author: MONTEMURO, Judge:

text:
    535 A.2d 142
    CITY OF PHILADELPHIA v. PIERRE UNIFORMS, INC., Second Floor, Inc., Catacombs, Inc., Wayne Geftman, Barry Geftman, and 12th and Walnut Street Associates. Appeal of 12TH AND WALNUT STREET ASSOCIATES.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1987.
    Filed Dec. 23, 1987.

      James E. Beasley, Philadelphia, for appellant.
    Flora B. Wolf, Assistant City Solicitor, Philadelphia, for City of Philadelphia, appellee.
    Leonard J. Bucki, Philadelphia, for Second Floor, Inc., appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   MONTEMURO, Judge:

This lawsuit has been pending in the Philadelphia Court of Common Pleas for nearly seven years. It began in 1980 as a code enforcement action brought by the City of Philadelphia to compel compliance by both owners and tenants of a building located at 1125 Walnut Street, Philadelphia, with building and fire safety provisions of the Philadelphia Code of Ordinances. In 1976, Pierre Uniforms, Inc., a previous owner of the property, entered into two leases with Wayne Geftman and Barry Geftman (hereinafter “Geftmans”) for the second floor and basement of the building. The Geftmans, doing business through two corporations known as Second Floor, Inc. and Catacombs, Inc., have used the basement and second floor of the building as a nightclub and discotheque. In its code enforcement action, the City sought to force the owners and tenants to install required fire safety equipment, to obtain licenses and permits, and to either cease public occupancy of the basement or take steps to bring it into compliance with code standards. Only some of the code violations were cured over the years through cooperation between the owner and the tenants of this property.

On July 16, 1986, the building was purchased by the appellant, 12th and Walnut Street Associates, who was then brought into the City’s action as party-defendants. On that same day, the trial court entered an order which directed, inter alia, that the appellant submit to the Court a plan and timetable for the remaining required improvements to the building. On September 16, 1986, instead of filing the plan, the appellant filed a “Petition to Prevent Waste and For Injunction and Eviction.” This petition was filed pursuant to Pa.R.C.P. 1576 and sought an injunction to prevent waste by the tenants and the eviction of the tenants. Several hearings were held on the petition. The trial court then entered two orders on November 17, 1986. In its first order, the trial court found that the premises were not in compliance with the Philadelphia Code of Ordinances and the court ordered the tenants, the Geftmans, to cease and desist from operating their businesses until the premises were brought into compliance with the Philadelphia Code. In the second order, the trial court denied appellant all equitable relief under its petition to prevent waste. This appeal was taken from the entry of the latter order.

Appellant has raised two issues for our review as follows:

1. Whether the trial court erred in refusing to grant appellant relief pursuant to Pa.R.C.P. 1576?
2. Whether the trial court abused its discretion in refusing to hear the testimony of appellant’s expert witness, Mr. John Kampmeyer?

Initially, we find that appellant has waived the second issue concerning the proffered testimony of Mr. Kampmeyer by failing to include this issue in the Statement of Matters Complained of on Appeal. See Pa.R.A.P. 1925(b). As to the first issue raised by the appellant, we must first address the contention raised by the City of Philadelphia, one of the appellees in this appeal, that this case properly lies within the exclusive jurisdiction of the Commonwealth Court. In support of this contention, the City has cited 42 Pa.C.S.A. § 762, which provides in pertinent part:

[T]he Commonwealth court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(4) Local government civil and criminal matters.
(i) All actions or proceedings arising under any municipality, institution, district, public school, planning or zoning code or under which a municipal authority may be formed or incorporated or where is drawn in question the application, interpretation or enforcement of any:
(B) home rule charter or local ordinance or resolution;

See 42 Pa.C.S.A. § 762 (emphasis added)

We reject the City’s argument that this appeal is within the exclusive jurisdiction of the Commonwealth Court. Although the motion which is the subject of the instant appeal was filed within an action originally brought to obtain compliance with local ordinances of the City of Philadelphia, the instant appeal does not center upon the application, interpretation or enforcement of these ordinances. Instead, the issue involved in this appeal centers upon the proper application and rise of Pa.R.C.P. 1576. Our jurisdiction over this appeal is therefore proper,

Pa.R.C.P. 1576(a) provides for remedies in pending actions as follows:

(a) In any action at law or in equity, on petition of any party setting forth facts entitling him to such relief, the court may, at any time before or after judgment, in accordance with Rule 1531(a), 1531(c), 1531(d) and 1531(e), and upon such terms and conditions, including the filing of security, as it may fix, issue an injunction pendente lite to restrain waste of real property which is a subject of the action.

We agree with the trial court that appellant may not invoke Pa.R.C.P. 1576 to obtain an injunction and an eviction of the tenants of this property. Firstly, the only relief provided by Rule 1576 is an injunction pendente lite. It was clearly improper for appellant to seek an eviction of tenants by invoking this rule. Further, in order for an injunction to be granted to restrain waste, this Rule states that real property must be a “subject of the action.” Our research has revealed no Pennsylvania case which interprets Rule 1576. However, our close reading of this Rule convinces us that the instant case is not a case where real property is a “subject of the action.” The subject of the action brought by the City in this case is compliance with City ordinances and City licensing or permit requirements. Appellant and its tenants are co-defendants in this case. We believe that Rule 1576 is intended to be invoked in those cases where such issues as possession, control, or title to real property are at stake, causing the property itself to be a “subject of the action.” We note the following statements in the Commentary to Rule 1576 contained in Goodrich-Amram 2d § 1576:1 and § 1576(a):l.l respectively:

Persons entitled to the remedy against waste include a landlord, remaindermen and reversioners, a plaintiff in ejectment awaiting final judgment, judgment creditors, and other lien creditors.
The purpose of a bond is to secure to the defendants immunity from any danger to the use and enjoyment of their rights pending settlement of the question of possession and title to the property ...

We note further that what appellant seeks to obtain under the purview of Rule 1576 is equitable relief. It is axiomatic that equity will entertain jurisdiction only in the absence of an adequate remedy at law. Jostan Aluminum Products Co. v. Mount Carmel District Industrial Fund, 256 Pa.Super. 353, 359, 389 A.2d 1160, 1163 (1978) (citations omitted). Appellant has an adequate remedy at law. Appellant can sue under the lease agreement it has with the tenants, the Geftmans. We have reviewed the lease agreement which is contained in the record on this appeal. We specifically note the following provisions contained in the lease agreement for the basement area of the building:

Lessee covenants and agrees that he will without demand:
(b) Keep the demised premises clean and free from all ashes, dirt, and other refuse matter; replace all glass windows, doors etc., broken; keep all waste and drain pipes open; repair all damage to plumbing and to the premises in general; keep the same in good order and repair as they now are, reasonable wear and tear and damage accidental or other casualty not occurring through negligence of Lessee or those employed by or acting for Lessee alone excepted. The Lessee agrees to surrender the demised premises in the same condition in which the Lessee has herein agreed to keep the same during the continuance of this lease. (Lease of basement area para. 8(c)).

31. Lessee covenants and agrees to be responsible for all maintenance and repairs of the demised premises. It is expressly understood between the parties that lessor will not be responsible, in any way, for maintaining or operating the demised premises. (Addendum and Rider to Lease of basement area at p. 3).

32. Lessee covenants and agrees to pay the cost for and bear the responsibility of obtaining any and all licenses, permits or any other requirements of any governmental entity relating to the use and occupation of the demised premises. (Addendum and Rider to Lease of basement area at p. 3).

Similar provisions are contained in the lease of the second floor area. In addition, the lease of the second floor area includes the following provision regarding maintenance of the demised premises:

In the event that the TENANT shall fail to perform any repairs which are deemed necessary by the LANDLORD within thirty (30) days from the date that the LANDLORD shall have requested same, the LANDLORD may, at its option, and upon thirty (30) days additional written notice to the TENANT, go upon the DEMISED PREMISES and perform such repairs, the cost thereof, at the option of the LANDLORD, to be charged to the TENANT. (Lease of second floor area at p. 8).

Although we express no opinion on the merits of this controversy, we believe that appellant may very well have an adequate remedy at law. In Jostan, supra the lessee and sublessee of an industrial building brought suit in equity to obtain an injunction directing various defendants, including the lessor, to construct and install a new roof. The lease involved in Jostan included a section which required the tenant to make all repairs except those repairs necessitated by faulty or defective construction. What we said in Jostan is equally applicable in this case:

Instantly, plaintiffs’ complaint in equity seeks, in effect, restoration or replacement of a roof under the terms of a lease agreement. We perceive no reason why this claim cannot be pursued at law in an assumpsit action to recover damages ... In other words, plaintiffs could simply sue under their lease. Despite averments of irreparable harm, we think it clear that plaintiffs can obviate any further injury by presently engaging a contractor to make the necessary repairs or replacement pending resolution of the liability issue in an assumpsit action.

Jostan, supra, 256 Pa.Superior Ct. at 359, 389 A.2d at 1163. See also Platt v. City of Philadelphia, 183 Pa.Super. 486, 133 A.2d 860 (1957).

Order affirmed.

      . Both leases are scheduled by their terms to expire on April 30, 1988. Brief for appellant at 6.

      . This order was also directed to Second Floor, Inc. and Catacombs, Inc., which are the corporations through which the Geftmans conduct their business at 1125 Walnut Street, Philadelphia. On December 8, 1986, the trial court lifted the injunction prohibiting the tenants from occupying the premises because the court determined that all Code violations had been corrected. However, on October 1, 1987, this court granted appellant’s Application for Relief pursuant to Pa.R.A.P. 123. This allowed the appellant to supplement the record in this appeal to include a copy of a letter, dated July 31, 1987, sent by the City of Philadelphia to Second Floor, Inc., which suspended all operations on the second floor of the building until a valid Certificate of Occupancy was issued by the Philadelphia Department of Licenses and Inspection. Apparently, despite the institution of the code enforcement action in 1980, the City has not yet been able to bring this building into full compliance with City ordinances regulating its use as a place of public assembly.

      . In Commonwealth v. Barba, 314 Pa.Super. 210, 460 A.2d 1103 (1983), we determined that a sentencing issue had been waived by appellant’s failure to include the issue in the statement of matters complained of on appeal. In Barba, we recognized that our supreme court had defined the parameters of the waiver provision in Rule 1925 in its decision Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). Id. 314 Pa.Super. at 222, 460 A.2d at 1110. "The waiver provision of Rule 1925(b) is clearly discretionary. The statement provided for therein is intended to aid the trial court in the preparation of an opinion where the basis of the appeal is unclear after post-verdict motions have been disposed of. The waiver provision of the Rule is properly invoked only where failure to file a statement of issues raised on appeal defeats effective appellate review." Silver, supra 499 Pa. at 238, 452 A.2d at 1333. In the instant case, áppellant’s outright failure to include any issue concerning the exclusion of the proffered expert testimony in the concise statement of matters complained of on appeal precluded the trial court from addressing this issue in its opinion. As a result, we are left to speculate as to the trial court’s factual findings and basis for excluding this testimony. Effective appellate review is therefore defeated and, under these circumstances, we find that appellant has failed to preserve this issue for appellate review.

      . Cases within the exclusive jurisdiction of the Commonwealth Court pursuant to 42 Pa.C.S.A. § 762(a)(4)(i)(B) have centered upon the interpretation and enforcement of local ordinances. In Osser v. City of Philadelphia, 295 Pa.Super. 447, 441 A.2d 1317 (1983), this court transferred a case to the Commonwealth Court pursuant to 42 Pa.C. S.A. § 762(a)(4)(i)(B). Osser involved an appeal of an order in which the court of common pleas had upheld a determination by the Pension Board of the City of Philadelphia that under city pension ordinances, appellant’s conviction for mail fraud had properly resulted in a forfeiture of his city pension. The appellant in Osser claimed on appeal that the Pension Board’s interpretation of the applicable city pension ordinance was erroneous.

      . The trial court also concluded that, in any event, the appellant had not met its burden of proving waste in the instant case. We need not consider whether this determination by the trial court was proper, because we have determined that Pa.R.C.P. 1576 was not properly invoked as a means to obtain relief in the circumstances of this case.

      . We find it significant that Pa.R.C.P. 1576 requires that before an injunction pendente lite may properly be issued, the party seeking the injunction must file a petition “entitling him to such relief." Relief under Rule 1576 may then be issued in accordance with the rules relating to preliminary or special injunctions. See Pa.R.C.P. 1576(a). We believe that, in determining whether a party has shown that he is entitled to an injunction under Rule 1576, it is necessary to refer to the well-settled principles of preliminary injunctions. If the threatened injury is not imminent or is not permanent and irreparable and the plaintiff has available an adequate remedy at law, then a petition for preliminary injunction will be refused. See, e.g., Credit Alliance Corporation v. Philadelphia Minit-Man Car Wash Corporation, 450 Pa. 367, 301 A.2d 816 (1973); Three County Services, Inc. v. The Philadelphia Inquirer, 337 Pa.Super. 241, 486 A.2d 997 (1985).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    535 A.2d 146
    Cynthia D. DeLOATCH, Administratrix of the Estate of Ethelcora DeLoatch, Appellant, v. Arnold MURPHY.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1987.
    Filed Dec. 28, 1987.

      Barbara J. Moleah, Philadelphia, for appellant.
    Joseph T. Simon, Philadelphia, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   HESTER, Judge:

This action in equity to compel partition of real estate located at 1821 Georges Lane, Philadelphia, was instituted by Ethelcora DeLoatch against Arnold Murphy, appellee, on March 25, 1982. The trial court entered an order which granted partition and, on June 28, 1983, appointed a master to effect it. The master conducted a hearing and filed a report in which he recommended that appellee pay Ethelcora owelty of twenty-five dollars, plus interest, and that title to the real estate be awarded to appellee upon payment of the owelty. The award was based on the master’s finding that Ethelcora’s sole contribution to the purchase and maintenance of the property had been a twenty-five dollar deposit which she had made when the property was purchased. After Ethelcora filed exceptions, the trial court entered a final decree which adopted the recommendations of the master, and Ethelcora appealed. Ethelcora died on September 1, 1986, and the administratrix of her estate has been substituted as appellant. For brevity, we will refer to appellant’s decedent as appellant. We reverse and remand for proceedings consistent with this opinion.

Appellant, who was at the time legally married to Raymond DeLoatch, began an amorous relationship with appellee in 1967 or 1968. They had one child born in 1968. On December 9, 1969, the subject property was purchased. The grantees on the deed were Arnold Murphy and Ethelcora A., “his wife.” Appellee concedes that appellant is the person named in the deed. N.T., 10/26/83, at 8. Immediately following the granting clause, where the nature of the estate conveyed is customarily indicated, the deed provides that the property is granted to the grantees as “tenants by entireties.”

The parties lived together at Georges Lane with their child and appellant’s three daughters by DeLoatch until July, 1970, when appellant left. She returned in 1971, lived there for one year and left again, permanently. With the exception of the twenty-five dollar deposit money paid by appellant, appellee paid for all expenses associated with the property, including the downpayment, closing costs, mortgage, taxes, repairs, improvements, and maintenance costs.

Appellant claims an interest in the property pursuant to the language of grant in the deed. We agree with her claim, holding that the parties held title to the property as joint tenants with right of survivorship. We also hold that the tenancy had been severed prior to appellant’s death, thus creating a tenancy in common and that the case must be remanded for a correct determination of the estate’s interest in the property.

We must first determine the nature of the interest created in the deed dated December 9, 1969. Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948), is the first in a long line of cases dispositive of this issue. Maxwell, while legally married to someone else, took title to real property with his paramour, described in the deed as his wife. The grant was to them “as tenants by the entireties.” The Pennsylvania Supreme Court acknowledged that, notwithstanding the language of the deed, the grantees could not take title as tenants by the entireties as that type of estate is limited to grantees who are legally married. The court determined, however, that the deed would be construed as creating an appropriate form of tenancy, determined by the intent of the parties as that intent appeared in the instrument. As their “declared intention was to own the property as tenants by the entireties,” the court ruled that “[t]his was equivalent to stating in so many words that they desired to establish a right of survivorship.” Id., 359 Pa. at 96, 58 A.2d at 356 (emphasis in original). Accordingly, the court held that the deed created a joint tenancy with right of survivorship, awarded the property to the paramour, as surviving tenant, and declined to find that Maxwell’s widow was entitled to fifty percent of the property as heir under a tenancy in common.

The principle announced in Maxwell has been consistently followed. In Teacher v. Kijurina, 365 Pa. 480, 76 A.2d 197 (1950), Sarah Jaic, who was legally married to someone else, and Nick Kijurina acquired title to various properties as grantees under deeds describing them as husband and wife. No other language appeared in the deeds indicating the character of the estate taken by the grantees. Sarah died, devising her property by will to relatives. The court distinguished Maxwell v. Saylor, supra, and, as no language intending to create a survivorship interest appeared in the deeds, ruled that the deed operated to convey an estate of tenancy in common. It reversed the trial court’s conclusion that a joint tenancy with right of survivorship was created, a conclusion based partly on the fact that Kijurina had paid the entire purchase price for the property. The court stated that the trial court erred by considering testimony regarding payment of purchase price:

The language of the deed is clear and unambiguous and the intent of the grantees must be gleaned solely from its language____ In absence of fraud, accident or mistake parol evidence is inadmissible to vary or limit the scope of a deed’s express covenants and the nature and quantity of the interest conveyed must be ascertained by the instrument itself and cannot be orally shown. Henry’s Trial Evidence (3rd Ed.) Sec. 375 and cases there cited. Furthermore, in construing a deed, as in the case of a will, it is not what the parties may have intended by the language used but what is the meaning of the words.

Teacher v. Kijurina, supra, 365 Pa. at 486, 76 A.2d at 200.

In Bove v. Bove, 394 Pa. 627, 149 A.2d 67 (1959), the principles announced in Maxwell and Teacher were reaffirmed. Mabel Bove, while married to someone else, took title with Michael Bove to real estate under deeds describing her as Bove’s wife and granting the property to them as tenants by the entireties. The court awarded her the property as surviving tenant under a joint tenancy with right of survivorship as against the executor of Bove’s estate. The court ruled the fact that Mabel did not contribute at all to the property as “wholly irrelevant to the legal question involved.” Id., 394 Pa. at 629, 149 A.2d at 68; accord Estate of Whiteman v. Whiteman, 466 Pa. 343, 353 A.2d 386 (1976); Righter v. Righter, 442 Pa. 428, 429, 275 A.2d 4, 4 (1971) (“where a deceased spouse takes title to property with another, not his legal spouse, as tenants by the entire-ties, a joint tenancy with right of survivorship will be created rather than a tenancy in common”); Thomas v. Thomas, 442 Pa. 623, 275 A.2d 5 (1971); First Federal Savings & Loan Ass’n v. Porter, 408 Pa. 236, 183 A.2d 318 (1962); see also Pennsylvania Bank and Trust Co. v. Thompson, 432 Pa. 262, 247 A.2d 771 (1968) (grant to brothers as tenants by entireties created joint tenancy with right of survivorship).

In this case, the grant was to appellant and appellee as tenants by the entireties, which created a joint tenancy with right of survivorship. The master found that appellant’s interest in the land was twenty-five dollars, which represented the hand money she put on the property, plus interest. He characterized appellee as “majority tenant,” and awarded him title to the property upon payment of the money to appellant. This award, adopted by the trial court, was clearly based on the master’s finding that appellee had contributed, other than the twenty-five dollars, all of the money toward purchase and upkeep of the property. The contributions of the parties, however, was not a relevant consideration in determining the interests created by the deed.

Thus, in the absence of fraud, mistake or accident, the court should have found that the wording of the deed, when coupled with the judgment in partition, operated to convey a one-half interest to appellant in the land and partitioned the property accordingly. See Banko v. Malanecki, 499 Pa. 92, 451 A.2d 1008 (1982); Larendon Estate, 439 Pa. 535, 266 A.2d 763 (1970); Vargas v. Brinton, 305 Pa.Super. 357, 451 A.2d 687 (1982).

Appellee attempts to avoid this precedent by making two separate allegations of fraud. First, appellee claims that appellant concealed her marriage to DeLoatch prior to the conveyance in December, 1969. His testimony on this issue, however, was implausible and contradictory. Appellant lived next door to her parents when she met appellee. N.T., 10/26/83, at 61. Appellee admitted on cross-examination that he knew that the parents’ surname was different from appellant’s surname. Id. Her three daughters, who appellee purportedly thought were her sisters, lived with appellant and had her surname. Id. The three girls also moved into Georges Lane with the parties, instead of staying with appellant’s parents. Further, appellee contradicted himself as to when he discovered that appellant was married, at one point stating that it was prior to the purchase of the Georges Lane house. Id. at 64-65. Appellant testified that appellee was aware of her marital status when the house was purchased. Id. at 66.

Appellee also accused appellant of fraudulently placing her name on the deed, contending that they had an agreement that the property was to be transferred to appellee and their child. He testified that he never read the deed at the closing and did not realize appellant’s name was on it. In Yohe v. Yohe, 466 Pa. 405, 353 A.2d 417 (1976), the Pennsylvania Supreme Court ruled that a husband, who requested relief on the basis of fraud, could not avoid a deed he signed conveying his property to his wife. The husband alleged that he thought he was signing a deed to himself, not his wife, and he thought a new deed was required due to recent satisfaction of the mortgage. He claimed that his wife had had the deed drafted, she told him he was the grantee, and he signed the deed without reading it. The court refused to grant relief to the husband, stating:

“If a party, who can read, will not read a deed put before him for execution he is guilty of supine negligence, which is not the subject of protection, either in equity or at law.” O’Reilly v. Reading Trust Co., 262 Pa. 337, 343-344 105 A. 542, 544 (1918)____ The integrity of signed documents must be respected especially in land transactions in order for there to be certainty in the law. We cannot rescind conveyances merely because one party later claims that he did not understand what he was signing when there was nothing to prevent him from merely reading the deed to discover its contents.

Id., 466 Pa. at 410, 353 A.2d at 420.

The reasoning of Yoke applies in this case. Appellee can read and understand English. N.T., 10/26/83, at 49. His alleged failure to read the deed at the closing is not legally excusable. We will respect the need for certainty regarding land conveyances rather than protect a party who negligently fails to review a document which defines his property rights at the property closing. Further, appellee testified that appellant was not present at the closing, N.T., 10/26/83, at 49, and, thus, according to his version of the events, could not have prevented him from reading the deed or misled him about its contents. Inasmuch as appellee failed to prove fraud, the deed must be interpreted as creating a joint tenancy between the parties.

Appellee next argues that, if we reverse the order awarding him the property upon the payment of owelty, we should hold that he is entitled to the property as surviving joint tenant, due to appellant’s death.

However, this would be appropriate only if the joint tenancy had not been severed prior to appellant’s death, an issue addressed by the Pennsylvania Supreme Court in Sheridan v. Lucey, 395 Pa. 306, 149 A.2d 444 (1959). There, the plaintiff died after the answer to her complaint was filed, but prior to the filing of a reply to new matter. The court stated:

[W]e believe that the mere pendency of an action in partition, without more, is insufficient to work a severance of the joint tenancy, whereupon an abatement occurs upon the death of one of the joint tenants. This for the reason that, although a voluntary act on the part of one of the joint tenants is adequate to work a severance, that act must be of sufficient manifestation that the actor is unable to retreat from his position of creating a severance of the joint tenancy.

Id., 395 Pa. at 309, 149 A.2d at 446 (emphasis added).

The court reasoned that the mere institution of the proceedings, before the issues are formulated, is an action too premature to sever the tenancy since the plaintiff still “has an election to continue the proceedings to judgment, thus affecting a severance of the joint estate or discontinuing the action and leaving the joint tenancy in status quo.” Id.; see also Clingerman v. Sadowski, 513 Pa. 179, 188, 519 A.2d 378, 383 (1986) (unilateral action representing clear and unequivocal intention to sever a joint tenancy severs the tenancy); Frohock v. Gustine, 8 Watts 121 (1839) (death of plaintiff after judgment in partition is entered in action does not abate the writ); Vargas v. Brinton, supra (partition action taken to judgment is sufficient to sever a joint tenancy); Yannopoulos v. Sophos, 243 Pa.Super. 454, 365 A.2d 1312 (1976) (enforceable sales agreement severed joint tenancy, as parties had placed themselves in a position from which they could not retreat); cf Allison v. Powell, 333 Pa.Super. 48, 481 A.2d 1215 (1984), where the joint tenant died immediately after instituting a partition action, and we held that the joint tenancy had not been severed as the plaintiff could have retreated from his demand for partition since a judgment had not been entered.

In this case, the issues were formulated and a partition judgment entered. Appellant was no longer in a position to retreat from her demand for partition, and her actions evidenced a clear and unequivocal intention to sever the joint tenancy. Upon severance, which occurred upon entry of the partition judgment, the joint tenancy became a tenancy in common. Yannopoulos v. Sophos, supra. Appellee’s contention that he is entitled to the property as surviving joint tenant must therefore fail.

In conclusion, the property must be partitioned between the parties without regard to their respective contributions towards its acquisition and in accordance with the decisions in Banko v. Malanecki, supra; Larendon Estate, supra, and Vargas v. Brinton, supra. Appellant’s claim for rent, based on Sciotto v. Sciotto, 446 Pa. 414, 288 A.2d 822 (1972), must also be resolved.

Judgment reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Owelty of partition is defined as follows:
      A sum of money paid by one of two coparceners or co-tenants to the other, when a partition has been effected between them, but, the land not being susceptible of division into exactly equal shares, such payment is required to make the portions respectively assigned to them of equal value.

        Black’s Law Dictionary 996 (5th ed. 1979).


text:
    535 A.2d 151
    Rosemary HUTNIK, Appellee, v. John S. HUTNIK, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1987.
    Filed Dec. 28, 1987.

      Karen A. Feryo, Bethlehem, for appellant.
    Richard J. Shiroff, Easton, for appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of equitable distribution.

The parties were married in 1961, and separated twenty years later. A divorce under 23 P.S. § 201(d), requiring a three year separation, was granted in May of 1987, one month after a decree had been entered distributing the marital property 55% to appellee, and 45% to appellant. After rulings on the exceptions of both parties, this appeal followed.

Our first inquiry concerns the appealability of the equitable distribution order. In Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986), an en banc panel of this court held that an order of equitable distribution entered prior to issuance of divorce decree is not final, because such an order, being premature, does not dispose of a divorce action. “This is because the settlement of economic and property claims is merely a part of the trial court’s broader power to terminate the marriage. Equitable distribution is an incident of divorce, not marriage.” Id., 357 Pa.Superior Ct. at 489, 516 A.2d at 366. However, the Campbell court, also held that a pre-divorce decree distributing marital property is rendered final by entry of a divorce decree, and examined the decree in question because its prematurity was inadvertent. Id. We find the procedural events in Campbell to approximate those herein, and applying the Campbell precedent, find this appeal properly before us. But see Colagioia v. Colagioia, 362 Pa.Super. 213, 523 A.2d 1158 (1987) (appeal quashed where no divorce decree entered).

In assessing the propriety of a marital property distribution scheme, our standard of review is whether the trial court, by misapplication of the law, or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Thomson v. Thomson, 359 Pa.Super. 540, 519 A.2d 483 (1986); Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Moreover, “an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Sergi, supra, 351 Pa.Super. at 591, 506 A.2d 930, citing Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom, against the provisions of 23 P.S. § 401(d) and the avowed objectives of the Divorce Code, that is, to “effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights.” 23 P.S. § 102(a)(6).

Appellant and appellee are respectively 51 and 44 years old. Appellant, a college graduate, has, since 1969, been employed in middle management of a manufacturing corporation and receives a weekly gross salary of $623. The company also pays him an annual bonus based on its own profits, as well as insurance and pension benefits. In 1985, appellant received $900 under the bonus arrangement.

Appellee, who possesses a high school education, is employed as a secretary at a net income of $256.42 per week. She also earns $500 annually teaching aerobics.

At the time of the hearing, two of the parties’ three children were students and receiving parental support, principally from appellant. One of these children resides with appellant in the marital residence, and one with appellee in a rented apartment. The parties’ third child is a self-supporting adult living abroad.

Appellant has presented us with five issues which we will address seriatim, albeit in an altered sequence.

Appellant assigns error to the trial court’s method of applying several provisions of § 401(d). Initially, appellant argues that the court reached an unsupported conclusion in finding that his earnings are “substantially” greater than appellee’s. Since appellant’s own brief contains the information that appellant’s gross pay per week is more than twice that of appellee for the same period, simple arithmetic would guarantee the percipience of the court’s conclusion.

Appellant’s other claims with respect to § 401(d) are equally specious, and similarly unpersuasive. Appellant argues that in justifying the unequal division of property, the court erroneously applied such data as the length of the marriage, the appellant’s “obviously” higher financial standing, the “likelihood” that the parties relative financial positions would remain unchanged, and the respective worth of the parties’ contribution to the marriage. In reviewing appellant’s own reading of the factors he considers to be controlling, one point is made clear, that is, his insistence that as primary breadwinner he is entitled to more favorable treatment than he was afforded. As the Code is intended to remedy the injustices resulting from precisely that attitude, and because all pertinent information was fully considered in making the unequal award, we find no merit to appellant’s assertion.

This assessment does not alter upon examination of appellant’s next claim. By means of a somewhat inartfully drawn issue, appellant claims that the trial court should not have adopted the finding of the Master as to the value of his entire pension since no evidence was presented at the hearing as to the specific value of the marital portion. In addressing this contention the trial court found that because the testimony of appellee’s expert had been essentially uncontradicted, the Master’s assignment of the value of the pension to the entire duration of the marriage, as opposed to a valuation which ceased at date of separation, was appropriate. Bold v. Bold, 358 Pa.Super. 7, 516 A.2d 741 (1986). (Wherein this court found that valuation computed by appellee’s expert was acceptable because appellant, having presented the court just with basic figures, failed to point out error in expert’s calculations.)

This court has repeatedly stated that in general “[o]nly that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code.” Braderman, supra 339 Pa.Super. at 196, 488 A.2d 618. King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Also, see generally Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987); 23 Pa.S.A. § 401(e). However, an exception to this rule was recently reiterated in Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). There we held that “where a plan has vested and value increases aside from contribution of the parties, beyond the date of separation,” id., 357 Pa.Superior Ct. at 344-345, 516 A.2d 12-13, the increase is marital property. Here the facts support application of that principle: appellant’s plan, although vested was not yet matured. As we noted in Braderman, “the vast majority of jurisdictions hold that vested, unmatured retirement benefits are marital property.” Id. 339 Pa.Super. at 193, 488 A.2d 616. Pennsylvania is included in the majority, and appellant’s claim is without merit.

Appellant also complains that the Master should not have relied on the expert’s evidence because it was based in part on depositions which are violative of the Pa.R.C.P. 1920.22 prohibition on discovery, other than interrogatories, in divorce cases where claims are made for distribution of property rights or alimony. Interestingly, appellant quotes the hearing testimony of the expert to the effect that, finding the depositions inadequate and confusing, he based his computations on a letter from the administrator of retirement benefits at appellant’s place of employment. Appellant’s argument as to the basis for those computations is without merit.

It is contended, in addition, that the wrong principle of distribution was applied in regard to the pension. The trial court, citing Braderman, supra, found that under the circumstances of this case, the immediate offset method used by the Master was appropriate. We agree.

The immediate offset method has the advantage of avoiding further entanglement between the parties. Problems with continuing court supervision and enforcement are also avoided. This method’s greatest virtue, however, is that it effectuates a final and immediate settlement of the distribution of the retirement benefits.

Id., 339 Pa.Superior Ct. at 198, 488 A.2d 620. The immediate offset method is justified herein not only by its finality, but because there is sufficient property other than the pension to render the more cumbersome deferred distribution method unnecessary.

Appellant next argues that the court’s reappraisal of the marital residence, and the award to appellee of one half its rental value is error. The basis of the claim is that appellant’s payments of mortgage, insurance, taxes, and upkeep on the house are not sufficiently considered. The award to appellee of one half the rental value of the house is consistent with our holding in Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983), that the party out of possession must in some manner be compensated for his or her “rights and interests in the land.” Id., 314 Pa.Superior Ct. at 35 n. 2, 460 A.2d at 360 n. 2. Herein the rental value was reduced by appellee’s share of the payments made by appellant for mortgage, etc. during the separation. Appellant’s claim, therefore, has no merit.

Appellant’s penultimate claim is that there was error in the court’s award to appellee of one half her attorney’s fees, and two thirds of the court costs. Our standard of review in regard to these items has recently been reiterated by this court in Johnson v. Johnson, supra.

In determining the propriety of an award of counsel fees, we also utilize an abuse of discretion standard of review. However, counsel fees are not awarded to either spouse automatically. “Actual need must be shown in order to justify an award.” Counsel fees are appropriate when necessary to put the parties “on a par” in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce.

Id. 365 Pa.Super. at 415, 529 A.2d 1126 (citations omitted). The record in this case fully supports a finding of sufficient need on appellee’s part to justify the award. Further, as the trial court points out, appellant accepted as reasonable the value placed on the services supplied by appellee’s counsel.

Appellant’s final claim is that the trial court erred in adopting the finding of the Master which gave weight and consideration to certain certificates of deposit, amounting to some forty-thousand dollars ($40,000) held jointly by appellant with his mother. It is argued that because appellant’s potential receipt of this money is highly speculative, the certificates should not have been factored into the Master’s assessment of appellant’s financial position.

The status of potential expectancies such as the certificates, is a question which the courts of this Commonwealth have not definitively addressed in the context of divorce actions. In Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1984), this court found that savings bonds placed by appellant’s mother in joint names with her son constituted an inter vivos gift. However, this finding was made in retrospect since appellant’s mother had died, and the bonds had been cashed in by the time the matter came before the court. The fact that appellant’s mother herein is still living is crucial given the provision of the Multiple Party Accounts Act, 20 Pa.C.S.A. § 6302 et seq., on the matter of gifts. Section § 6303(a) reads as follows:

Joint account. — A joint account belongs, during the the lifetime of all parties, to the parties in proportion to the net contributions by each to the sum on deposit, unless there is clear and convincing evidence of a different intent.

Appellant’s mother testified at the Master’s hearing that the money involved represented the proceeds of the sale of her house, that she regarded it as hers alone, and that appellant’s name had been placed on the certificate merely for her convenience. Clearly, no gift was intended. The question then becomes whether, as an expectancy, the funds in the certificate should be included at all in calculations of financial position for purposes of equitable distribution.

An expectancy has been defined as “ ‘a bare hope of succession to the property of another such as may be entertained by an heir apparent.’ Such a hope is inchoate, it has no attribute of property, is without appreciable value, and the interest to which it relates is non-existent and may never exist.” Robbins’s Estate, 199 Pa. 500, 501, 49 A. 233, 233 (1901) (citing Gibson, J., in De Haas v. Bunn, 2 Pa. 335, 338 (1835)). See also Johnson v. Breeding, 136 Tenn. 528, 529, 190 S.W. 545 (1916).

Consistent with this definition, expectancies are incapable of valuation, and therefore speculative in the extreme: they are subject to dissipation by the prospective donor, the intended donee may predecease the donor, or some other event may intervene to prevent the putative recipient from enjoying actual receipt.

On the other hand, the Divorce Code nowhere excludes consideration of expectancies or inheritances for purposes of equitable distribution. When the specifics of § 401(d), particularly § 401(d)(5) concerning “future acquisitions of capital assets and income,” are read together with the objectives of the Code expressed in § 102(a)(6), consistency would dictate that achieving economic justice requires the inclusion of expectancies and inheritances if theoretical future acquisitions from earnings or investment are legitimate considerations. Further, § 401(d) is not exhaustive. See Baraff v. Baraff, No. 10, October 1980 (CCP Allegheny County, January 10, 1983). See also 1 J.A. Rounick, Pennsylvania Matrimonial Practice § 18.11.1.

However, after carefully assessing the weight to be accorded these competing interests, we find that the question of appellant’s expectancy from his mother is beyond the trial court’s proper scope of inquiry. Even in cases where the donative intent of a parent is unambiguous, courts have found the intended beneficiary’s interest to be too insubstantial to be included in a distribution scheme. Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978), presents a situation in which the mother of the wife in a divorce action testified that she and the wife’s father intended to provide for their daughter and grandchild, and that their wills were being altered to accomplish this. The wife had, in fact, already been given $3,000 by her parents. The trial court ruled that the testimony of the mother as to the potential inheritance was inadmissible as too speculative. The Connecticut Supreme Court affirmed, holding that, “The Court’s ruling cannot be said to be an abuse of discretion under the circumstances surrounding the vesting of a ‘potential inheritance of the wife,’ as the defendant describes it, the expectancy according to the testimony, elicited and appearing in the finding and transcript is, at best, speculative.” Id. at 365, 387 A.2d at 550. We cannot disagree.

As we have already stated, the realization of an expectancy is contingent upon the continuing existence of at least three factors: the res, the beneficiary, and the benevolent intent of the prospective donor toward the divorcing party. These are all readily mutable, so that what is involved is the possible receipt of an uncertain amount at some undeterminable future date. To allow such a protean element to control in any way the disposition between the parties of jointly owned, ascertainable assets would perform a disservice to both. There may be circumstances, such as irrevocable trusts, under which an expectancy or inheritance falls outside the usually applied definition, but that is not the case herein.

Even where a legislated right exists for attachment of a beneficial interest, such attachment can be made only after the interest is in fact realized. In Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973), our Supreme Court was presented with a decree which allowed appellee to enforce a child support order by garnishing both income and principal of a spendthrift trust of which her former husband, the appellant, was the beneficiary. The court, after noting that the trust income was available for support by statute, vacated the decree on the basis that the trial court had also awarded appellee nine-tenths of the corpus to cover arrearages even though appellant had, by the time of trial, received just one third of the principal; the balance was appellant’s only by future right, with contingent remainder-men to take if appellant did not survive the term of trust. The court held that only the amount already held by appellant was subject to immediate attachment, although a lien would serve to secure the rest. Id., 451 Pa. at 62, 299 A.2d at 314.

In the case before us the certificates were found by the trial court to have been accorded proper weight by the Master, who commented upon them as follows:

In addition the husband is listed as joint owner with his mother of $38,655.75 worth of certificates of deposit. That money is his mother’s but would be expected to pass to him upon her death if it had not sooner been expended for the mother’s benefit.

Master’s Report at 4-5. Ignoring appellant’s name on the certificates would have been impossible in reviewing his total assets for the reason that his standing with regard to a legal relationship, the joint tenancy with his mother, required explanation in context. However, the Master, and the trial court, went farther, according to the certificates some impact, the extent of which is unclear, in determining appellant’s financial position and the resultant award. This was error.

As already noted, we find the unequal distribution of property to have been appropriate. But, the emphasis must, for the sake of equity, be placed on appellant’s obvious advantages in education, employment classification, experience, and earning potential. It is because of these superior personal resources that we find the apportionment of marital assets to have been properly weighted in appellee’s favor, not because of appellant’s theoretical expectancy.

We therefore remand to the trial court for reconsideration of the equitable distribution award consistent with this Opinion.

Remanded. Jurisdiction is relinquished.

      . Section 401(d) lists as among those factors to be considered in distributing marital property:
      1. The length of the marriage.
      2. The 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 marriage.
      10. The economic circumstances of each party at the time the division is to become effective.

      . We note with disapproval that appellant has violated that provision of Pa.R.A.P. 2116(a), which limits the statement of questions to one page.

      . We note in this regard that appellant claims to have “custody” of the parties’ twenty-one year old son. Support of minor children is not a consideration in equitable distribution proceedings. Bold v. Bold, 358 Pa.Super. 7, 516 A.2d 741 (1986). Support of an adult child is even less germane to these proceedings.

      . Section 401(e) reads in pertinent part:
      (e) For purposes of this chapter only, "marital property” means all property acquired by either party during the marriage except:
      (4) Property acquired after separation until the date of the divorce ____


author: CIRILLO, President Judge:

text:
    535 A.2d 157
    COMMONWEALTH of Pennsylvania v. Joseph FLIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1987.
    Filed Dec. 21, 1987.

      David S. Shrager, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Allegheny County. We affirm.

Appellant, Joseph Flis, was charged with a single count of arson under 18 Pa.C.S. § 3301(a)(l)(i) for allegedly starting a fire on the porch at 508 McClintock Street, Pittsburgh. In so doing, appellant recklessly placed Laura Flis, his sister, in danger of death or bodily injury. On December 10, 1986, appellant proceeded to trial before a jury with the Honorable Robert E. Dauer presiding.

The victim, Laura Flis, testified as to the events she perceived on the night of the alleged arson. She stated that she was looking out the window of her sister’s house where she was living at the time, waiting for the arrival of her boyfriend. At about 12:30 a.m., Laura heard rustling noises outside. She looked out the window and saw a shadow. She testified that a person then walked towards the fence from the neighboring yard in a hunched-over manner. At that point she saw the person jump over the fence and approach the side of the house. When the individual entered upon the area of the yard illuminated by the house light, Laura recognized him as her brother. She then saw her brother toss a lighted match onto a sheet on the porch causing the sheet to go up in flames.

In his defense, appellant testified that he had been at home at 541 Ridgewood Street with his father, Adolf Flis, at the time of the arson. Adolf Flis testified likewise.

Five weeks before the arson, the appellant had been stabbed by his sister, Laura Flis, at 541 Ridgewood Street where she had resided at the time. Based on this stabbing, the appellant filed aggravated assault charges against his sister. A preliminary hearing was scheduled for two days after the arson. At the appellant’s trial, Laura Flis and the appellant gave varying accounts of how the stabbing occurred. Buttressing his defense, the appellant contended that Laura Flis’s identification of him as the perpetrator of the arson was an attempt to get even with the appellant for filing aggravated assault charges against her. In addition, appellant testified that because of his stab wound, he was physically unable to hunch over and walk or jump a fence as Laura Flis testified she saw the individual who set the fire do.

The jury found Joseph Flis guilty of the arson charge. A post-verdict motion for new trial was filed and denied. Subsequently, appellant was sentenced to a term of imprisonment of not less than five nor more than ten years. This appeal followed.

Appellant presents three issues for our review: (1) whether the trial court erred in refusing to allow relevant and material testimony from Adolf Flis pertaining to the victim’s motive for falsely accusing the appellant; (2) whether trial counsel was ineffective in three aspects, namely: (a) in failing to call known medical witnesses on behalf of the appellant to establish his physical abilities at the time of the alleged arson; (b) in failing to object to the introduction of prior criminal conduct or in the alternative in failing to file a motion to restrict the use of such testimony; and (c) in failing to object to questions by the prosecutor pertaining to a matter that the trial court had ruled was immaterial and irrelevant; and (3) whether the trial court erred by admitting opinion testimony regarding appellant’s drug addiction and intoxication.

The appellant’s first issue pertains to the court’s refusal to allow his trial counsel to question his father, Adolf Flis, about the stabbing incident. In an oral pre-trial motion, the Commonwealth moved to exclude all references to the stabbing incident. The motion was denied. At trial, Laura Flis testified to her version of the stabbing. She explained that on several occasions her brother, the appellant, had threatened her with bodily harm and threatened to have sex with her. To prevent the appellant from entering her room, she installed a lock outside her door and a latch inside. On the day of the stabbing incident, June 7, she was in her room talking on the phone to a friend when the appellant started yelling and shouting obscenities at her. Subsequently, according to Laura, he locked her in her room from the outside. She asked her friend on the phone to call her boyfriend to come over and help her. When Laura’s boyfriend and her father arrived at the house, the appellant unlocked Laura’s door, but threatened to stab and push her down the stairs if she attempted to leave the room. Laura emerged from the room holding a steak knife for protection, screaming at her brother. When he turned around, she saw something shiny in his hand and thinking it was a knife, stabbed him.

The appellant, in turn, testified that the incident was unprovoked. He stated that his sister had had a complete change in attitude in the weeks preceding the incident. She neglected her appearance, and ignored anyone who said anything to her in the house. He further recounted that on the day of the stabbing, he had merely informed his sister that her boyfriend had arrived and that if she wanted to see him she should go outside. In response to this notice, the appellant testified, Laura Flis emerged from her room yelling about people telling her what to do and then when he turned to enter his room, she stabbed him.

On direct examination of Adolf Flis, the appellant’s trial counsel attempted to question him about his recollection of the stabbing incident. The Commonwealth objected to the questioning on the ground that any further testimony on the stabbing incident would be irrelevant. In response, the appellant’s trial counsel argued that because of the discrepancies in the stories regarding the stabbing, the testimony of the father, Adolf Flis, would go to the issue of credibility, a key issue in the case. However, the appellant’s trial counsel failed to present an offer of proof as to what Mr. Flis’s version of the stabbing incident would reveal. Subsequently, the trial court agreed with the appellee that the testimony would be irrelevant and sustained the Commonwealth’s objection. In ruling on this issue in response to the appellant’s post-trial motion, the trial court concluded that Adolf Flis’s testimony concerning the stabbing incident was extrinsic evidence which would have been collateral and irrelevant under the circumstances.

It is well-established law in this Commonwealth that rulings on the relevancy of evidence are controlled by the discretion of the trial court and will only be reversed by an appellate court for abuse of that discretion. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 445, 467 A.2d 615, 621 (1983). In Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1975), the court articulated a two-step analysis required for determining the relevancy of evidence offered at trial: first, it must be determined if the inference sought to be raised by the evidence bears upon a matter at issue in the case, and second, the court must decide whether the evidence renders the desired inference more probable than it would be without the evidence. Id., 461 Pa. at 278, 336 A.2d at 284.

The appellant contends that Adolf Flis’s testimony regarding the stabbing would have served to demonstrate a motive for Laura Flis’s accusation of arson against the appellant and to impeach her credibility. The question of whether Laura Flis’s identification of the appellant as the arsonist was motivated by feelings of ill will caused by the stabbing incident certainly bears upon the critical issue in this case — the appellant’s guilt or innocence. Thus, the stabbing incident is an important matter here, and testimony pertaining to it is relevant. Moreover, if Laura Flis’s credibility could be shaken by the corroboration of the appellant’s account of the stabbing and the contradiction of hers, the appellant’s case would undoubtedly be strengthened. Her testimony must be perceived as credible to find the appellant guilty of the arson charge.

However, the second step of the relevancy analysis requires a determination that the evidence renders the desired inference more probable than it would without the evidence. Since Adolf Flis did not testify regarding the stabbing and since appellant’s trial counsel did not present an offer of proof, it is difficult to surmise whether his testimony would have completely corroborated either the appellant’s or Laura Flis’s version of the incident, corroborated part of one version and part of the other, or merely complicated matters by introducing a completely new version of the details of the incident. Appellee contends the few remarks Adolf Flis did make regarding the incident suggest his testimony would not have corroborated appellant’s version of the story. When asked if he heard his son describe the stabbing incident during the trial, Adolf Flis stated, “Yes, but it wasn’t like that all the way through the story.” This statement by Adolf Flis does seem to indicate that his testimony would not have completely corroborated either version of the incident that was presented at the trial. If so, it would have done little to shake Laura Flis’s credibility in relation to the appellant's, or to bolster the probability that Laura Flis’s identification of the accused as the arsonist was prompted by ill will. Moreover, since the testimony of the appellant as well as of Laura Flis revealed that she stabbed the appellant, that assault charges were filed against her for the incident, and that a preliminary hearing on the charges was scheduled for two days after the day of the arson, evidence necessary to support an inference of ill will on Laura Flis’s part in identifying the appellant was heard by the jury despite the exclusion of Adolf Flis’s testimony on the stabbing. Thus, given the questionable ability of Adolf Flis’s testimony to aid the appellant’s case, the discretion of the trial court must remain controlling in this case.

The appellant next raises three claims of ineffectiveness of counsel. The courts of this Commonwealth measure claims of ineffectiveness by first determining whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable merit, we must then determine whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Pierce, 515 Pa. 153, 158-159, 527 A.2d 973, 975 (1987) (citations omitted). In addition to these two determinations which must be resolved in the appellant’s favor, the appellant must demonstrate that counsel’s ineffectiveness caused him prejudice and affected the outcome of the trial. Id; Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986).

With this analysis in mind, we proceed to examine the appellant’s first claim of ineffectiveness of counsel, namely that his trial counsel was ineffective in failing to call known medical witnesses on behalf of the appellant to establish his physical inabilities at the time of the alleged arson.

The appellant argues that since his testimony revealed that his stab wound made it physically impossible for him to hunch over and walk or to jump a fence, the same acts Laura Flis stated the arsonist performed, testimony of the appellant’s attending physician and nurses would have been extremely probative in establishing and bolstering the appellant’s credibility. While this argument is correct, the appellant has not met his burden of offering a positive demonstration or offering to prove at an appropriate hearing that these witnesses’ testimony would have actually been helpful to the defense by confirming the appellant’s statements regarding his physical capabilities at the time of the arson. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981); Commonwealth v. Williams, 344 Pa.Super. 493, 503, 496 A.2d 1213, 1218 (1985); Commonwealth v. Nelson, 311 Pa.Super. 1, 14, 456 A.2d 1383, 1390 (1983); Commonwealth v. Rivera, 309 Pa.Super. 33, 38, 454 A.2d 1067, 1070 (1982). The burden of proving counsel’s ineffectiveness rests on the party alleging it. Commonwealth v. Wallace, 347 Pa.Super. 2487, 251, 500 A.2d 816, 818 (1985). This court cannot make a finding of ineffectiveness of counsel on the assumption that a physician’s or nurse’s testimony would have revealed what the appellant has suggested it would. Therefore, the appellant’s first claim of ineffectiveness of counsel is without merit.

Appellant next claims his trial counsel was ineffective in failing to object to the introduction of prior criminal conduct or in the alternative in failing to file a motion in limine to restrict the introduction of such testimony. Our supreme court has recently modified the rule on the introduction of prior convictions for the purpose of impeaching the credibility of witnesses. Under the old rule which was enunciated in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), the trial judge retained discretion in determining the admissibility into evidence of prior convictions involving dishonesty or false statement.

In Commonwealth v. Bighum, the supreme court limited the admissibility of prior convictions to “crimes involving dishonesty or false statement.” Bighum, 452 Pa. at 566, 307 A.2d at 262. As to those convictions of crimes involving dishonesty or false statement, the court defined a series of considerations which the trial judge was to take into account in determining their admissibility. Id., 452 Pa. at 567, 307 A.2d at 263. In Commonwealth v. Roots, the court more succinctly defined the rule established in Bighum by requiring trial courts to consider the following factors in determining the admissibility of prior convictions for impeachment purposes:

(1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; (2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; (3) the age and circumstances of the defendant; (4) the strength of the prosecutor’s case and the prosecutor’s need to resort to the evidence ...; and (5) the existence of alternative means of attacking the defendant’s credibility.

Roots, 482 Pa. at 39-40, 393 A.2d at 367.

The new rule as stated in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), revises Bighum and Roots “in favor of more concrete guidelines” for determining the admission of prior convictions. According to this new rule, evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. Randall, 515 Pa. at 415, 528 A.2d at 1329.

It is apparent that if the propriety of admitting the appellant’s convictions is reviewed under the old rule, a discussion of the factors to be considered in determining the admissibility of prior convictions must ensue; whereas, if their admissibility is reviewed under the new rule, their admission was clearly unobjectionable since the convictions were within the ten-year limit and “burglary is a crime connoting ‘dishonesty’ by any definition.” Commonwealth v. Bailey, 354 Pa.Super. 51, 511 A.2d 180, 182 (1986) (quoting Commonwealth v. Amos, 445 Pa. 297, 306, 284 A.2d 748, 752 (1971)). Thus, we must determine whether the new rule stated in Randall is to be applied retroactively.

Three approaches have been utilized by the supreme court in determining the propriety of applying a new law retroactively. In Commonwealth v. McCormick, 359 Pa. Super. 461, 519 A.2d 442 (1986), these three approaches were succinctly summarized as follows:

The common law approach set forth in U.S. v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801) is that an appellate court must apply the law as it exists at the time of its decision. Therefore, new decisions always have retrospective application to cases pending at the time of the decision. However, a modified form of the common law approach creates an exception to this rule where the new rule is a “clear break with the past” or where there are constitutional limitations. U.S. v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Alternatively, a court can selectively apply a decision retroactively. Under the selective approach, the court considers: 1) the purpose to be served by the new standard; 2) the extent of reliance by law enforcement authorities on the old standard; and 3) the effect on the administration of justice. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Where the purpose of the new standard affects the truth finding function, thereby raising serious questions about the accuracy of prior guilty verdicts, the new rule has been given complete retroactive effect. Williams v. U.S., 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).

Our review of the recent case law confirms the conclusion reached by the McCormick court that although each of these three approaches has been utilized by the supreme court in recent years, it is unclear whether one approach is to be followed above the others. McCormick, 359 Pa.Super. at 473, 519 A.2d at 247-48; see also Commonwealth v, Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986) (plurality opinion) (common law approach utilized); Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986) (common law and selective approach followed); Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985) (modified common law approach applied); Commonwealth v. Geschwendt, 500 Pa. 476, 454 A.2d 991 (1985) (plurality opinion) (modified common law and selective approach followed); Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) (modified common law approach employed); Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980) (selective approach utilized). Consequently, following the lead of the court in McCormick, we will proceed to determine the propriety of retroactively applying the Randall rule under all three approaches.

First, under the common law approach, since the supreme court’s decision in Randall did not specifically declare the ruling to have a prospective effect only, the Randall rule regarding the admissibility of prior convictions would be properly applied. Second, employing the modified common law approach, where retroactive application is given to cases pending at the time of the decision except where the new rule is a clear break with the past or where there are constitutional limitations, we find there is no clear break with the past since the Randall rule simply modifies an old rule. Randall, 515 Pa. at 415, 528 A.2d at 1329. Moreover, there is no constitutional limitation to retroactively applying Randall since Randall did not create any new rights for the appellant and, as such, none of his reliance interests would be violated by its application to this appeal. Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).

Last, we will apply the selective approach which requires consideration of the following factors: (1) the purpose to be served by the new rule; (2) the extent of reliance by law enforcement authorities on the old rule; and (3) the effect on the administration of justice. We note the supreme court stated the purpose of the Randall rule is to afford more certainty to trial judges’ rulings on the admissibility of prior convictions so there will be fewer instances where an appellate court acting on a record overturns a trial judge’s decision. Randall, 515 Pa. 514, 1528 A.2d at 1328. The appellant is requesting this court to do exactly what Randall is designed to prevent. Next, any reliance by law enforcement officers on the old rule is minimal. Since the old rule required trial courts to weigh five factors in determining the admissibility of prior convictions, there was little, if any, certainty provided by the rule. The Randall rule, on the other hand, provides a bright-line rule upon which law enforcement authorities can depend. Finally, applying Randall retroactively will not impede the administration of justice since rather than increasing the number of appeals disputing the admissibility or exclusion of prior convictions, appellants may be inspired to forego such appeals since a retroactive application of the new rule will make the outcome of such an appeal almost certain.

In summary, our employment of all three approaches to determine the propriety of applying Randall retroactively reveals no reason to refrain from doing so. Appellant’s convictions for burglary were properly admitted into evidence by the trial court under the Randall rule. Therefore, appellant’s trial counsel cannot be found ineffective for failing to object to their admission; even if a new trial were ordered and the admissibility of the convictions was objected to, the convictions would still be properly admitted into evidence. Consequently, we find no merit in the appellant’s second claim of ineffectiveness of counsel.

Lastly, appellant argues trial counsel was ineffective for failing to object when the prosecutor cross-examined Adolf Flis regarding the appellant’s glue-sniffing habits in a line of questioning which pertained solely to the events of the stabbing. Appellant claims trial counsel’s failure to object to this subject of cross-examination prejudiced him in two respects.

Appellant first argues he suffered prejudice because Mr. Flis’s responses to these questions of the prosecutor painted him as a “glue-sniffing drug addict.” We disagree. Before Adolf Flis even took the stand to testify, the appellant’s habit of glue sniffing had already been introduced into evidence by Laura Flis’s testimony. When questioned about why she believed the appellant would carry out his threats against her, she answered it was because he was on drugs and sniffed glue. In addition, while testifying about the stabbing, Laura Flis stated that in her opinion the appellant had been sniffing glue that day. Moreover, her testimony indicated that when the appellant sniffed glue he behaved more aggressively. Mr. Flis’s testimony, rather than corroborating or adding to this depiction of the appellant’s glue sniffing habits, contradicted and deflated it by disclosing that the appellant only sniffed glue off and on, and even when he did, his behavior was not troublesome.

Appellant’s second assertion of prejudice is that Adolf Flis’s testimony tended to corroborate Laura Flis’s description of the stabbing incident. Thus, the appellant argues, the Commonwealth was afforded the opportunity at trial to strengthen its case by eliciting testimony from Mr. Flis about the stabbing while the appellant was not given that opportunity. Again, we do not find the appellant’s argument of prejudice persuasive. The prosecutor’s questions about the appellant’s glue-sniffing habits did not refer to a specific date, but instead inquired into the habit in general. When the prosecutor began reciting a question which may have been designed to obtain information about the appellant’s habit and behavior on the day of the stabbing or the arson, the appellant’s trial counsel voiced an objection which the trial court sustained. Thus, the Commonwealth was not given the opportunity to delve into the events of the stabbing any more than the appellant was. Since we do not find the appellant’s demonstrations of prejudice to be convincing, we must dismiss appellant’s last claim of ineffectiveness of counsel.

The third and final issue raised by the appellant, whether the trial court erred by admitting into evidence opinion testimony regarding the appellant’s drug addiction and intoxication, was not raised in his post-trial motions. This issue, therefore, was not preserved for review by this court. Only those issues specifically raised in post-verdict motions are preserved for our review. Commonwealth v. Beckham, 349 Pa.Super. 430, 433, 503 A.2d 443 (1986).

Based on the foregoing discussion, the judgment of sentence entered in the Court of Common Pleas of Allegheny County is affirmed.


author: BROSKY, Judge:

text:
    535 A.2d 163
    Dorothea DERCOLI, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY and Grange Mutual Casualty Company.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1987.
    Filed Dec. 21, 1987.
    Petition for Allowance of Appeal Granted May 10,1988.

      Anthony N. Gemma, New Castle, for appellant.
    John R. Seltzer, New Castle, for Pennsylvania Nat., appellee.
    Peter E. Horne, New Castle, for Grange, appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   BROSKY, Judge:

This is an appeal from the Order of the trial court sustaining appellees’ demurrer and dismissing appellant’s complaint in this action in assumpsit.

On appeal, two issues are presented for our review: (1) whether the decision of the Pennsylvania Supreme Court in Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981), abolishing interspousal immunity, is to be given retroactive application; and (2) whether the duty of good faith and fair dealing requires an automobile insurer to properly advise its insured as to entitlement to present claims under the applicable policy.

Upon consideration of the trial court opinion and briefs by counsel, we affirm the order in question.

On July 21, 1980, appellant was a passenger in an automobile being driven by her husband. Mr. Dercoli fell asleep at the wheel and drove his car under the wheels of an oncoming tractor-trailor rig. Mr. Dercoli was killed' instantly and appellant was severely injured.

Pennsylvania National Mutual Insurance Company and Grange Mutual Casualty Company, (hereinafter appellees), undertook the handling, processing and payment of appellant’s insurance benefits. Payments were made to appellant until April, 1984, and in March, 1985, appellees informed appellant that no further payments would be made.

On January 17, 1986, appellant filed a civil action against appellees alleging that they had violated their duty of good faith and fair dealing by failing to advise her of the Pennsylvania Supreme Court decision in Hack v. Hack, supra. That decision abolished interspousal immunity, thereby making it possible for her to recover damages from her husband’s estate for injuries caused by his negligence.

Appellees filed preliminary objections in the nature of a demurrer asserting inter alia that (1) the Hack decision is not retrospective, and (2) an insurance carrier is not required to advise an insured so as to maximize benefits. The trial court dismissed the action based on the latter assertion.

On appeal, appellant questions first whether the Supreme Court’s decision in Hack, supra, should be applied retrospectively: It is our opinion that this is not the correct forum for such a determination. When appellant instituted the original complaint against appellees, she questioned their duty towards her. The manner in which Hack is to be applied is irrelevant to that decision, and our determination of its applicability can have no bearing on the underlying issue. The Hack case deals with the abolition of interspousal immunity. Appellant, here, is not suing her late husband’s estate, but rather, she is suing the insurance companies for failing to keep her abreast of the law. Any thoughts on the Hack decision would, at this point, be pure dicta. We, therefore, decline to give consideration to a question of law which has no relevance to the true issue at hand. •

Accordingly, we are left to decide whether appellees breached a duty of good faith and fair dealing towards appellant when they did not inform her of the possibility of receiving benefits as a result of the Pennsylvania Supreme Court’s decision in Hack v. Hack, supra. It must first be noted that appellant is attempting to recover on a liability policy as an injured third party by bringing a direct action against the insurers of the alleged tortfeasor. Unless the right is created by statute, or provided for by the policy in question, appellant cannot bring a direct action against appellees. Folmar v. Shaffer, 232 Pa.Super. 22, 332 A.2d 821 (1974). Thus, any action must be brought against the alleged tortfeasor and the estate of appellant’s late husband.

Additionally, appellant never made a claim under the liability provision of the policy, nor had any third party filed a lawsuit against the estate which the insurer would have had to defend. Thus, while an insurer does have a duty to act in good faith when processing a claim made by or on behalf of an insured, appellant did nothing to give rise to that duty. See, Gray v. Nationwide Mutual Insurance Co., 422 Pa. 500, 223 A.2d 8 (1966), (suit permitted against insurer for failure to act in “good faith” when settling claim); Gedeon v. State Farm Insurance Co., 410 Pa. 55, 188 A.2d 320 (1963) (insurer assumes á fiduciary position towards the insured and becomes obligated to act in good faith and with due care in representing the interests of the insured). Any duty on the part of appellees would be towards the estate of appellant’s late husband, and not towards any third party.

In its reasoning, the trial court has analogized this situation to that involving workmen’s compensation, Taglianetti v. Workmen’s Compensation Appeal Board, 503 Pa. 270, 469 A.2d 548 (1983). In that case, the claimant had contacted her employer’s personnel office on two occasions subsequent to receiving death gratuity benefits to determine whether she was entitled to any additional benefits. On those occasions, claimant was informed that she would not receive additional benefits. No discussion of workmen’s compensation benefits took place at that time, and the claimant was never informed of the existence or non-existence of workmen’s compensation benefits or of the right to file a claim. The Pennsylvania Supreme Court held that an insurance-carrying employer has no affirmative duty to apprise an employee or potential claimant of any and all available benefits. The Supreme Court continued by refusing to impose such a duty where none exists. The trial court, thus, reasoned that, “a carrier of liability insurance has no affirmative duty to advise anyone to file a claim on which it will ultimately be liable, even if that party is a named insured on the policy”. (Trial Court Opinion, Page 6). In light of the Supreme Court’s holding in Taglianetti, Id., we agree with this analysis and, therefore, will not now impose upon appellees, the duty to advise appellant of possible benefits resulting from her status as an injured third party in the instant case.

Order affirmed.


author: DEL SOLE, Judge:

text:
    535 A.2d 165
    COMMONWEALTH of Pennsylvania v. Michael Paul KRYSIAK, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1987.
    Filed Dec. 24, 1987.

      David A. Schroeder, Erie, for appellant.
    Ernest J. Disantis, Jr., Assistant District Attorney, Erie, for Com., appellee.
    Before ROWLEY, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

Appellant entered guilty pleas and was sentenced to a term of imprisonment for not less than ten nor more than 20 years on a charge of robbery. In addition, Appellant received consecutive terms of five to ten years on a criminal conspiracy charge and two and one-half to five years for possessing instruments of crime. Appellant’s co-defendant was sentenced by a different judge from the same court to a term of four to eight years on the robbery charge and four years consecutive probation on the charge of criminal conspiracy.

Appellant claims the trial court failed to articulate sufficient reasons in support of the sentence. Appellant also contests the disparity of sentences handed down for himself and his co-defendant. Finally, Appellant appeals from the imposition of consecutive sentences for the inchoate offenses of conspiracy and possession of instruments of crime. On this latter assignment of error, Appellant maintains he cannot be convicted of both criminal conspiracy and the possessing offense in that they were committed with a single objective in view.

For the reasons which follow, we affirm Appellants sentence in part and sua sponte amend Appellant’s sentence with regard to the inchoate offense of possessing instruments of crime.

The right of appeal from the discretionary aspects of sentencing is neither automatic nor absolute as the allowance of such an appeal rests within the discretion of the Superior Court. (See 42 Pa.C.S.A. § 9781(b)). An appellant who challenges a discretionary aspect of his sentencing shall set forth in his brief a concise statement of the reasons relied upon for the allowance of his appeal. The appellant is further required to present this statement prior to his offer of arguments on the merits of his claim. Pa.R.App.P. 2119(f). A brief by an appellant which fails to contain such a statement is defective. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

It has been determined that such a defect is procedural and may be overlooked by the Superior Court providing the Appellee does not object to the procedural irregularity. In the instant case, Appellant’s brief lacks the concise statement required by Pa.R.App.P. 2119(f). However, the Commonwealth has not objected to Appellant’s procedural defect and has therefore failed to preserve the question of Appellant’s non-compliance for our review. Since the failure to properly follow the Appellate Rules with regard ]to the discretionary aspects of sentencing amounts to procedural error, such a defect is waived. Leaving this behind, it is well within our reach to examine the discretionary aspects of Appellant’s sentences. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987), Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139 (1987).

Appellate review of the discretionary aspects of sentencing is permissible if, upon examination of the record, this court determines there is a substantial question as to whether sentence is inappropriate. Commonwealth v. Easterling, 353 Pa.Super. 84, 509 A.2d 345 (1986). (Also see 42 Pa.C.S.A. § 9781(b)). We hold today that an averment by Appellant of disparate sentences between two or more co-defendants constitutes a substantial question necessitating our exercise of jurisdiction to review. Therefore, we will consider Appellant’s challenge that the disparity between his sentence and that of a co-actor requires resentencing.

Appellant specifically calls our attention to the sentencing record and its claimed failure to substantiate why his sentence is more severe than his co-defendants despite the fact that both parties have been convicted of the same crimes. Our view of Appellant’s sentencing fails to support this contention. The sentencing record is replete with substantiating observations, not the least of which is a recitation of Appellant’s prior felony record which, as the sentencing court reasonably concludes, elucidates Appellant’s propensity for a continued life of progressively serious crime.

It is quite apparent that the sentencing court examined a wide array of factors to substantiate the severity and resulting disparity of Appellant’s sentence. In addition to its exhaustive references to Appellant’s prior record, the court carefully considered the aggravating circumstances which accompanied Appellant’s most recent felony conviction. It measured Appellant’s rejection of whatever lessons he may have learned as a result of his prior periods of incarceration as well as the likelihood that a less stringent sentence may very well place others in peril of another of Appellant’s serious crimes. Moreover, Appellant’s sentence was imposed with an eye toward the various factors designed to assist the court in reaching a reasonable disposition of Appellant’s sentence. Among them includes a presentence report, Appellant’s personal background, the nature of Appellant’s criminal acts and, as stated earlier, Appellant’s extensive prior record. It is also noteworthy that throughout Appellant’s sentencing process, the court was cognizant of the sentence received by Appellant’s co-defendant.

The methods to be used to justify a disparity of sentences between co-defendants when varied sentences are handed down by separate sentencing judges from the same court are well established. As stated by the Supreme Court in Commonwealth v. Burton, 451 Pa. 12, 301 A.2d 675 (1973), it has never been a rule in this Commonwealth that co-defendants are required to receive equal sentences. Id., 451 Pa. at 15, 301 A.2d 675. Moreover, disparity between sentences for co-defendants is permissible and will be upheld where there is an adequate statement of reasons. Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765 (1984). Notwithstanding the appreciable disparity of sentences, we are satisfied that the record adequately substantiates the court’s sentencing determinations.

Appellant attempts to rely on the case of Commonwealth v. Holler, 326 Pa.Super. 304, 473 A.2d 1103 (1984) in which we said when co-defendants are sentenced by different judges from the same court there should not be a great disparity of sentences unless the facts exist to warrant unequal sentences and those facts are articulated on the record. The Holler case is distinguishable on factual and procedural grounds, with the essential distinctions arising out of the woefully inadequate sentencing record in Holler.

We therefore affirm this discretionary aspect of the trial court’s imposition of Appellant’s sentence.

The remaining challenge to the trial court’s sentencing concerns its failure to articulate sufficient reasons in justification of Appellant’s sentence. In Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978), this court restated the well settled principle that the imposition of a proper sentence is a matter vested in the sound discretion of the sentencing judge. However, this discretion is not unbridled in that the sentencing judge must state for the record those reasons which lead to the imposition of appellant’s sentence, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and how the trial court’s sentence is responsive to and reflects the standards embodied in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., Commonwealth v. Edward, 303 Pa.Super. 454, 472, 450 A.2d 15, 23-24 (1982) (citations omitted). As the Riggins court explained:

[RJequiring the trial court to articulate its reasons for selecting a sentence will promote more thoughtful consideration of relevant factors and will help rationalize the sentencing process. It will safeguard against arbitrary decisions and prevent consideration of improper and irrelevant factors.

Id., 474 Pa. at 129, 377 A.2d at 147 (footnote omitted).

Also, the Legislature has embraced this requirement in 42 Pa.C.S.A. § 9721(b) which reads in pertinent part:

In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed____ Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

Thus, the requirement that a trial court articulate the reasons for its sentence is not discretionary but mandatory. Therefore, where a party claims that the trial court failed to set forth reasons or sufficient reasons for the sentence imposed, the Superior Court’s appellate jurisdiction is in-yoked by filing a notice of appeal as opposed to seeking this court to exercise its discretionary jurisdiction pursuant to 42 Pa.C.S.A. § 9781(b) as defined in Commonwealth v. Tuladziecki, supra. However, this issue must be preserved at the trial court level by the timely filing of an appropriate motion to modify the sentence. The trial court’s failure to articulate sufficient reasons for a sentence does not make the sentence “illegal” ab initio but presents a legal basis for vacation of the sentence if it has been properly preserved and properly presented to the Appellate Court. 42 Pa.C.S.A. § 9721(b).

Our analysis of the sufficiency of the trial court’s reasons for Appellant’s sentence mirrors our treatment of Appellant’s disparity of sentence claim. The sentencing record unequivocally supports Appellant’s term of incarceration. Moreover, it cannot be said that the statement of the trial judge does not reflect a thoughtful consideration of the principles and standards set forth in Riggins. We therefore affirm Appellant’s sentence.

Finally, Appellant raises an additional sentencing error pursuant to 18 Pa.C.S.A. § 906 which bars multiple convictions. The Commonwealth concedes and we agree the sentencing in the instant case does not comport with the direction set forth in 18 Pa.C.S.A. § 906. Section 906 bars multiple convictions for offenses defined by this chapter for conduct designed to commit or culminate in the commission of the same crime. Our reading of this section leads us to conclude that the sentences imposed by the trial court for Appellant’s inchoate offenses were not abusive, but illegal. Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980). We note that while certain procedural claims may be waived if not properly preserved, no such waiver applies to a § 906 claim. Moreover, an improper conviction of two inchoate crimes renders the resulting sentence illegal. Id. While neither party focuses on the question of an illegal sentence and its impact on our review, we will resolve the matter sua sponte. As such, we find no reason to discuss merger concepts. Inasmuch as the trial court’s sentencing of Appellant for both criminal conspiracy and possessing instruments of crime was wrong, this court has the option to remand for resentencing or amend the sentence directly. (See Commonwealth v. Gonzales, 297 Pa. Super. 66, 443 A.2d 301 (1982)). Seeing no reason to merge an illegal sentence, we vacate the sentence imposed for the possession of instruments of crime. Commonwealth v. Wanamaker, 298 Pa.Super. 283, 288, 444 A.2d 1176, 1179 (1982); Commonwealth v. Tingle, 275 Pa.Super. 489, 499, 419 A.2d 6, 11 (1980).

Judgment of sentence as modified is affirmed.

ROWLEY, J., agrees that judgment of sentence should be modified, and as modified, affirmed. However, he would deny appellant’s petition for leave to appeal on the issue of failure to articulate sufficient reasons.

JOHNSON, J., concurs in the result.