark the records in this case settled and discontinued.

After counsel for the children had reduced the agreement to writing, John and Stephen Johnston refused to sign it. The five children then filed a petition asking that their recalcitrant brothers be held in contempt for refusing to comply with the court’s order of September 23, 1981. After hearing, the court entered an order on November 30, 1983 which was in the nature of a mandatory injunction directing

"... that Defendants execute said trust agreement within 15 days of this date; failing which the defendants shall be held in contempt of Court, and such action taken by the Court as proper.”

This appeal followed.

Appellants argue (1) that a final agreement was not reached during trial; (2) that if an agreement were reached, it was subsequently rescinded; (3) that the attorney who represented them at trial should not have been allowed to testify against them at the subsequent hearing; and (4) that it was error to order them to sign the document prepared by counsel for appellees because its terms varied from those placed on the record at the time of trial. Only the last contention has merit.

If parties agree upon essential terms and intend them to be binding, “a contract is formed even though they intend to adopt a formal document with additional terms at a later date.” Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 54, 445 A.2d 1288, 1295 (1982). Accord: Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 305 A.2d 689 (1973), cert, denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974); Bredt v. Bredt, 231 Pa.Super. 65, 326 A.2d 446 (1974). See: Restatement of Contracts (Second) § 27 (1979). The intent of the parties is a question of fact which must be determined by the fact-finder. Yellow Run Coal Co. v. Alma-Elly-Yv Mines, Ltd., 285 Pa.Super. 84, 87, 426 A.2d 1152, 1154 (1981); Luria v. Robbins, 223 Pa.Super. 456, 460, 302 A.2d 361, 363 (1973). A reviewing court must defer to the findings of the trier of the facts if they are supported by the evidence. Yellow Run Coal Co. v. Alma-Elly-Yv Mines, Ltd., supra, 285 Pa.Super. at 90, 426 A.2d at 1155; Bredt v. Bredt, supra, 231 Pa.Super. at 70, 326 A.2d at 449.

The record supports the trial court’s finding in this case that the parties intended to be bound by the terms recited for the record during the hearing of September 23, 1981. After appellees’ counsel reported to the trial court that the parties had reached an agreement, the terms of the agreement, including an allocation of court costs, were placed on the record. The court then asked counsel and each party individually if the recitation of terms conformed to his or her understanding of the agreement; and all replied in the affirmative. The court explained to the parties that the order was final and that there was nothing further except that the agreement was to be reduced to writing, signed by the parties, and filed with the court. This record refutes appellants’ argument that their only agreement was to negotiate further. See: Bredt v. Bredt, supra. The fact that the parties had already negotiated for two years, moreover, suggests the unlikelihood that appellees would have agreed to terminate their action for something less than a binding agreement. Because the agreement was made in open court, the statute of frauds will not prevent its enforcement. See: Aetna Electroplating Co. v. Jenkins, 335 Pa.Super. 283, 285, 484 A.2d 134, 136 (1984).

The record does not support appellants’ contention that the contract was rescinded. Although a rescisión need not be expressed in words but may be inferred from the parties’ acts and declarations, there must be a mutual agreement of the parties to rescind. Roberts Estate, 380 Pa. 600, 605, 112 A.2d 394, 396 (1955); Kirk v. Brentwood Manor Homes, Inc., 191 Pa.Super. 488, 492, 159 A.2d 48, 51 (1960). Whether or not the parties have so agreed is an issue for the factfinder. Kirk v. Brentwood Manor Homes, Inc., supra. The record in the instant case discloses that the parties conducted negotiations subsequent to the in-court agreement during which appellees offered to change some terms in order to obtain the recalcitrant appellants’ signature upon an agreement. Appellees' efforts were unsuccessful, however, and there is no evidence that appellees ever agreed to discharge appellants’ duty to perform the basic agreement. See: Restatement of Contracts (Second) § 284 (1979). The trial court described this endeavor as “unsuccessful negotiations” and found that the contract continued in effect. The record supports that finding; and, therefore, it will not be disturbed on appeal.

Appellants were represented during the September 23, 1981 hearing by Thomas F. Morgan, Esquire, who was dismissed in favor of new counsel after the in-court settlement. At the subsequent hearing, Morgan was called as a witness by appellees to confirm and explain the statements made in open court and the negotiations preceding the same. There was nothing in his testimony which was privileged. Only confidential communications between an attorney and client are privileged. The privilege does not extend to communications made by an attorney to a third party or to the court. See: Richter v. Goldberg, 78 Pa.Super. 309 (1922).

Appellants are correct, however, when they assert that the written agreement presented to them for their signatures contained provisions that were at variance with the agreement reached in open court. Indeed, appellees do not appear to contest that differences exist. They argue, however, that the essence of the agreement was that appellants would hold the farm in trust and that this was not varied by the drafted agreement. The only differences, they suggest, are immaterial. These differences, they argue, are “trivial and unreasonable.” We disagree. The trial court could enforce under penalty of contempt only the agreement reached in open court; it could not properly require appellants to sign a different agreement.

The trial court has not held appellants in contempt; it has directed that they sign an agreement. We express no opinion regarding the alleged contumaciousness of appellants’ conduct or the remedy available to appellees if appellants continue their refusal to conclude the settlement to which they agreed in open court. We hold only that the trial court cannot compel appellants, as a part of their settlement, to sign a written contract which is not in all respects consistent with the agreement reached during trial and placed upon the record by the parties and their attorneys.

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

      . The remaining children are Ned E. Johnston, Donald Johnston, Lloyd T. Johnston, Dennis D. Johnston, and Patricia Kostura.

      . The differences pertain to (1) the method of appraising the real estate, and (2) the date for an accounting of the trust res. Although appellants have alleged additional differences, our own examination has not disclosed any additional differences.


text:
    499 A.2d 1078
    COMMONWEALTH of Pennsylvania, Appellant, v. Mitchell N. FILIUS, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 13, 1985.
    Filed Oct. 18, 1985.

      Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

When a defendant has been convicted of driving while under the influence of alcohol, does the sentencing court have discretion to place him on probation in lieu of sentencing him to prison for a minimum of 48 hours as mandated by statute? The sentencing court in this case expressed disagreement with legislatively mandated sentences of imprisonment and sentenced Mitchell N. Filius, who had entered a plea of guilty, to pay a fine of $300.00 and probation for a period of six months. We hold that this was an abuse of discretion; and, therefore, we reverse.

It is without question that the “legislature has exclusive power to determine the penological system of the Commonwealth, and it alone can prescribe the punishments to be meted out for crime.” Commonwealth v. Bozzi, 178 Pa.Super. 224, 230, 116 A.2d 290, 293 (1955), quoting Commonwealth ex rel. Green v. Keenan, 176 Pa.Super. 103, 106, 106 A.2d 896, 898 (1954). Accord: Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 587, 28 A.2d 897, 900 (1942); Commonwealth v. Hernandez, 339 Pa.Super. 32, 38, 488 A.2d 293, 297 (1985); Commonwealth v. Stone, 229 Pa.Super. 24, 26, 323 A.2d 184, 185 (1974).

The legislature, at 75 Pa.C.S. § 3731(e)(1), has provided that:

[a]ny person violating any of the provisions of this section is guilty of a misdemeanor in the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of: (1) not less than 48 consecutive hours. (Emphasis added.)

This section, beyond question, imposes a mandatory, minimum sentence of imprisonment for not less than 48 hours whenever a person has been convicted of driving while under the influence of alcohol.

This is clear from the legislature’s use of the word “shall.” See: Commonwealth v. Pryor, 347 Pa.Super.-, 500 A.2d 811 (1985). The use of the word “shall” when referring to the obligation of the court is intended to convey a lack of discretion on the part of the sentencing court. Cf. Zimmerman v. O’Bannon, 497 Pa. 551, 558-559, 442 A.2d 674, 678 (1982). The same intent is conveyed by the language of 75 Pa.C.S. § 3731(e)(3), where the legislature referred to “the mandatory penalties of this section” and directed that they not be superseded by sentencing guidelines applicable to other offenses.

In Commonwealth v. Pryor, supra, this Court held that a sentencing court could not avoid imposing the sentence mandated at 75 Pa.C.S. § 3731(e)(l)(ii) by granting immediate parole. That decision is controlling of the instant appeal. If a mandatory sentence of imprisonment cannot be avoided by an immediate grant of parole, it seems even more certain that a sentence of imprisonment cannot be avoided by the expedient of suspending the sentence of imprisonment and placing the defendant on immediate probation. To hold otherwise would be to vest in sentencing courts the discretion, at will, to ignore the legislative mandate.

Appellee argues that courts have an inherent power to suspend a sentence of imprisonment and that this power can be taken away only by express and unequivocal statutory enactment. This argument is lacking in merit. Courts do not have unfettered discretion to suspend sentences of imprisonment in favor of probation. The legislature

“alone can prescribe the punishment to be meted out for crime. It can provide fixed penalties or grant to the court such measure of discretion in the imposition of sentences as it may see fit. It may enact that prison confinement shall be the punishment for crime or may abolish prisons altogether and adopt some other method of enforcing the criminal law.”

Commonwealth v. Pryor, supra 347 Pa.Super. at-, 500 A.2d at 814, quoting Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 587, 28 A.2d 897, 900 (1942). The legislature, at 42 Pa.C.S. § 9721, has authorized probation as one form of sentence which may be imposed by a court, but it has carefully carved out an exception “where a mandatory minimum sentence is otherwise provided by law.” Therefore, it seems clear that the legislature has taken away from courts the power to impose a sentence of probation in those cases where a person has been convicted of driving while under the influence of alcohol.

It is unnecessary that we comment upon the wisdom of the legislative decision to deprive courts of the power to impose sentences of probation, irrespective of the facts, in a whole category of criminal cases. It is enough for our purposes that the legislature has the power to do so. The legislature discerned a need to act in response to societal harm being caused by drunken drivers and elected to exercise the power which it possessed to require that offenders be imprisoned. Whether the remedy will prove worse than the sickness, as some have predicted, can only be determined after the legislative enactment has had time to work its cure.

Reversed and remanded for resentencing. Jurisdiction is not retained.

      . The statutory language is as follows: “In determining the sentence to be imposed the court shall, except where a mandatory minimum

        sentence is otherwise provided by law, consider and select one or more of the following alternatives ...: (1) An order of probation____” (Emphasis added.)