author: PER CURIAM:

text:
    451 A.2d 557
    In re Elizabeth MANLEY, an Incompetent. Appeal of George RUGGIERI, Intervenor.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1981.
    Filed Oct. 8, 1982.

      Thomas P. Mohr, West Chester, for appellant.
    William Scott, Coatesville, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   PER CURIAM:

This appeal arises from an Action for Order of Court brought by the guardian of Elizabeth Ann Manley, an incompetent, pursuant to Sections 5521(23) and 5155(1) of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. §§ 5521(23), 5155(1) In that action, the guardian seeks court permission to sell real estate belonging to the incompetent’s Estate. Appellant is George Ruggieri, an intervenor and prospective purchaser of the real estate. He appeals from the Orphans’ Court order of November 13, 1980 issued in response to Petition to Intervene filed by appellee Leonard Giunta, another prospective purchaser of the same property.

The order of November 13, 1980 states in pertinent part: “. .. we grant the Petition to Intervene to the extent necessary to permit Leonard Giunta, George Ruggieri, and any other interested party to present bids, and we direct that counsel propose an acceptable procedure for receiving and evaluating bids ...” Because we conclude that this order is not a final order, we quash the appeal.

The relevant facts are the following. On July 7, 1977, Elizabeth Ann Manley entered into a written agreement with appellant Ruggieri wherein she granted him a “right of first refusal” if and when she might decide to sell her real estate at 520 Maple Avenue, West Goshen Township, PA. In January 1980, the Orphans’ Court declared Ms. Manley incompetent and named her niece Christine Campbell as her guardian. The Estate subsequently entered into negotiations with appellant Ruggieri for sale of the real estate to him. Before the results of these negotiations were formalized in a written contract of sale, appellee Giunta, through counsel, contacted the Estate and expressed an interest in purchasing the property. Giunta’s counsel was told that he need not submit an offer, because agreement had already been reached for the sale of the real estate to appellant Ruggieri.

On June 12,1980, the guardian executed an Agreement of Sale for the real estate with appellant Ruggieri for the price of $73,000.00.

On July 29, 1980, the guardian petitioned the Orphans’ Court for an Order of Court to allow the sale of the real estate to appellant Ruggieri. On August 7, 1980, before any hearing on this petition had been held, appellee Giunta filed a Petition to Intervene, alleging inter alia that he was willing to offer $80,000.00 for the real estate, and that his earlier offers to purchase the property had not been considered by the Estate. After a hearing, the Orphans’ Court issued the November 13, 1980 order that is the subject of this appeal.

We note at the outset that the Orphans’ Court did not by its order permit appellee to intervene as a party in the Order of Court proceeding. In effect, the court denied the Petition to Intervene, but sua sponte granted permission to appellee and other interested persons to submit bids on the property.

Section 5521(23) of the Probate, Estates and Fiduciaries Code confers broad supervisory powers on the Orphans’ Court with regard to the sale by guardians of real property belonging to the Estate of an incompetent. Under Section 5521(23), which incorporates PFC Section 5155(1), guardians are empowered to sell real property belonging to the Estate when the court determines that the sale is in the best interests of the incompetent. 20 Pa.C.S.A. §§ 5521(23), 5155(1). Pursuant to this supervisory authority, the Orphans’ Court is empowered to permit potential bidders on real property belonging to an incompetent’s estate to present relevant evidence in a proceeding for an Order of Court concerning whether a proposed sale of such real property is in the incompetent’s best interest.

It is well settled that orders which are not final are generally not appealable. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). In deciding whether an order permitting such testimony is final, this court considers whether the practical effect of such order is to put the appellants “out of court.” Alessandro v. State Farm Mut. Auto. Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979). The instant order, which permits appellant, appellee and others to present bids for the real estate to the court, does not put appellant out of court. The order is in the nature of an evidentiary ruling, determining factors that the Orphans’ Court proposes to consider in deciding the merits of appellant’s petition for an Order of Court. In Re Trust Under Deed of La Rocca, 485 Pa. 236, 401 A.2d 746 (1979) (where auditing court sought to develop the record before it and to facilitate decision on the reserved objection, order that accounts be filed did not dispose of the merits of any claim); Cf. Philadelphia Nat. Bank v. Lutherland, Inc., 286 Pa.Super. 48, 428 A.2d 232 (1981). The Orphans’ Court ruling on the Petition to Intervene in no way terminates the litigation or disposes of the entire case. In Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979).

Since the lower court’s order is not final, we quash this appeal.

      . 20 Pa.C.S.A. § 5521(23) reads:
      The provisions concerning the powers, duties and liabilities of guardians of incompetents’ estates shall be the same as those set forth in this code relating to personal representatives of decedents’ estates and guardians of minors’ estates with regard to the following: ...
      (23) Order of court, as in section 5155 (relating to order of court).
      20 Pa.C.S.A. § 5155(1) reads:
      Whenever the court finds it to be for the best interests of the minor, a guardian may, for any purpose of administration or distribution, and on the terms, with the security and after the notice directed by the court:
      (1) sell at public or private sale, pledge, mortgage, lease or exchange any real or personal property of the minor....

      . The order was filed in the Court of Common Pleas of Chester County on November 14, 1980.

      . Although neither party has moved to quash the appeal, this Court may raise this issue sua sponte. Jones v. Crossgates, Inc., 220 Pa.Super. 427, 289 A.2d 491 (1972).

      . The Agreement of Sale executed June 12, 1980 between the guardian and appellant Ruggieri states, at paragraph 4 of the Second Addendum to Agreement: “This sale of PREMISES and the settlement hereunder shall be contingent and conditioned upon the occurrence of the following events: a. SELLER obtaining approval of the Court of Common Pleas Of Chester County, of this Agreement of Sale, if required by said Court in any proceedings concerning Elizabeth Ann Manley .... ”

      . Ordinarily, an order permitting intervention is interlocutory and not appealable. Sailor Planning Mill & Lumber Company v. Moyer, 35 Pa.Super. 503 (1908); 15 A.L.R.2d 333; cf. Richard Held Builders v. A.G. Allebach, 266 Pa.Super. 101, 403 A.2d 113 (1979).

      . Cf. Section 5521(24) incorporating Section 3355. 20 Pa.C.S.A. §§ 5521, 3355. Section 3355 states that the court “on its own motion or upon application of any party in interest, in its discretion, may restrain a guardian from making a sale under an authority not given by the governing instrument or from carrying out any contract of sale made by him under an authority not so given.” (emphasis added.)

      . An order granting appellee the right to present a bid in a proceeding for an Order of Court, 20 Pa.C.S.A. §§ 5521, 5155(1), does not fall within any of the exceptions enumerated in Rules 311(a-c) of the Pennsylvania Rules of Appellate Procedure, Pa.R.App.R. Nos. 311(a), 311(b), 311(c).


source: Caselaw Access Project

license: Public Domain

text:
    451 A.2d 560
    Richard CORKELL and Mary Corkell, Appellants, v. William GAEBEL and Virginia Gaebel.
    Superior Court of Pennsylvania.
    Argued April 5, 1982.
    Filed Oct. 8, 1982.
    Petition for Allowance of Appeal Denied Feb. 15, 1983.

      William Emil Molchen, II, Coatesville, for appellants.
    Kevin J. Ryan, West Chester, for appellees.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   PER CURIAM:

Presently before the court is appellants’ Richard and Mary Corkell (hereinafter Corkell), appeal from the order of the lower court dated September 4, 1981, wherein appellees’ petition to open judgment was granted.

We affirm in part and modify in part.

The instant litigation between the parties had its genesis in January of 1980 when the appellees, William Gaebel and Virginia Gaebel (hereinafter Gaebel), filed a landlord and tenant complaint before a Justice of the Peace against the appellants seeking rental arrearages and possession of the premises. In response, appellants filed a cross-claim seeking the refund of all rents previously paid, upon the legal theory of appellees’ alleged breach of the implied warranty of habitability. Following hearing, the District Justice entered judgment for the Gaebels (the landlords) on the original landlord and tenant complaint and also entered judgment for the Gaebels on appellants’ cross-claim. Thereafter, appellants filed a notice of appeal and praecipe to enter rule to file a complaint upon the Gaebels.

As a result of Gaebels’ failure to timely file a complaint pursuant to appellants’ rule, appellants entered judgment of non pros against the Gaebels on Gaebels’ original landlord and tenant complaint. Not wholly satisfied with that result, however, appellants filed a complaint on their original warranty of habitability cross-claim which they denominated “in assumpsit and trespass”, containing six (6) counts and 63 paragraphs with 29 pages of exhibits. (As the lower court noted, the document was forty pages long.)

Following service upon the Gaebels and their failure to timely file a responsive pleading, and following notice pursuant to Pa.R.C.P. 237.1, appellants praeciped for judgment by default on May 6, 1980.

On July 15, 1980, appellees filed a petition with supporting brief to open default judgment. On July 17, 1980, the court issued the rule upon the appellants to show cause why the default judgment should not be opened. Following the filing of appellants’ answer and brief in opposition thereto, the lower court issued the appealed-from order. Thereafter, appellants brought the instant appeal.

As we ofttimes have stated, the lower court’s action in opening or refusing to open a judgment taken by default lies within the discretion of the lower court and we will neither substitute our judgment for that of the lower court nor reverse the action of the lower court absent a manifest abuse of discretion or an error of law. (Citations omitted).

A review of the entire record convinces us that the lower court committed neither an abuse of its discretion nor an error of law when it issued the appealed-from order.

It is obvious that the lower court was satisfied, as we are, that appellees’ petition to open judgment was timely filed; that appellees had a reasonable excuse for their delay in filing a responsive pleading to appellants’ complaint; and, as applicable only in actions in assumpsit, a meritorious defense may exist.

We also concur with the lower court’s finding that appellants’ failure to strictly comply with Pa.R.C.P. 1020(d) created confusion and constitutes an additional reason to afford the appellees the opportunity to defend this action on its merits.

For the foregoing reasons, we affirm the order of the lower court wherein appellees’ petition to open judgment was granted. However, we modify that portion of the appealed-from order wherein appellants’ complaint was stricken, and in lieu thereof grant appellants twenty (20) days leave to file a first amendment to its complaint in assumpsit and trespass in conformity of Pa.R.C.P. 1020(d).

Order affirmed in part and modified in part.

      . The text of the appealed-from order dated September 4, 1981, provides: The Petition to Open Judgment is hereby GRANTED. The plaintiffs’ Complaint is STRICKEN, without prejudice to their right to plead over within twenty (20) days of this date. This judge shall retain jurisdiction of this case and its companions. BY THE COURT: s/ Robert S. Gawthrop, III.


author: CAVANAUGH, Judge:

text:
    451 A.2d 678
    COMMONWEALTH of Pennsylvania, Appellant, v. Melvin C. WROTEN.
    Superior Court of Pennsylvania.
    Argued April 6, 1982.
    Filed Oct. 22, 1982.

      Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Darryl A. Irwin, Philadelphia, submitted a brief on behalf of appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CAVANAUGH, Judge:

In this case, the appellee, Melvin C. Wroton, was charged with criminal conspiracy, recklessly endangering another person, simple and aggravated assault, theft and robbery. The charges arose out of an incident allegedly involving the appellee, in which a passenger on a bus at four o’clock in the afternoon was attacked by a group of some five youths and robbed of jewelry. Appellee was arrested on June 23, 1980, and several postponements on the date of trial resulted in the run date being extended under Pa.Crim.P. 1100 to June 29, 1981. All parties agree that if trial had been commenced on or before June 29, 1981, that it would have been timely under Pa.R.Crim.P. 1100. Trial was scheduled for June 22, 1981, and the assistant district attorney, Elliot Present, Esquire, was in court ready to proceed on that date. Unfortunately, the appellee was not in court as he had not been “brought down” from Camp Hill where he had been transferred without notice to the court, the sheriff’s office or the Commonwealth prior to trial. Before the trial date the district attorney had issued a “bring down” order for appellee directed to the Graterford State Correctional Institution where the appellee had been confined. The Philadelphia District Attorney’s office did not know on June 22, 1981, that the appellee was not at Graterford and had in fact been transferred to Camp Hill which is located outside of Harrisburg some one hundred miles from Philadelphia.

Mr. Present requested Judge Halbert, the trial judge, to issue a bring down order directed to Camp Hill so that the appellee could be brought down immediately for trial. The judge, although aware of the June 29,1981 run date, refused to do so as he thought it would be impossible to bring the appellee down within one day’s time and defense counsel indicated that he would be unavailable after 2:00 p.m. that day. The assistant district attorney then requested trial on the earliest date consistent with court business and was told that July 2, 1981 was the earliest available date. Arrangements were made by the district attorney’s office to have the appellee present in court on July 2, 1981. On June 23, 1981, the district attorney’s office filed a petition for extension of time on which to commence trial to July 6, 1981.

On July 2, 1981 a hearing was held on the petition to extend the run date under Pa.R.Crim.P. 1100 before Bongiovanni, J. On the same date Judge Bongiovanni denied the petition to extend and also on the same date Judge Braxton granted the appellee’s oral motion to be discharged with prejudice because Judge Bongiovanni refused to grant an extension of time in which to commence trial. The Commonwealth has appealed from both orders.

The sole question before us is whether Judge Bongiovanni erred in refusing to grant the Commonwealth’s petition for extension of time in which to commence trial. The Commonwealth has the burden of proving by a preponderance of the evidence that it has met the requirement of Rule 1100(c), i.e., that despite the exercise of due diligence it was unable to bring the appellant to trial within the prescribed period. Commonwealth v. Akridge, 275 Pa.Super. 513, 419 A.2d 18 (1980). However, the preponderance of the evidence standard is the least burdensome standard of proof known to the law. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). In reviewing the lower court’s ruling that the Commonwealth has or has not met its burden of proving due diligence we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which is uncontradicted. Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981).

Under the applicable law the court below erred in denying appellant’s motion to extend the time for commencing trial. Within the run date the Commonwealth was ready to commence trial and was prevented from doing so by an administrative error which resulted in the bring down order being sent to Graterford rather than to Camp Hill. The prosecuting attorney requested the trial judge to order the appellant brought down from Camp Hill forthwith but the Judge refused to do so. The next available trial date was July 2, 1981 and defendant could readily have been brought down to Philadelphia by that date. In these circumstances, the prosecutor exercised due diligence in his attempt to have the appellant tried by June 29, 1981. He timely filed a petition for extension of time after learning that the next available trial date was July 2, 1981. As pointed out in Commonwealth v. Long, 288 Pa.Super. 414, 419, 432 A.2d 228, 231 (1981):

As long as the Commonwealth acted reasonably, in light of the facts and circumstances as they appeared at the time, the Commonwealth acted with “due diligence,” even if it appears in hindsight that there were other, possibly more desirable or efficacious methods that might have been tried. Commonwealth v. Hinton, 269 Pa.Super. 43, 48-52, 409 A.2d 54, 57-58 (1979) (Petition for Allowance of Appeal Denied December 10, 1979).

The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. “The ‘due diligence’ required. . . [in connection with Pa.R.Crim.P. 1100] does not demand a perfect diligence and punctilious care, but rather a reasonable effort.” Commonwealth v. Polsky, 493 Pa. 402, 407, 426 A.2d 610, 613 (1981). The Commonwealth could have gone to trial on or before June 29th but the earliest available trial date after June 22, 1981 was July 2, 1981. A judicial delay is a justifiable basis for an extension of time if the Commonwealth is ready to proceed. Commonwealth v. Cimaszewski, 261 Pa.Super. 39, 395 A.2d 931 (1978).

The court below was concerned that the Commonwealth did not introduce evidence to show what steps were taken between June 22, 1981 and the run date of June 29, 1981 to try the case on or before June 29, 1981. Obviously, the Commonwealth did nothing after June 22, 1981 to try the case before June 29, 1981 as the assistant district attorney was told that the next trial date available was July 2, 1981. The prosecutor’s office on June 23rd filed a timely petition to extend the time for commencing trial and steps were taken to assure that the appellant would be present for trial on July 2, 1981. The July 2, 1981 trial date was only three days beyond the run date and in the circumstances of this case the Commonwealth acted with due diligence to have the appellant tried within the time frame set forth in Pa.R. Crim.P. 1100.

Orders reversed and case remanded for trial in the court below on the earliest available trial date.

      . At the hearing on the petition for extension under Rule 1100, Mr. Present, the assistant district attorney, testified as follows in response to the questions of defense counsel, Mr. Irwin:
      MR. IRWIN: Mr. Present, is it your testimony that you requested of the court that even though the Defendant could not be brought down on the 22nd that he order the sheriff to bring him down on the 23rd, or the 24th?
      MR. PRESENT: That question requires some explanation.
      THE COURT: Answer and then explain.
      MR. PRESENT: I made a request for a forthwith bring-down. Whether the judge did it that day or the next day, or whenever, I wanted it as soon as possible.
      After that request was denied I asked for the earliest possible date.
      THE COURT: You asked for the earliest possible date for a court listing?
      MR. PRESENT: For a court listing as well. If they could have given me the Defendant on an earlier date I would have taken it.

      . Sgt. Keaveniy of the Philadelphia sheriffs office testified that a representative of the sheriffs office goes to Camp Hill about once a week or once every ten days to bring down prisoners for trial in Philadelphia. However, on rare occasions a judge will direct that a prisoner be brought down immediately for trial, and such order is complied with.

      . Pa.R.Crim.P. 1100 provides in pertinent part:
      (2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
      (c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.

      . Appellee relies on the case of Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012 (1978) to establish that the Commonwealth did not exercise due diligence. In the Bass case the defendant was incarcerated in New Jersey. The Commonwealth did not ask for the defendant’s return until February 10, 1976 even though it was apparent that the run date for all bills was January 29, 1976 unless an extension was granted under 1100(c). In its petition for an extension, filed after the expiration of the run date, the Commonwealth merely set forth the bare assertion that despite due diligence it was unable to try the case within the Rule 1100 run date, and failed to add anything to its assertion at the hearing on the petition. Appellee also relies on Commonwealth v. Davis, 261 Pa.Super. 204, 395 A.2d 1388 (1978) in which the appellant was incarcerated in New York and the Commonwealth wanted to exclude the New York incarceration period from the time limits set forth in Pa.R.Crim.P. 1100. This court remanded for a decision by the lower court on the issue of due diligence as nothing in the record before this court showed any due diligence by the Commonwealth. Neither case cited by appellee are applicable to the facts in this case.

      . Given the court’s refusal to issue a bring down order so that appellant could be tried by the run date, and the court crier’s statement that the earliest available trial date was July 2, 1981, the Commonwealth acted with due diligence notwithstanding lack of further efforts to have the trial by June 29, 1981.


author: SPAETH, Judge: HESTER, Judge,

text:
    451 A.2d 681
    Lorraine B. DAMERON, Appellant, v. WOODS RESTAURANT, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1981.
    Filed Aug. 20, 1982.
    Reargument Denied Oct. 28, 1982.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.

      Samuel H. Elkin, Pittsburgh, for appellant.
    Vincent C. Murovich, Pittsburgh, for appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   SPAETH, Judge:

This is an appeal from an order striking a confessed judgment. The judgment was confessed under a warrant of attorney contained in a commercial lease. As required by Pa.R.C.P. 2959(a), appellee filed a single petition asking the lower court to strike or open the judgment. In striking the judgment, the court relied on Edward Bershad Company v. Babe’s Bar, Inc., 254 Pa.Superior Ct. 477, 386 A.2d 50 (1978), which we had overruled, albeit less than two months previously, in Evans v. Blimpie Base, Inc., 284 Pa.Superior Ct. 256, 425 A.2d 801 (1981). Although appellee has argued that the judgment was properly stricken even without the authority of Bershad, we do not agree. Therefore we reverse and remand so that the lower court may consider whether the judgment should be opened.

Appellant owns a building in Pittsburgh, at 213-215 Wood Street. Appellee operates a restaurant in the building. On April 1, 1976, appellant and appellee entered into a lease. The lease included, in section 9.2, a warrant of attorney authorizing confession of judgment against appellee for possession and unpaid rent for the balance of the lease in the event of any default by appellee of its obligations under the lease not cured within 30 days. The lease also included, in section 3.4, a covenant that appellee would “not make or permit to be made any alterations, improvements and additions to the Leased Premises or any part thereof that affect the structural portions of the building, except by and with the written consent of the LESSOR first had.”

On January 3, 1980, appellant filed a “Complaint for Confession of Judgment in Ejectment and for Money Damages.” Paragraph 3 of the complaint incorporated by reference the lease, which was attached as an exhibit. Paragraphs 6 through 9 averred that contrary to the provisions of the lease, appellee had made alterations that affected structural portions of the building, including alterations to the roof and other parts of the building, to accommodate heating, ventilating and air conditioning equipment with a duct system running through to the roof; that these alterations were not made in accordance with applicable building and safety codes; and that the alterations had caused damage to the building. Paragraph 11 pleaded the terms of the warrant of attorney contained in the lease. Paragraph 12 averred that appellee had been given notice of its default of its obligations under the lease, and a copy of the letter giving notice was attached as an exhibit, and paragraph 13 averred that appellee had failed to cure the default.

The lower court properly read Edward Bershad Company v. Babe’s Bar, Inc., as restricting the entry of confessed judgment to cases where the propriety and amount of the judgment can be determined solely from the instrument that authorized the judgment, in this case, the lease. We overruled Bershad because it ignored the distinction between cases in which the amount due can be determined from the instrument, when the prothonotary may enter judgment, Pa.R.C.P. 2951(a), and cases in which the instrument authorizes confession of judgment but computation of the amount requires consideration of matters outside the instrument) Pa.R.C.P. 2951(b), when the action must be commenced by filing a complaint in the form provided by Pa.R.C.P. 2952. Evans v. Blimpie Base, Inc., supra. Here, appellant filed a complaint in the form provided by Pa.R.C.P. 2952, and it was clearly error for the lower court to strike the judgment because reference to matters outside the lease—but within the complaint—was necessary to determine the default and assess the amount due.

In arguing that the judgment was properly stricken even without the authority of Bershad, appellee says that accepting as true all of the averments of fact in appellant’s complaint, which for purposes of a petition to strike we must, Northway Village No. 3, Inc. v. North way Properties, Inc., 430 Pa. 499, 244 A.2d 47 (1968), still, the complaint does not clearly aver the occurrence of default. Also, appellee says, we must resolve any doubts about default in its favor, since confession of judgment is oppressive. Kline v. Marianne Germantown Corporation, 438 Pa. 41, 263 A.2d 362 (1970); Northway Village, No. 3, Inc. v. Northway Properties, Inc., supra.

Appellee’s statement of the law is correct. If, as is so here, the entry of judgment is conditioned on the occurrence of default, the failure of the complaint to plead that a default has occurred is a defect apparent on the face of the record and the judgment is subject to be stricken. However, we do not agree that appellant’s complaint does not sufficiently plead the default.

Pa.R.C.P. 2952(e) requires only that “if the judgment may be entered only after a default,” the complaint must contain “an averment of the default.” This may be contrasted with the requirement of Pa.R.C.P. 1019(b) that “[ajverments of fraud or mistake shall be averred with particularity.” Here, appellant’s complaint contains an averment that appellee has made alterations to the building contrary to Section 3.4 of the lease, “all of which constitutes a default thereunder.” Complaint, paras. 6, 8. Appellee objects that the complaint does not specify exactly when the alleged alterations were made or the extent of the alleged damage to the roof, but under section 3.4 neither the exact time of the work nor the extent of any damage is material to a determination of whether the covenant not to make structural alterations has been violated.

Appellee also argues that we should look to all of the sections of the lease in determining whether a default has been sufficiently pleaded. It argues that the work that appellant averred violated section 3.4 was in fact required by section 3.3 of the lease. Section 3.3 provides that appellee will maintain the building in a clean, safe and sanitary condition and will make all necessary interior repairs.

It would certainly have done no harm if appellant had included in her complaint an averment to the effect that appellee’s work not only violated section 3.4 but was not permitted by any other section. However, such an averment is fairly implied by the complaint as a whole. We believe that appellee’s argument that its actions were permitted or even required by sections of the lease other than section 3.4 is in the nature of an affirmative defense, and as such, not something that appellant was bound to plead. Such a defense must be pleaded by appellee as new matter, Pa.R. C.P. 1030, which means here, where judgment has been confessed, as part of its petition to open the judgment, Pa.R.C.P. 2959-2960. In fact appellee has so pleaded. Accordingly, on its petition to open it may offer whatever evidence it has in support of its affirmative defense.

The order of the lower court striking the judgment is reversed and the case is remanded for consideration of whether the judgment should be opened. We do not retain jurisdiction.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I dissent. I would affirm on the Opinion of Judge Farino of the court below.


author: WIEAND, Judge:

text:
    451 A.2d 684
    Sharon Brawdy DANIELS, an individual and Sharon Brawdy Daniels, parent and natural guardian of Robert George Daniels, a minor, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1981.
    Filed Aug. 27, 1982.
    Reargument Denied Nov. 10, 1982.
    Petition for Allowance of Appeal Denied Jan. 11, 1983.

      Mark E. McKinney, Pittsburgh, for appellants.
    Richard J. Federowicz, Pittsburgh, for appellee.

      Before WIEAND, JOHNSON and MONTEMURO, JJ.
   WIEAND, Judge:

Robert Daniels was killed on April 30, 1977 when an uninsured truck in which he was riding as a passenger left the road and collided with a utility pole. He was survived by a wife and son. A claim was made for survivor’s loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act and assigned to State Farm Mutual Automobile Insurance Company under Section 108 of the Act. When the claim was denied, an action in assumpsit was commenced to recover survivor’s loss benefits, plus attorney’s fees and costs. The assumpsit action resulted in the entry of a summary judgment in favor of the decedent’s wife and child. That judgment was affirmed on appeal. Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa. Super. 336, 423 A.2d 1284 (1980).

Eight days after the trial court had entered summary judgment, the Superior Court filed its opinion in Heffner v. Allstate Insurance Company, 265 Pa. Super. 181, 401 A.2d 1160 (1979), aff’d, 491 Pa. 447, 421 A.2d 629 (1980). Because of the decision in Heffner, decedent’s widow and son requested the Superior Court in which the direct appeal was pending to remand the action in order to permit a claim for work loss benefits. The Superior Court denied the request, holding:

“. . . Heffner did not change the law; it rather decided an issue of statutory construction not previously decided by an appellate court. Such an interpretation of legislative intent is regarded as part of a statute from the time the statute was enacted. Harry C. Erb, Inc., v. Schell Construction Co., Inc., 206 Pa.Super. 388, 213 A.2d 383 (1965); Buradus v. General Cement Products, 356 Pa. 349, 52 A.2d 205 (1947). Thus, our decision in Heffner did not create a new right to work loss benefits. That right existed all along. Contrary to appellee’s suggestion, in Heffner we did not redefine survivor’s loss; we simply analyzed the distinctions between work loss and survivor’s loss, noting that in the case of a deceased victim the work loss claim is comparable to a survival action and the survivor’s loss claim is comparable to a wrongful death action. 265 Pa.Super. at 181; 401 A.2d at 1164—1165; See also, [491] Pa. at [460], 421 A.2d at 636 (Supreme Court slip op. at 13-15). So viewed, work loss benefits are a separate type of benefit, which in the present case might have been claimed but were not; the complaint only claimed surviv- or’s loss benefits, in the maximum amount of $5,000, and judgment in that amount was entered.
In these circumstances, remand to permit a claim to be made for work loss benefits would be unwarranted. If such a claim is to be made, it must be by a separate action. We intimate no opinion as to what the outcome of such an action should be.

Daniels v. Allstate Insurance Co., supra, 283 Pa.Superior Ct. at 343-344, 423 A.2d at 1288.

After the direct appeal had been decided, the present appellants, despite the holding of the Superior Court, nevertheless filed a separate petition in the trial court requesting that they be allowed to file an amended complaint in the assumpsit action in order to assert a claim for work loss benefits. The petition was denied, and this appeal followed. We affirm.

The trial court correctly observed that when this case was previously before the Superior Court, a panel denied appellants’ request that the action be remanded to allow an amendment. The prior decision of this Court was the law of the case and prevented the trial court from re-opening the instant litigation. Albright v. Wella Corporation, 240 Pa.Super. 563, 567, 359 A.2d 460, 463 (1976). “A lower court is without power to modify, alter, amend, set aside or in any manner disturb or depart from the judgment of the reviewing court as to any matter decided on appeal.” Haefele v. Davis, 380 Pa. 94, 98, 110 A.2d 233, 235 (1955). Accord: Commonwealth v. Romberger, 474 Pa. 190, 193-194, 378 A.2d 283, 284 (1977); Drew v. Laber, 277 Pa.Super. 419, 423, 419 A.2d 1216, 1218 (1980); Blymiller v. Baccanti, 236 Pa.Super. 211, 213, 344 A.2d 680, 681 (1975). Similarly, “[i]t is a general rule of law that issues decided by an appellate court on a prior appeal between the same parties will not be reconsidered on a second appeal.” Albright v. Wella Corporation, supra, 240 Pa.Super. at 567, 359 A.2d at 463. See also: Commonwealth v. Tick, Inc., 431 Pa. 420, 427, 246 A.2d 424, 427 (1968); Kuchinic v. McCrory, 422 Pa. 620, 625 n. 7, 222 A.2d 897, 900 n. 7 (1966); Delaware River Port Authority v. Pennsylvania Public Utility Commission, 408 Pa. 169, 174, 182 A.2d 682, 684 (1962); Blake v. Mayo Nursing and Convalescing Home, Inc., 245 Pa.Super. 274, 279, 369 A.2d 400, 402 (1976); Bonfitto v. Nationwide Mutual Insurance Co., 195 Pa.Super. 546, 550, 172 A.2d 176, 178 (1961), aff’d, 406 Pa. 184, 177 A.2d 453 (1962). “Under any other rule, litigation would never cease, and finality and respect for orderly processes of law would be overcome by chaos and contempt.” Haefele v. Davis, supra 380 Pa. at 98, 110 A.2d at 235.

Thus, we will not now consider the argument made by appellants that the prior panel of this Court was in error when it refused to remand to allow an amendment to allege a claim for work loss benefits. We observe, however, that if the claim for work loss benefits be, as appellants contend, an enlargement of the ad damnum clause of the original complaint and, therefore, not assertible in a separate action, the trial court was nevertheless correct in denying the petition to amend. Appellants’ assumpsit action, presenting a claim under the Pennsylvania No-fault Motor Vehicle Insurance Act, had been litigated to final judgment. That judgment was res judicata not only as to damages actually claimed therein but also as to damages that might have been claimed. See: Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968); Helmig v. Rockwell Manufacturing Company, 389 Pa. 21, 29-31, 131 A.2d 622, 626-627 (1957); Kiely v. J.A. Cunningham Equipment, Inc., 387 Pa. 598, 128 A.2d 759 (1957); Bardo v. Commonwealth of Pennsylvania, Department of Public Welfare, 40 Pa.Cmwlth. 585, 589, 397 A.2d 1305, 1307 (1979); Jenkins v. Jenkins, 246 Pa.Super. 455, 463-464, 371 A.2d 925, 929-930 (1977). This is a principle of law pertaining to the finality of judgments. The complaint could not thereafter be amended to assert a claim for additional damages.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq.

      . 40 P.S. § 1009.108.


author: BROSKY, Judge:

text:
    451 A.2d 687
    Albert P. VARGAS, Appellant, v. R.K. BRINTON and Lula P. Brinton, his wife. Albert P. VARGAS v. R.K. BRINTON and Lula P. Brinton, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1981.
    Filed Oct. 1, 1982.

      Walter K. Swartzkopf, Harrisburg, for Vargas, appellant in No. 141 and appellee in No. 142.
    David C. Eaton, Harrisburg, for Brinton, appellants in No. 142 and appellees in No. 141.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge:

Albert P. Vargas, appellant, brought an action to partition land owned by him and R.K. Brinton and Lula P. Brinton, appellees. The lower court granted the petition and partitioned Vargas’ portion of the property, a Vs share. Exceptions were filed which were subsequently denied. This appeal followed in which Vargas claims that he owned a Vi share in the property and that the trial court improperly limited the partition to a Vs portion. The Brintons filed a cross-appeal in which they contend that no partition should have been permitted.

Vargas attacks the lower court’s determination on two grounds. First, he claims that the trial court improperly applied the parol evidence rule. Second, he asserts that the trial court improperly determined his fractional interest in the property. Vargas states also that the trial court’s decision to partition the property was proper. We agree that the Vargas’ share in the property is a Vi interest and reverse that part of the lower court’s order awarding him a Vs share. We affirm the order granting partition.

The facts out of which this dispute arises are as follows. Albert Vargas and his wife, Irene Vargas, acquired title to a farm in Saville Township, Perry County, Pennsylvania, in 1939. On April 27, 1946, the Vargases conveyed to the Brintons an undivided Vi interest in the farm. In 1959, the other undivided V2 interest was conveyed to a straw man, Charles Kugler, Esquire. In 1959, a deed was entered in which the interests of the parties were described in the following manner:

CHARLES W. KUGLER and MARGARET K. KUGLER, his wife, of the Borough of Bloomfield, Perry County, Pennsylvania, GRANTORS
AND
ALBERT P. VARGAS AND IRENE VARGAS, his wife, of the city of Harrisburg, Dauphin County, Pennsylvania and R.K. BRINTON and LULU P. BRINTON, his wife, of Saville Township, Perry County, Pennsylvania, as joint tenants with right of survivorship and not as tenants in common.

In 1975, Irene Vargas died and Albert Vargas, feeling no need for use of the property, brought an action to partition it.

A joint tenancy with right of survivorship may be severed by a tenant if any of the four “unities” necessary for the existence of such a tenancy is destroyed. Estate of Kotz, 486 Pa. 444, 406 A.2d 524 (1979); In Re Laredon’s Estate, 439 Pa. 535, 266 A.2d 763 (1970); Sheridan v. Lucey, 395 Pa. 306, 149 A.2d 444 (1959); Starger v. Epler, 382 Pa. 411, 115 A.2d 197 (1955); Simpson’s Lesee v. Ammons, 1 Binn. 175 (1806); Davidson’s Lessee v. Heydon, 2 Yeates 459 (1799). A partition action which is taken to judgment is sufficient to sever a joint tenancy with right of survivorship. Sheridan, supra.

The Brintons do not contest the right to sever by partition in general, however, they do contend that an oral agreement existed between the parties which effectively limited the right to partition or that by implication the partition limitation existed. Vargas contends that any evidence of any such an agreement should not be admitted because of the statute of frauds and the parol evidence rule and that no such limitation should be implied. Initially, we note that an agreement limiting the right to partition may be express or “implied from the circumstances in which the property is acquired or is held.” Shoup v. Shoup, 469 Pa. 165, 171 n. 9, 364 A.2d 1319, 1323 n. 9 (1976). It is clear that there was no express agreement regarding partition in the 1959 deed.

The trial court, relied upon a decision from the Court of Common Pleas of Montgomery County, Duffy v. Duffy, 81 D & C 366 (1951). The Duffy, supra, court held that parol evidence was admissible to prove the existence of an agreement to limit partition because the deed in which the conveyance was recorded contained no reference to whether the joint tenants intended the residence to remain a family home until only one of the joint tenants was living. The court admitted the evidence to establish the true relationship of the persons on one side of a contract. Vargas argues that Duffy, supra, should not apply herein.

In American Bank and Trust Company v. Lied, 487 Pa. 333, 340, 409 A.2d 377, 381 (1979), our Supreme Court said:

The usual formulation of the parol evidence rule forbids the introduction of parol evidence of antecedent or contemporary agreements, negotiations and understandings of the contracting parties for the purpose of varying or contradicting the terms of a contract which both parties intended to represent the definite and complete statement of their agreement. Corbin on Contracts, § 573; Boyd Estate, 394 Pa. 225, 146 A.2d 816 (1958).

In considering the evidence offered in the instant case, it is clear that it was properly admitted. The contract was silent as to any limitation on partition. Certainly, there is a right to partition. See infra. We cannot hold, however, that the existence of such a right when not specifically stated in a document representing the contract for the sale of real estate, such as the one found herein, presents our court with a fully integrated document for parol evidence rule purposes with regard to the issue of partition. Clearly the right to partition exists, however, so does the right to limit partition, see infra. Thus, the evidence of an oral agreement to limit partition does not vary or contradict the writing. It cannot because the writing was silent on the subject. Cf: Cilvik Estate, 439 Pa. 522, 267 A.2d 836 (1970); The evidence was properly admitted. We are not satisfied, however, as the trial court was not, that the evidence of a limitation on partition admitted at trial was sufficient for the court to conclude that such a limitation existed.

The trial court correctly described the facts presented in the case and properly concluded, when it said:

It is clear from both the testimony and the deed that the survivor was to acquire the farm. This, however, is a standard conclusion on all joint tenancies with rights of survivorship. The fact that the Law operates to vest title in a survivor when property is held as such does nothing to assist the Court in determining the question of whether an agreement not to partition existed. The survivorship wording is, of course, consistent with an agreement not to partition, but not conclusive evidence of such an agreement. We find no writing on its face sufficient to preelude partition and if such an agreement not to partition existed, it must have been either oral or implied. The Court can recall nothing in the testimony to indicate that any of the parties actually said to one another that none of them would partition or sell or do anything to adversely affect the desire of all parties to eventually vest title in the surviving joint tenant.

The Brintons argue also that a limitation on partition was created by implication. Shoup, supra. The record is replete with evidence that the Vargases and the Brintons used the property for many years. There is evidence that they intended that the survivor of the four individuals should eventually own the property. There is, however, no evidence indicating any agreement by implication that the property would not be partitioned.

Finally, Vargas argues that the trial court after granting his petition to partition should have awarded him a lA interest in the property rather than a Vi; interest. He asserts that the deed established that the two couples would own the property as joint tenants with right of survivorship. Thus, he contends each couple represented a separate entity owning lA of the property and that as one person died by way of tenancy by the entireties the spouse inherited his or her share. We agree. The Vargases owned lA of the property as tenants by the entireties and the Brintons owned V2 of the property as tenants by the entireties. When Irene Vargas, his wife, died Mr. Vargas inherited her share in the property making him owner of XA thereof.

In Edel v. Edel, 283 Pa.Super. 551, 424 A.2d 946, footnote 5, this court commented, “It is also instructive to note that whenever property has been conveyed to a married couple and to a third party, the tendency in Pennsylvania has been to find ‘that the one-half interest of the married couple, although held by the entireties as between themselves, [is] held in common in relation to the interest of’ the third party.” We clearly recognized in Edel that the interest of husband and wife as between themselves is of a different nature than is their interest vis a vis the other property owners.

It is axiomatic that the death of a tenant by the entireties results in ownership by the surviving spouse of the interest held by the deceased and that spouse.

This principle was illustrated in Margante v. Ewald, 252 Pa.Super. 244, 381 A.2d 480 (1977), in which there had been a conveyance to a husband and wife and a third party. We determined that the interest held by husband and wife was owned by them as a tenancy by the entireties. They owned a one-half interest in the property and we held that upon the death of the first spouse, the survivor became the sole owner of the entireties interest. See also n. 4, 252 Pa. Super, at 249, 381 A.2d at 483.

The same result is in order in the present case. To find that the death of a spouse results in the surviving spouse owning less than the share owned by the couple by tenants by the entireties, would render such tenancies meaningless.

Therefore, the order of the lower court is reversed insofar as it awards only a Vs interest to Mr. Vargas and he is instead awarded a Vi interest.

      . The agreement executed in 1946 provided for an equal sharing of profits and expenses between the Vargases and the Brintons. It also provided that the Vargases could occupy a bedroom in the farmhouse where the Brintons lived, whenever they chose to do so.
      It is noted also that these transactions were the probable consequence of the fact that R.K. Brinton was Irene Vargas’ son by a former marriage.

      . There is no contention by either party that a joint tenancy with right of survivorship was not created by the language in the 1959 deed.

      . The four “unities” of ownership are:
      The interests of joint tenants are equal. They own the half or the whole, per my et per tout. There is a unity of interest, title, time, and possession.

        Cochrane’s Estate, 342 Pa. 108, 111, 20 A.2d 305, 307 (1941).

      . Vargas does not argue on appeal that the evidence should have been excluded because of the statute of frauds. Warden v. Zanella, 283 Pa. Super. 137, 423 A.2d 1026 (1980). We, therefore, will not address any possible statute of frauds contention. Pa.R.A.P. 301.

      . Duffy, supra, is cited as the law of Pennsylvania in Contractual Provisions as Affecting Right to Judicial Partition, 37 A.L.R. 962. The appeals court of Massachusetts has also relied favorably on the analysis presented in Duffy, supra. Alexander v. Snell, 12 Mass. App. 323, 424 N.E.2d 262 (1981).


author: POPOVICH, Judge:

text:
    451 A.2d 690
    COMMONWEALTH of Pennsylvania v. Lloyd A. ROCHESTER, Appellant. COMMONWEALTH of Pennsylvania v. Ronald WALSTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 16, 1981.
    Filed Oct. 1, 1982.
    Petitions for Allowance of Appeal Denied March 18 and June 13, 1983.

      Robert F. Pappano, Assistant Public Defender, Media, for appellants.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is a consolidated appeal involving two juveniles, Ronald Walston and Lloyd Rochester, each found guilty after a jury trial of involuntary manslaughter, robbery, and conspiracy. We affirm.

The facts surrounding the instant appeal, as summarized by the court below are as follows:

On December 26, 1979, the victim, John McGinn, was robbed in the City of Chester, Pennsylvania. As a result of the incident, the victim suffered a heart attack and was taken to a nearby hospital where he died on January 19, 1980.

When the police were investigating the incident, they received a statement from Gary Williams, who implicated one of the appellants, Lloyd Rochester, in the robbery. The court issued an order authorizing the police to take Rochester into custody in order to have fingerprints and photographs taken. During the time that Rochester was at the police station waiting for his parents to arrive, another youth, William Walston, brother of appellant Ronald, implicated Lloyd Rochester in the robbery. Before the police questioned Rochester, he was given Miranda warnings in the presence of his mother. After Rochester examined the statement made by William Walston, Rochester agreed to make a statement.

The other appellant, Ronald Walston, also was implicated in the robbery. However, Walston, at the time, was in the state of Maryland where he had been arrested. Walston waived extradition, and, as a result, he was remanded to the custody of the Delaware County Sheriff in Pennsylvania. When Walston arrived at the police station, his mother was summoned, and the police read Walston’s Miranda warnings in the presence of his mother. Questioning by the police began, and Walston then proceeded to implicate two other individuals at which time the interrogating officer informed Walston that he had more than enough evidence to prosecute him.

Subsequently, Ronald Walston’s mother advised him to speak the truth. At this time, Ronald Walston gave an inculpatory statement. A redacted version of the statement was introduced by the police officer at the trial and also was used for impeachment purposes at trial after he testified on his own behalf. Rochester’s statement was not introduced into evidence by the prosecution at the trial, although the prosecution alluded to the statement in cross-examining him.

Initially, the court suppressed the statements made by both appellants on the grounds that the police failed to advise the juveniles and the interested adults after advising them of their Miranda rights that they can consult with each other in private before any interrogation can proceed. The prosecution subsequently filed a petition for reconsideration in light of the remand ordered by the United States Supreme Court to our Supreme Court in Commonwealth of Pennsylvania v. Henderson, 446 U.S. 905, 100 S.Ct. 1829, 64 L.Ed.2d 256 (1980) for further consideration in light of a decision stating that a totality of the circumstances approach is adequate to determine whether a juvenile has waived his Miranda rights under federal law. See Fare v. Michael C, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). A hearing was held, and the court below reversed its position. This appeal followed.

Objections were made at trial and post-trial and the issue is, therefore, preserved for review. The first issue presented in this appeal is whether the prosecution met its burden of proving by a preponderance of the evidence that appellants knowingly, voluntarily, and intelligently waived their Miranda rights. See Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979); Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977). Because appellants were both juveniles at the time of their arrests, the prosecution in establishing its burden had to prove that the appellants had access to the advice of an attorney, parent, or other interested adult in addition to proving that the consulted adult was informed as to the constitutional rights available to the minor and as to the consequences attendant to the election made. See Commonwealth v. Schroth, 495 Pa. 561, 435 A.2d 148 (1981). Appellants suggest that the suppression court erred when it concluded that the statements were admissible. Hence, on appeal our duty is to examine the record of the suppression court and “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977) (quoting Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975)). The scope of the rule governing a juvenile defendant’s waiver of his Miranda rights in Pennsylvania, as the McCutchen or “interested adult” rule, is the crux of the issue before this Court today. Appellants contend that the police should have informed the juveniles that they have an opportunity to consult in private before any interrogation may proceed. We cannot agree with appellants.

The reasoning behind the McCutchen rule is that “the inexperience of the minor affects not only his or her ability to understand the full implication and consequences of the predicament but also renders the judgment inadequate to assess the spectrum of considerations encompassed in the waiver decision. It was therefore reasoned that the impediment of immaturity can only be overcome where the record establishes that the youth had access to the advice of an attorney, parent, or other interested adult and that the consulted adult was informed as to the constitutional rights available to the minor and aware of the consequences that might follow the election to be made.” Commonwealth v. Smith, 472 Pa. at 498, 372 A.2d at 800.

In examining whether the dictates of Commonwealth v. McCutchen, supra, have been followed, our courts have articulated three factors: “(1) the juvenile must be given the opportunity to consult with an adult; (2) the adult must be one who is genuinely interested in the welfare of the accused juvenile; and (3) the interested adult must be informed and aware of those Fifth and Sixth Amendment rights guaranteed to the juvenile.Commonwealth v. Barnes, 482 Pa. at 560, 394 A.2d at 464 (citations added).

Although certain language appearing in a prior opinion of our Supreme Court would seem to indicate that a fourth requirement has been engrafted onto the McCutchen rule, the statement was dictum and hence is not binding upon us. See Hunsberger v. Bender, 407 Pa. 185, 180 A.2d 4 (1962). In Commonwealth v. Barnes, supra, appellant, a juvenile, was transported to the police station and later questioned without first being given his Miranda rights. Appellant indicated a desire to waive his rights and also stated that he did not want his father to be present at that time. Our Supreme Court applied the three factors enunciated above (i.e., opportunity to consult, interested adult, and an informed adult) and concluded that “the Commonwealth did not satisfy these prerequisites.” Id., 482 Pa. at 560, 394 A.2d at 464. Additionally, that Court stated:

“Shortly after appellant’s arrival at the PAB, the police knew where appellant resided, and that he lived with his father. In spite of this knowledge, the record shows no effort by police to contact appellant’s father before interrogating appellant about the homicide. In fact the only evidence leads to the conclusion that appellant’s father was only notified of his son’s status shortly before the arraignment, some five or six hours after appellant made his inculpatory statement. The only adults ‘consulted’ by appellant prior to arraignment were police officers. The Commonwealth argues that appellant voluntarily waived his right to consult with an interested and informed adult. To accept this argument would render meaningless the protection afforded to juveniles by McCutchen. The essence of our doctrine relating to juvenile waiver is that the benefit of consultation with counsel or an interested, concerned and knowledgeable adult prior to a decision to waive Fifth and Sixth Amendment rights counterbalances the immaturity of the youthful accused. Commonwealth v. Smith, supra. It is only after a meaningful consultation has taken place that it can be found that the disadvantage occasioned by the juvenile’s immaturity has been offset to some degree. Since the ultimate decision, even after the consultation, must be made by the juvenile, his immaturity can not be completely removed from the equation. At best we can hope by this process to impress upon him the seriousness of the decision and to apprise him of his options and the consequences that might follow the path he elects. The Commonwealth lays great stress on the fact that appellant expressed a desire not to speak with his father. This is the type of decision that reflects the immaturity that the doctrine is designed to guard against. Obviously the appellant was more concerned with parental disapproval and failed to perceive the more important need at that moment for consulting with one who was concerned with his welfare. It is only after a meaningful consultation that we can be satisfied that the juvenile possesses an informed judgment capable of making such a grave decision. We therefore decline to adopt the argument urged by the Commonwealth.”
Id., 482 Pa. at 560, 394 A.2d at 464 (footnote omitted) (Emphasis added); See also Commonwealth v. Smith, 472 Pa. at 502, 372 A.2d at 803 (Concurring Opinion by Manderino, J.) (“I would like to add, however, that in addition to the three pre-requisites discussed by the majority opinion, the prosecution must show that meaningful consultation between the juvenile and the interested and informed adult actually took place.”)

Thus, our Supreme Court’s decision in Barnes was reached after applying the traditional three step analysis.

When those criteria are applied to the record before us, we are satisfied that appellant voluntarily, understandingly, and intelligently waived his Miranda rights.

Although appellants were arrested at different times, the record shows that no questioning commenced until each appellant had been informed of his Miranda rights. Additionally, interested adults were present at the time the police had informed them of their rights. The police officers after each question asked both the appellants and their parents whether they understood the warnings, and there was no indication that they did not. The record indicates that the appellants’ confessions were prompted by statements given by other actors implicating both appellants.

Appellants contend that the statements they gave were not voluntarily, understandingly, and intelligently given because the police failed to inform them and their parents before questioning that they had the right to confer out of the presence of the police officers. Because a private consultation was not afforded in this case, appellants argue that their statements must be suppressed as matter of law. Requiring the prosecution to prove additionally that the appellant and the interested adult met in private (i.e., out of the presence of the police officers) creates an irrebuttable presumption that the adult’s presence at the hearing was insufficient to offset the “overbearing presence of the law” during the interrogation. Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948). Although our Supreme Court in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) stated in a similar case that the interested adult’s “mere presence [was] not enough”, id., 459 Pa. at 395, 329 A.2d at 289, that case is distinguishable. In Roane, the police ignored the defendant’s mother’s request to seek the advice of counsel. That Court stated the following:

“Since the record indicates that the Commonwealth first attempted to exclude appellant’s mother from the interrogation and then, when she finally gained access, did not afford her an opportunity to advise her son privately about his constitutional rights, although she indicated that she wished him to be afforded the right of counsel, we hold that the Commonwealth failed to establish that appellant’s waiver of his rights was a knowing and intelligent one. Accordingly, his confession should have been suppressed.” Id.

Thus, because the parent did not join in the waiver, our Supreme Court concluded that the defendant was denied the opportunity to consult. In the instant case the parent advised the juvenile to speak the truth and did not request the advice of counsel. Under these circumstances, we are satisfied that the prosecution met its burden in establishing that appellants entered into a voluntary, understanding, and intelligent waiver of their Miranda rights since the record indicates that a parent was present during each interrogation. See Commonwealth v. Starkes, 461 Pa. 178, 189, 335 A.2d 698, 703 (1975) (plurality opinion) (“where an informed adult is present the inequality of the position of the accused and police is to some extent neutralized and due process satisfied.”).

In any event, with respect to appellant Rochester, the record reveals that appellant testified substantially in accord with his statement; therefore, appellant’s allegation of error may have been harmless under the circumstances. See Commonwealth v. Rice, 271 Pa.Super. 425, 413 A.2d 739 (1979).

With respect to the other issues raised, with one exception, those issues are similar. Appellant, Ronald Walston, argues separately that his statement should be suppressed “because it was a product of coercion arising out of the totality of the circumstances.” Brief for Appellant at 9. Appellant bases his argument on the following alleged psychologically and physically coercive police tactics:

“The appellant had not eaten since breakfast. He testified that he was scared. It is argued that Commodore Harris was both overbearing and overreaching; also, that he threatened the appellant. It is also argued that Harris was in a hurry and did not adequately explain either the charges against the appellant or the Miranda warnings to either him or his mother.” Id.

Appellant’s contention concerns the voluntariness of his statement which he gave to the police which must be examined in accordance with the following guidelines:

“The test of voluntariness is whether the confession was the product of an essentially free and unconstrained choice by its maker. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1057 (1961). In determining the voluntariness of a statement, the totality of the circumstances must be considered. Commonwealth v. Starkes, 461 Pa. 178, 184, 335 A.2d 698, 701 (1975). More specifically, there must be considered the age of the accused; his education level; his inteeligence; his physical state; the duration and method of interrogation; the conditions of detention; the advice given to him concerning his constitutional rights; and any other circumstances pertinent to the inquiry.” Commonwealth v. Eackles, 286 Pa.Super. 146 at 151, 428 A.2d 614 at 617.

Applying these standards, the record reveals that appellant Walston was 15 years of age at the time of his arrest. Additionally, at the time that an arrest warrant was filed against him in Pennsylvania, he was at a juvenile facility for delinquents because of theft and robbery charges brought against him in Salisbury, Maryland. After appellant waived extradition, he arrived at the police station in Delaware County, Pennsylvania. Appellant’s mother arrived at the station, and she was informed by Detective Harris in the following manner:

“A Pursuant to law I am informing you that I am Sergeant Commodore Harris of the Chester Police Department. You are now in custody and charged with homicide and other crimes, aggravated assault and others and may be charged with other crimes. You have the right to remain silent. However, if you say anything, you can and—anything, such can and will be used against you in a court of law. Do you understand this? Both of them said they understood. You have the right to talk to a lawyer before answering any questions and have a lawyer with you before and during questioning. Do you understand this? And he said, yes, he did. And his mother said she understood. If you cannot afford a lawyer you have the right to have a free lawyer appointed for you before any questions are asked and during any questioning. This free lawyer is at no expense or cost to you. Do you understand this? And both of them stated that they did.
During questioning, you may stop at any time and refuse to answer any further questions. Do you understand this? And both of them said that they did. Do you want a lawyer? And they said no. He didn’t want a lawyer. And he said, no, because he didn’t have anything to do with it.
Q Is that what he said?
A Yeah. He didn’t have anything to do with it at that time.
Q Now, approximately what time did that take place that you warned him of his rights?
A That was about twenty minutes to four, twenty minutes to five, somewhere around in there.
Q What next happened?
A Then I went to type up a sheet advising them of the rights and everything on the statement sheet.
Q All right. That is the same procedure?
A The same procedure.
Q That is applied to the other three statements as well; is that right?
A That is correct.
Q The questions that you asked on the statement sheet and the responses that you received, the statements were read to both the mother and also to Ronald?
A That’s correct.
Q And the answers would have been from both of them? A That’s correct.
Q Now, while they were there, that is Ronald was there, did he talk with his mother?
A Yes.
Q Do you recall what he said to his mother?
A I can’t explain—I think—in order for me to answer that question, I would have to go to another question that you’re going to ask me in reference to about the statement, see, before I can even—o.k., if you want me to, I will explain to you what I did, all right?
Q Very well.
A What had happened was after he signed the sheet and everything—
Q The statement sheet?
A The statement sheet and everything his mother and him—his mother told him tell the truth exactly what happened, o.k. So he starts in the story that he did nothing, that his brother William did nothing, just Lloyd and Lloyd—
THE COURT: James?
A And James did it all, you know. So then I showed him the statements that I received from the three brothers— from the three other gentlemen and also the—what his brother had stated to me, his brother William had stated to me that he had done.” (Notes of Suppression Hearing at 70-73).

Appellant Walston eventually confessed after his mother encouraged him to speak the truth. Despite appellant’s allegations that the police coerced his confession, the prosecution’s evidence contradicted that evidence. Hence, the question of voluntariness was properly submitted to the jury, and the jury’s resolution of that issue will not be disturbed on appeal since it is supported by the record.

Appellant Rochester argues that his statement should be suppressed on an additional ground. That is, Rochester contends that his statement was the product of an illegal arrest. We cannot agree.

The record reveals that Rochester was picked up by the police in order to have photographs taken in furtherance of a police investigation. The court issued an order pursuant to 42 Pa.C.S.A. § 6324 which provides:

“A child may be taken into custody:
(1) Pursuant to an order of the court under this chapter.
(2) Pursuant to the laws of arrest.
(3) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child is suffering from illness or injury or is in imminent danger from his surroundings, and that his removal is necessary.
(4) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child has run away from his parents, guardian, or other custodian.
(5) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child has violated conditions of his probation.
1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.”

Additionally, since appellant Rochester was fifteen years of age the police had “the authority to take or cause to be taken the fingerprints or photographs, or both, of any child 15 years of age and older who is alleged to have committed a delinquent act. ...” 42 Pa.C.S.A. § 6308(c)(1).

At the time that appellant Rochester was taken to the police station for photographing and fingerprinting, the record shows that appellant would have been free to leave. However, while Rochester was at the station, he was implicated in the robbery by two other individuals. Thus, under these circumstances, Rochester’s arrest was not illegal since probable cause coalesced while appellant was at the police station.

The next issues concerns both appellants and whether the trial court erred in refusing to appoint a forensic pathologist to aid defense counsels in preparing their case.

A review of the record discloses that even though both appellants asserted their innocence in the criminal episode, they argued that a pathologist was necessary because a period of one month lapsed between the time that the robbery occurred and the date that the victim died.

Defense counsel for appellant requested that the court appoint a pathologist during the suppression hearing. The following colloquoy occurred:

[Attorney for Appellant Rochester]
“MR. FRIEDMAN: Your Honor, I have two motions still left in my omnibus motion. One, a motion for appointment of a special investigator which I very much need in this case for a number of witnesses and the other which I vitally need in this case is a motion for appointment or an allowance for a forensic pathologist. The forensic pathologist, perhaps I should state—this was a situation where the alleged attack occurred on December 26th.
THE COURT: Oh, I understand—
MR. FRIEDMAN: It was more than three weeks.
THE COURT: I read the notes of testimony as I indicated and I read the medical examiner’s testimony and I understand that some might contend that there is a problem as to causation; I understand that.
MR. FRIEDMAN: I should add that as far as the cost of this goes, Ronald Walston’s counsel and I have discussed this as for all of us having agreed that if the cases were not severed that they would share in the use of a forensic pathologist. We are not trying to obtain exorbitant sums of money from the County for this purpose, but that causation issue since it is now to be a joint trial would be a joint issue.
THE COURT: Have you spoken to anybody?
MR. FRIEDMAN: A pathologist?
THE COURT: Yes.
MR. FRIEDMAN: I have spoken to a pathologist. He is not a forensic pathologist. I have spoken to him informally. I have spoken to several other physicians who are members of my family regarding this. And it affirms my need for a forensic pathologist.
THE COURT: I suggest you find out what a pathologist is going to charge you and I will tell you whether I am going to approve that charge or whether I won’t approve it. I just can’t give you a blank check.”
Notes of Suppression Hearing at 73a—75a.

According to appellee, the court denied the request after it was informed that the estimated cost of a pathologist would be $1,000.00 for testifying in court and $500.00 for preparing that testimony. Appellee’s brief at 20. However, the record fails to elaborate on whether further action was taken on this issue. Nonetheless, despite this irregularity, we have addressed the merits of the issue in the interest of judicial economy.

To begin with, there is no constitutional obligation in Pennsylvania to provide expert assistance at the Commonwealth’s expense. Additionally, there is no statutory mandate authorizing payment specifically for the appointment of a pathologist or other expert witness. See Commonwealth v. Davy, 456 Pa. 88, 317 A.2d 48 (1974) (where a legislative act “placed the costs of misdemeanor prosecutions upon the county in the first instance.”); See also 42 Pa.C. S.A. §§ 1722(a)(1), 3722, and 5903; See generally ABA Standards, Providing Defense Services § 1.5. In view of the above, the pertinent question becomes whether the trial court abused its discretion in denying the appointment of a forensic pathologist. We conclude not.

According to the record, attorneys for both appellants cross-examined vigorously the prosecution’s expert witnesses, the victim’s internist and the medical examiner, whose testimony when combined established that the assault on the victim triggered a series of events which eventually led to his death on January 19, 1980, notwithstanding the fact that the victim had a history of heart problems. Under these circumstances, no abuse of discretion occurred.

The next issues raised is whether the trial court erred when it denied a motion for a mistrial because of prejudicial trial publicity.

The following scenario is contained in. the record:

One evening before the trial was adjourned for that day, the court cautioned the jurors to consider “only what [information] you have learned in this courtroom from the witness stand.” Notes of Testimony at 326. However, that evening, an article appeared in the local newspaper which inaccurately summarized certain testimony. The substance of the article can be gleaned from the following remarks which were made at the trial:

“THE COURT: Members of the jury, I indicated at the beginning of the trial of this case that there may be delays and they would only be necessary delays, and this morning was another example of a necessary delay. Before we resume the trial, there is a matter that I would like to discuss with you. I have told you consistently that the only information that should guide you and influence you in arriving at your verdict is that information you all hear together, seated here together in this courtroom and the evidence comes from the witness stand. It has been brought to my attention that there was a newspaper account of yesterday’s proceedings and I want to be sure that that newspaper account, if it has come to your attention, has not and does not influence you. Is there anyone among you, I am speaking to each of the fourteen of you, who has read any newspaper account either today or yesterday concerning this trial?
(Whereupon jurors raised their hands.)
THE COURT: Now, first of all, that was an obvious disregard of the Court’s instructions. O.k., hands again. My information is the only newspaper account that was brought to my attention was an article in the Bulletin. The four hands that went up, is it the Bulletin? Just nod yes or no.
(Whereupon, the jurors nodded in the affirmative.) THE COURT: Now, that account was inaccurate and it distresses me that it was inaccurate, but it was. But be that as it may, as a result of what you read in the newspaper account, has anyone of you who read that account formed an opinion as to the guilt or innocence of these defendants?
(No response.)
THE COURT: The record will show there is no answer. As a result of what was read, have you been influenced in this case by what you read?
(No response.)
THE COURT: No answer. Is each of you able to put aside what you read and decide this case as I have indicated solely on the evidence presented in this courtroom? Each of you who have raised your hands, do I take it from—first, juror No. 5, in light of what I said, would you be able to decide this case solely from the evidence presented in this courtroom?
A JUROR: Yes, Your Honor.
THE COURT: No. 6.
A JUROR: Yes, Your Honor.
THE COURT: No. 10.
A JUROR: Yes, Your Honor.
THE COURT: No. 12.
A JUROR: Yes, Your Honor.”
Notes of Testimony at 342-345.

The newspaper article which the four jurors read referred to a hearing conducted out of the presence of the jury. A sidebar conference then followed during which time the court and defense counsel for Rochester summarized their views on the matter:

THE COURT: The Court has queried the jury about the conference that a newspaper article was reported to the Court’s attention by Mr. Friedman. Mr. Friedman can supply that article to the court reporter to be made part of the record in the case. As the Court read the article, the only possible prejudicial content was a reference to the out of the jury hearing concerning the willingness of witnesses Harris and Kelly Walston to testify. We had conducted that hearing because the District Attorney had information that they would not be willing to testify or would claim that they didn’t remember. And in order to determine whether they would be willing to testify, we conducted the hearing out of the presence of the jury with the attorneys and the defendants present. Cornelia Harris did testify in that proceeding and testified before the jury. Kelly Walston testified in that proceeding but did not testify before the jury.
The newspaper account relates that Kelly Walston testified before the jury. That is the inaccurate part which the Court recalls. At this point, Mr. Friedman, do you want to add to that?
MR. FRIEDMAN: I think the article speaks for itself. It had a large headline which said, two girls claim four—or four boys or some such split money from mugging, I believe. In any case, I will supply the article to the reporter. It may or may not have said that that was outside the hearing of the jury or that it was before the hearing of the jury. Right at the moment, I cannot recall. In either way, it does make reference very clearly to Kelly Walston’s statement which is corroborating Cornelia Harris’ statement. It is for that reason, Your Honor, I move for a mistrial.
THE COURT: All right. The motion is refused.
MR. FRIEDMAN: Note my exception, Your Honor.
(End of side bar conference.)”
Notes of Testimony at 345-347.

The above events must be examined in accordance with the applicable principles of law:

“It is well settled that the right to trial by jury includes a guarantee that the accused will get a fair trial before a panel of impartial jurors. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). A jury’s verdict must be based upon evidence presented in the course of the trial, not on extraneous commentary presented in the forum of public opinion by news media. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). If a juror’s decision is influenced by inflammatory news reports, an accused has been deprived of a fair trial and due process requires reversal of the conviction. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
In Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976), prejudicial publicity had occurred during trial. Several newspaper articles and radio spots disclosed the appellant’s confession, earlier suppressed because violative of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court refused to question the jurors and denied sequestration. Rather, the court gave several general cautionary instructions. The supreme court found that no meaningful effort had been made to secure an unprejudiced jury panel. The appellant was accordingly awarded a new trial. The Bruno court observed:
‘When there is a possibility of highly prejudicial materials reaching the jury, the trial court must take appropriate protective action. Although the proper precautions are inevitably dictated by the circumstances of each case, they must reasonably ensure that no prejudice will occur.’ 466 Pa. at 266, 352 A.2d at 51.”
Commonwealth v. Williams, 262 Pa.Super. 508, 527-28, 396 A.2d 1286, 1295-6 (1978).

In the matter before us, the objectionable part of the article revealed that a witness’s testimony corroborated that of another witness that appellant Rochester stated “we iced the m-f-er.” Notes of Testimony at 96. The trial court informed the jury that this statement was inaccurate. The court also cautioned the jury in the following manner:

“once again your only information must come to you while you are seated here together as the evidence is given to you from the witness stand. You must not consider any statements or articles about testimony which was not presented in this courtroom. You must not consider the testimony of an alleged witness which was not presented to you. Please remember that. Thank you.”
Notes of Testimony at 348.

Furthermore, appellant Rochester testified in his own behalf and denied making the statement; however, he did state that another individual who was not on trial had made the statement in his presence. On this record, the trial court did not abuse its discretion in refusing to declare a mistrial since “[t]he only possible prejudice the Court found was the mention of the unwillingness of the witnesses to testify.” Trial Court’s Opinion at 16. Thus, “it is clear that the court took adequate cautionary measures to ensure that no prejudice occurred to appellants]. This is all that due process requires.” Commonwealth v. Williams, 262 Pa.Super. at 528, 396 A.2d at 1296.

Judgments of sentence affirmed.

      . Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975).

      . The United States Supreme Court has stated similarly:
      “[The juvenile defendant] cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights—from someone concerned with securing him those rights— and without the aid of a more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would put him on a less unequal footing with his interrogators.” Gallegos v. Colorado, 370 U.S. 49, 54-55, 82 S.Ct. 1209, 1212, 8 L.Ed.2d 325 (1962).

      . See e.g., Commonwealth v. Barnes, 482 Pa. 555, 561, 394 A.2d 461, 464 (1978) (no waiver because minor could not reject an opportunity to consult with a concerned adult); Commonwealth v. Graver, 473 Pa. 473, 375 A.2d 339 (1977) (no waiver where appellant was separated from his mother and later confessed without being given an opportunity to consult); Commonwealth v. Smith, supra (no waiver where the alleged interested adult unilaterally decided not to participate in the consultation); Commonwealth v. Gaskins, 471 Pa. 238, 240, 369 A.2d 1285, 1286 (1977) (no waiver where there was “[n]o consultation prior to the waiver was permitted at the Police Administration Building” when appellant was interrogated by the police.); Commonwealth v. McFadden, 470 Pa. 604, 611, 369 A.2d 1156, 1160 (1977) (waiver where mother and son, a juvenile defendant, were “left in each other’s company for ten minutes”, there was an opportunity to consult.); Commonwealth v. Hailey, 470 Pa. 488, 511, 368 A.2d 1261, 1273 (1977) (plurality opinion) (no waiver where appellant’s first access to the advice of an interested adult was provided six hours after questioning during which time appellant had already incriminated himself and the prosecution “did not establish that the father, at the time of his belated entrance, was in fact provided an opportunity to confer....”); Commonwealth v. Lee, 470 Pa. 401, 403, 368 A.2d 690, 691 (1977) (no waiver where “appellant was not allowed to consult with his parents until after he had given his original confession.”).

      . Commonwealth v. Veltre, 492 Pa. 237, 239, 424 A.2d 486, 487-88 (1981) (Opinion In Support of Affirmance by Larsen, J., joined by Flaherty and Kauffman, JJ.) (although probation officer was not an interested adult, appellant’s waiver was knowingly, understandingly, and voluntarily made under the totality of the circumstances.); Commonwealth v. Thomas, supra (Prison counsellor was not an interested adult); Commonwealth v. Smith, 472 Pa. at 500, 372 A.2d at 801 (no irrebuttable presumption that a parent is an interested adult; hence, where “the disinterest of the parent was graphically demonstrated, the parent was not an interested adult.”)

      . Commonwealth v. Hackett, 484 Pa. 43, 398 A.2d 651 (1979) (no waiver where no evidence that juvenile defendant’s mother was informed.); Commonwealth v. Graver, supra (no waiver where appellant’s mother was not informed “of the rights available to her son, the mother could not be termed an informed adult.”); Commonwealth v. Smith, supra (no waiver where no evidence that the adult comprehended the rights of the minor.); Commonwealth v. Hailey, 470 Pa. at 492, 368 A.2d at 1263 (no waiver where the prosecution did not establish that “the father was in fact aware of the options available to appellant.”); Commonwealth v. Webster, 466 Pa. 314, 328, 353 A.2d 372 (1975) (no waiver where prosecution’s evidence fails to show that mother was advised of accused’s Miranda rights.);
        Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1976) (no waiver where mother was not informed of her son’s Miranda rights.).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We note also that our own Court has suggested that “[t]he court in Barnes added a fourth requirement that the mandatory consultation is a meaningful one[;]” however, this language also is not binding since in that case, we said the following:
      “Clearly, the rule in Barnes, which is a per se one,f*] was not followed in the instant interrogation. No warnings whatsoever were given, much less an opportunity for consultation prior to the confession.” In Re Miller, 294 Pa.Super. 322, 328, 439 A.2d 1222, 1225 (1982) (emphasis added).

        In view of the fact that no warnings were given, this Court’s pronouncements about the type of “meaningful consultation” which must be given also is dictum.

      . Although appellant Walston couches his claims concerning the appointment of a pathologist and the mistrial motion in terms of trial counsel’s ineffectiveness since only appellant Rochester requested the court for such relief, we also have examined the underlying ineffectiveness issues and conclude that they are without merit. We have stated that counsel cannot be found to be ineffective for failing to raise baseless claim. Commonwealth v. Johnson, 490 Pa. 312, 416 A.2d 485 (1980).