author: PER CURIAM:

text:
    644 A.2d 751
    COMMONWEALTH of Pennsylvania, Appellee, v. Junior ATKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1994.
    Filed June 23, 1994.
    Michael L. Rosenfield, Pittsburgh, for appellant.
    David Gorman, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.

      Before DEL SOLE, FORD ELLIOTT and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal by appellant, Junior Atkins, from an order of court denying his motion for total remission of a bail forfeiture. We reverse and remand.

Appellant, a New Jersey resident, was arrested in Blair County on June 5, 1992 and charged with possession of a controlled substance, delivery of a controlled substance, and unsworn falsification to authorities. ' Bond was set at $110,-000.00 with the condition that appellant remain in Pennsylvania. On the motion of defense counsel, the trial court modified the conditions of appellant’s bail, permitting him to return to New Jersey upon his release. Appellant was released from custody when his wife posted $11,000.00 cash bail, 10% of the bond.

On December 1, 1992, when appellant failed to appear in court, the trial court issued a bench warrant for his arrest and ordered appellant’s bail forfeited to Blair County. The trial court rescinded the bench warrant on December 3, 1992. The following day, the trial court revoked its order forfeiting bail and reinstated bond at $220,000.00, providing that the cash already posted was sufficient security for this increased bond.

On January 19, 1993, appellant appeared before the trial court, present counsel entered his appearance, prior counsel was granted leave to withdraw, and the case was continued until the March term of court. On or before March 8, 1993, counsel notified the trial court that appellant was incarcerated in the state of New York. When appellant and counsel failed to appear when the case was called on March 8th, the trial court issued a bench warrant for appellant’s arrest and ordered his bail forfeited.

The bench warrant was cleared on August 4, 1993, when appellant was transferred from Sing Sing Prison in New York to the Blair County Jail. On August 6, 1993, appellant appeared with counsel before the trial court and entered guilty pleas to all of the charges. Appellant was sentenced to serve a term of 11 to 23 months imprisonment and to pay the costs of prosecution and a fine of $800.00. At the conclusion of the hearing, appellant made an oral motion for a total remission of the bail that had been forfeited on March 8, 1993. The trial court denied the motion for total remission, but granted a partial remission from the $220,000.00 forfeited to a total of $110,000.00. As $11,000.00 cash had been posted as bail for appellant’s release, he was ordered to pay the remaining $99,000.00 over a period of ten years.

On appeal, appellant claims that the trial court erred in failing to grant a total remission of the forfeited bail. Appellant contends that he did not voluntarily fail to appear on March 8, 1993, as he was incarcerated in New York at that time. As a result, he submits that the trial court abused its discretion in failing to grant a total remission of the forfeited bail.

In general, bail has been long recognized as a procedure through which a defendant provides a form of collateral in exchange for his release from custody. Commonwealth v. Chopak, 532 Pa. 227, 615 A.2d 696 (1992). It secures the defendant’s future appearance and the other requirements of his bond. Id. The trial court has the authority to order forfeiture of bail upon the occurrence of a breach of a condition of bail. Id.; Pa.R.Crim.P. 4016(A)(1)(a). However, once bail has been forfeited, Pa.R.Crim.P. 4016(A)(1)(c) provides that “[t]he issuing authority or the court may direct that a forfeiture be set aside upon such conditions as may be imposed if it appears that justice does not require enforcement of the forfeiture.” Thus, the decision to allow or deny the remission of a bail forfeiture lies within the sound discretion of the trial court. Commonwealth v. Chopak, supra.

An “abuse of discretion” is not merely an error of judgment. Commonwealth v. Wade, 485 Pa. 453, 402 A.2d 1360 (1979). But if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, the court’s discretion is abused. Id.

Although there are few cases defining the considerations to apply in ruling on a motion for remission, the opinion in United States v. Ciotti, 579 F.Supp. 276 (W.D.Pa.1984) is instructive on this point. Regarding the remission of forfeited bail under Fed.R.Crim.P. 46(e), Ciotti states that when considering whether justice requires the enforcement of a bail forfeiture, the court must look to: (1) the willfulness of the defendant’s breach; (2) the cost, inconvenience and prejudice suffered by the government as a result of the breach; and (3) any explanation or mitigating factors present in the case. United States v. Ciotti, 579 F.Supp. at 278. See, Commonwealth v. Chopak, 615 A.2d at 703 (Where the defendant fled the jurisdiction in blatant disregard of the obligations agreed to and required in exchange for his release, and because he was not prevented from appearing by some official intervention, bail forfeiture was an appropriate sanction and no mitigating factors were present to support remission).

Applying the above standards to the record of the instant case, it is clear that all of these considerations weigh in favor of total remission of the forfeited bail. When appellant’s case was called on March 8, 1993, the trial court was aware that appellant was being held in custody by the authorities in New York. Rather than holding the case in abeyance until appellant was released from custody in New York, the trial court issued a bench warrant for appellant’s arrest and forfeited his bail solely because appellant failed to appear in court on that date. In ruling on the motion for total remission of the forfeited bail, the trial court misapplied the foregoing law as it based the forfeiture solely on appellant’s failure to appear on March 8th. Appellant’s failure to appear was the result of the intervention of the officials in New York and not a willful breach by appellant. United States v. Ciotti, supra; Commonwealth v. Chopak, supra. In addition, there are no facts presented which indicate that the Commonwealth has borne a great cost or has been inconvenienced or prejudiced by appellant’s failure to appear. United States v. Ciotti, supra. When appellant was released to the authorities in Blair County, he appeared before the trial court, entered guilty pleas to the charges, and was sentenced to a period of confinement and to pay the costs of prosecution and a fine. Under these circumstances, to require appellant to also pay forfeited bail in the amount of $99,000.00 is manifestly unreasonable and contrary to the law. Commonwealth v. Wade, supra. As a result, we find that the trial court abused its discretion in failing to order total remission of the forfeited bail in this case.

Order of court reversed and the case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.


source: Caselaw Access Project

author: SAYLOR, Judge.

license: Public Domain

text:
    644 A.2d 753
    Jacquelwyn S. RESSLER, Appellee, v. Jay L. RESSLER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1994.
    Filed July 6, 1994.

      Andrew H. Appel, Lancaster, for appellant.
    Gary G. Krafft, Lancaster, for appellee.
    Before TAMILIA, SAYLOR and HOFFMAN, JJ.
   SAYLOR, Judge.

Appellant, Jay L. Ressler, appeals from the order of the Court of Common Pleas of Lancaster County modifying the recommendations of the special divorce master.

Jay L. Ressler (Husband) and Jacquelwyn Ressler (Wife) were married on November 30,1957 and separated on July 17, 1990. This was both parties’ first marriage and their three children are emancipated. Husband is 60 years old and was employed at the Armstrong World Industries floor plant during the entire course of the parties’ marriage. In 1990, Husband’s last full year of employment, he earned $36,484. Approximately four months after the parties separated, Husband’s position at Armstrong was terminated and he received a lump severance payment of $69,000. At the date of termination, Husband was eligible for retirement and currently receives $1,824 per month in retirement benefits, which will be reduced to $1,101 per month in 1996 when Husband’s social security benefits become available. Any change in Husband’s employment status, however, will not effect his retirement benefits. Husband is not currently employed, but does volunteer for charity.

Wife is 57 years old and, although in good physical health, has suffered from depression since 1968 which requires her to take medication. During the marriage, Wife performed household chores which included caring for the children, cooking, and cleaning. In 1986, Wife obtained employment outside the home and has been employed at a variety of different waitressing, babysitting, or housecleaning jobs. She has seldom remained with the same employer for over six months and has never remained with the same employer for over a year. The highest wage earned by Wife during her employment was $5.00 per hour. In 1991, Wife’s total wages were $7,585.

On December 30,1988, Wife filed a divorce complaint on the grounds of irretrievable breakdown and indignities. The special master filed his report and recommendation on November 19, 1992 and Wife filed exceptions to the report. On September 20, 1993, the trial court entered an order modifying the master’s recommendations. The trial court held the following: Husband’s lump sum severance payment of $69,000 should be considered a significant factor in the equitable distribution of the parties’ marital property; Wife should receive alimony of $110 per week and the sum of $500 per month from Husband’s retirement plan; and Wife should be awarded $5,600 for the fair rental value of the marital home. Husband then filed this timely appeal.

Husband raises the following issues on appeal: 1) Whether the trial court abused its discretion in considering Husband’s lump sum severance payment a significant factor in determining equitable distribution; 2) Whether the trial court abused its discretion in increasing the master’s $300 per month recommended distribution of retirement income to $500; 3) Whether the trial court abused its discretion by awarding Wife the fair rental value of the marital residence; 4) Whether the trial court abused its discretion in awarding Wife alimony.

“Our standard of review in assessing the propriety of a marital property distribution is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure.” Harasym v. Harasym, 418 Pa.Super. 486, 494, 614 A.2d 742, 746 (1992). “An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Zollars v. Zollars, 397 Pa.Super. 204, 208, 579 A.2d 1328, 1330 (1990) alloc. den., 527 Pa. 603, 589 A.2d 693. “An award of alimony, counsel fees, and property distribution are within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.” Harasym v. Harasym, supra, 418 Pa.Super. at 492, 614 A.2d at 745.

Husband first contends that the trial court abused its discretion by considering his severance payment as a significant factor in the equitable distribution scheme when Husband was not notified of either his termination or his severance payment until four months after the parties separated. In LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986) alloc. den., 514 Pa. 648, 524 A.2d 494, the Superior Court held that early retirement incentives received by husband after separation were not marital property because husband’s right to receive these benefits did not accrue prior to the parties separation; thus wife could not have expected to enjoy these payments since neither party had any idea that husband would receive the payments until after the parties separated.

Cases in other jurisdictions which have considered the issue of severance pay have also dealt only with the issue of whether or not severance pay is marital property subject to equitable distribution. For example, in Ryan v. Ryan, 261 N.J.Super. 689, 619 A.2d 692 (Ch.Div.1992), -wife sought equitable distribution of severance pay received by the husband as a result of his employment at IBM.' Husband asserted that because the severance payment was received over two and a half years after the complaint for divorce was filed, the money was not subject to equitable distribution. The New Jersey Superior Court stated that

The crucial issue here is the determination of the nature of the severance pay. If the payment was intended to replace post-marital earnings, it would warrant a separate property characterization. If, however, it has some other purpose relating to compensation for work performed during the marriage, it would qualify as marital property for the purpose of equitable distribution, regardless of the timing of the divorce complaint.

261 NJ.Super. at 696, 619 A.2d at 695.

The court concluded that the severance payment was, in fact, compensation for past labor and not a replacement for future earnings, because the amount was based on the husband’s past services to IBM; thus, the husband’s right to receive severance pay was legally and beneficially acquired during the marriage and as such the payment must be considered as a marital asset for the purpose of equitable distribution.

In In re Holmes, 841 P.2d 388 (Colo.Ct.App.1992), at the time of the divorce the husband had not yet received notice of termination. The trial court held that the severance pay option was not deferred compensation for services that had been performed by the husband during the marriage. It also found that although the plan was enacted during the marriage and would be valued based on the length of service performed during the marriage, the right to such severance was dependent on receiving a company termination notice. The Colorado Court of Appeals agreed, noting that any severance payments eventually received would be a replacement for “expected loss of income,” rather than “deferred compensation for services rendered during marriage.” Accordingly, the severance pay, unlike retirement pensions, was nohmarital property subject to division.

Additionally, in Franklin v. Franklin, 116 N.M. 11, 859 P.2d 479 (1993) relied upon by Husband, the New Mexico Court of Appeals held that husband’s severance payment which was received after the divorce was Husband’s sole and separate property to which wife had no claim.

In this case, however, we need not reach this issue since the trial court determined that Husband’s severance payment was non-marital property the termination of Husband’s employment and the distribution of the severance pay having occurred four months after the parties’ separation, and Husband does not challenge this ruling on appeal. The only issue before us, therefore, is whether the severance payment is a factor which the trial court could properly consider in effecting equitable distribution of the parties’ marital property.

The factors which are to be considered by a trial court in making equitable distribution are set forth in Section 3502 of the Divorce Code, 23 Pa.C.S.A. § 3502(a)(l)-(ll):

(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
(11) Whether the party will be serving as the custodian of any dependent minor children.

This list of relevant factors is not exhaustive, however:

[T]here is no simple formula by which to divide marital property. The method of distribution derives from the facts of the individual case. The list of factors of 401(d) serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions.

Diamond, v. Diamond, 360 Pa.Super. 101, 114, 519 A.2d 1012, 1018 (1987), alloc. den., 516 Pa. 633, 533 A.2d 92 (1987) (Citation omitted).

Husband argues that because the severance payment is not marital property it should not have been considered by the trial court as a factor in determining equitable distribution. We disagree. Section 3502 contemplates the court’s consideration of nonmarital assets available to the parties at the point in time at which the court is structuring an equitable scheme of distribution. For example, Section 3502 directs a trial court to take into account “the opportunity of each party for future acquisitions of capital assets and income”; “the sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits”; “the value of property set apart to each party”; and “the economic circumstances of each party ... at the time the division of property is to become effective.” 23 Pa.C.S.A. § 3502(5)(6)(8)(10) (Emphasis added).

As our Supreme Court observed in Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988):

The statute ... sets forth a number of factors which focus on the present needs and financial situations of the parties, including their “amount and sources of income,” “employability,” “estate, liabilities and needs,” chances for “future acquisitions of capital assets and income,” “sources of income”, the “value of the property set apart” as non-marital property, “standard of living,” and the “economic circumstances of each party at the time the division of property is to become effective.” (Emphasis added)

Id. at 382, 543 A.2d at 536.

Although the severance payment which was received by Husband four months after the separation was nonmarital property, it was clearly an asset possessed by Husband at the time of the court-ordered equitable distribution even if characterized as a replacement of future earnings. Thus, it was not an abuse of discretion for the trial court to give some weight to this asset in its calculations.

Husband secondly contends that the trial court abused its discretion by increasing the monthly amount which was to be distributed to Wife from Husband’s retirement benefits from the $300 amount recommended by the master to the sum of $500. Both the master and the trial court found that Wife does not have the earning capacity and job skills of Husband and has a history of psychiatric problems. In his report, the master stated that Wife “is in a desperate financial situation with little income, almost no job skills, no retirement, no health care, little savings, no assets of her own other than savings, all at age 56.” On the basis of these facts, the trial court did not abuse its discretion in awarding Wife $500 per month from Husband’s retirement benefits.

Husband next argues that the trial court abused its discretion in awarding Wife $5,600.00 as the fair rental value for the parties’ marital residence during the time that she was out of possession. Husband contends that his payment of the mortgage on the residence during this period of time served to offset Wife’s entitlement to a rental credit.

Trembach v. Trembach, 419 Pa.Super. 80, 88, 615 A.2d 33, 37 (1992) set forth the proper procedure to follow in calculating rental credit:

First, the general rule is that the dispossessed party is entitled to a credit for the fair rental value of jointly held marital property against a party in possession of that property, provided there are no equitable defenses to the credit. Second, the rental credit is based upon, and therefore limited by, the extent of the dispossessed party’s interest in the property. Generally, in regard to the marital home, the parties’ have an equal one-half interest in the marital property. It follows, therefore, that in cases involving the marital home that the dispossessed party will be entitled to a credit for one-half of the fair rental value of the marital home. Third, the rental value is limited to the period of time during which a party is dispossessed and the other party is in actual or constructive possession of the property. Fourth, the party in possession is entitled to a credit against the rental value for payments made to maintain the property on behalf of the dispossessed spouse. (Citations omitted)

See also, Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983).

Wife was out of possession of the marital residence from July 9,1990 to October 5,1992. As a consequence, during this period, Wife paid rents ranging from $300 to $425 per month. Although Husband testified that during this period he only resided at the marital residence for two days a week, he in fact enjoyed constructive possession of the property and allowed his adult son to live there rent free during his absences.

Although Husband did make payments on a loan secured by the marital residence, the trial court found that this was not the original mortgage, but a home equity loan taken out in 1986 to enable Husband to purchase a new truck, and held that these payments should not be deducted from the fair rental value. The trial court awarded Wife $5,600 as the fair rental value of the marital residence calculated as follows: “At a fair rental value of $550.00 less $150.00 per month in taxes paid on the home, half the net value would equal $200.00 per month for a period of twenty-eight (28) months, totalling $5,600.00.” Under these facts, the trial court did not abuse its discretion in making an award to Wife for half of the fair rental value of the marital residence.

Finally, Husband argues that the trial court’s award of alimony to Wife fails to effectuate economic justice between Husband and Wife in light of the fact that Wife was awarded twice the amount of marital property received by Husband under equitable distribution.

Section 3701 of the Divorce Code provides:

(a) General rule. Where a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.

23 Pa.C.S.A. § 3701.

In determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties’ earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage.

Harasym v. Harasym, 418 Pa.Super. at 495, 614 A.2d at 746, citing Edelstein v. Edelstein, 399 Pa.Super. 536, 539, 582 A.2d 1074, 1076 (1990) alloc. den., 528 Pa. 611, 596 A.2d 157 (1991); 23 Pa.C.S.A. § 3701(b).

Section 3701(b)(16) specifically directs a court to consider: Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.

23 Pa.C.S.A. § 3701(b)(16). (Emphasis added).

The master recommended that Wife receive no alimony, reasoning that she could sell the house and net about $85,000, she was awarded $27,000 in certificates of deposit, and she has her earned income and her portion of Husband’s retirement plan. The trial court, however, found the master’s failure to award alimony unreasonable. The trial court reasoned that Wife should be awarded alimony because Husband, in comparison to Wife, has higher income and higher future expectations of income; whereas Husband received a lump sum severance payment of $69,000 and receives monthly retirement plan benefits totaling $1,824, Wife earns approximately $7,585 per year and has a poor earning history. The trial court calculated that if $110 per week in alimony were to be added to Wife’s current income of $7,585 until Wife becomes eligible for social security, but in no event later than her 65th birthday, Wife would still receive less than $15,000 per year. This ignores the fact that the court also awarded Wife the sum of $500 a month from Husband’s pension benefits.

In actuality, when these pension benefits of $6,000 a year are added to Wife’s annual earnings of $7,585 and alimony totaling $5,720 a year, Wife would receive a total annual income of $19,305, or a monthly income of $1,609. Husband, on the other hand, would be left with a monthly income of only $849 after subtracting $500 (pension benefits paid to Wife per the court’s order) and $475 (monthly alimony payable to Wife per the court’s order), or an annual income of $10,188, as compared to the $36,484 which he earned during his last year of employment.

Additionally, the trial court failed to consider the assets which Wife received in equitable distribution, including the house which the master valued at $85,000, $5,600 in rental credit, and $27,000 in certificates of deposit, for a total of $117,600. A nominal return of four percent on these assets would yield $4,704 per year or an additional $392 per month.

As a consequence of the alimony award, Wife will have twice the annual income of Husband and will enjoy a better theoretical standard of living than during the parties’ marriage which was established based on the Husband’s income as the primary source of the family’s support. See 23 Pa.C.S.A. § 3701(b)(8). While it is true that Husband could improve his income situation by returning to work, at 60 years of age his employment options and income potential are limited.

The award of alimony by the court was an abuse of discretion since it failed to “[ejffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights” in accordance with the expressed policy of the Divorce Code, 23 Pa.C.S.A. § 3102(a)(6).

The portion of the order awarding Wife alimony is vacated. In all other respects the order is affirmed. Jurisdiction is relinquished.

      . The Pennsylvania Divorce Code defines marital property as "all property acquired by either party during the marriage ... except (4) Property acquired after final separation until the date of divorce ..." 23 Pa.C.S.A. § 3501(a) and (a)(4).

      . Section 401(d) of the Divorce Code was the predecessor to current Section 3502 and the list of factors is substantially the same in both.


author: DEL SOLE, Judge.

text:
    644 A.2d 759
    COMMONWEALTH of Pennsylvania v. Monty BIRCH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1994.
    Filed July 7, 1994.

      Stanley W. Greenfield, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, DEL SOLE and FORD ELLIOTT, JJ.
   DEL SOLE, Judge.

Monty Birch appeals from the judgment of sentence entered following a jury conviction of Recklessly Endangering Another Person. 18 Pa.C.S.A. § 2705. Appellant was sentenced to two years probation, 200 hours of community service and a $2,000 fine was imposed. We reverse and remand.

Appellant was originally charged with one count of Aggravated Assault (18 Pa.C.S.A. § 2702(a)(4)) and one count of Recklessly Endangering Another Person, and his first trial by jury ended in a mistrial. At his second trial, he was convicted of Reckless Endangering Another Person and acquitted of Aggravated Assault. This conviction was affirmed by this court but the supreme court reversed and remanded the case for a new trial. Commonwealth v. Birch, 532 Pa. 563, 616 A.2d 977 (1992). This third trial resulted in the conviction which is on appeal.

Christian Davis testified that he and Anthony Price were attempting to steal appellant’s car. Davis stated that he broke the car window with a screwdriver and began opening the door when he heard someone yell “hey”. Price was already running and Davis started to run, was shot in the hip, fell and shattered his femur.

Appellant testified that he was checking the locks on his doors when he noticed someone leaning on his automobile. He decided to investigate and proceeded from the back door of his home carrying a pistol. He had a licence to carry a firearm. He approached the two men near his car, coming within seven feet, and yelled “hey.” He stated that one of the men held a shiny metallic object in his hand. He described the man as doing a fast turn at the same time the other man emerged from the opposite side of the car. As the two men started heading directly toward him, appellant pulled his gun and fired the shot which struck Christian Davis. Appellant testified that the men ran by him, and that he was frightened and ran back to his house. The shiny metal object was later found and was a screwdriver.

The sole issue on appeal is whether the trial court erred by instructing the jury on the legal rights and duties of an owner in protecting one’s property with force (18 Pa.C.S.A. § 507). The defendant contends he did not advance the defense that he was entitled to use lethal force to protect his property. Rather he claims his use of lethal force was in order to protect his person (18 Pa.C.S.A. § 505) in the belief that he was threatened with serious bodily harm. This defense was also presented to the jury in the court’s charge.

We begin our analysis by noting:

In questions concerning jury instructions, in determining whether the trial judge committed an abuse of discretion or error of law, we consider the charge as a whole in light of the evidence presented. Papandrea v. Hartman, 352 Pa.Super. 163, 507 A.2d 822 (1986). If error is found to have been committed, a new trial is warranted only where such error has been clearly prejudicial to appellant. Commonwealth v. Tharp, 373 Pa.Super. 285, 541 A.2d 14 (1988).

Commonwealth v. McCauley, 403 Pa.Super. 262, 277-278, 588 A.2d 941 (1991).

Defense counsel objected to the trial court’s charge on justification for using force in the protection of property claiming the defense did not advance a theory that appellant shot to protect his automobile, but that the shooting was justified in defense of his person. Appellant asserts that by instructing the jury on a justification defense for the protection of property, it was a foregone conclusion that he would be convicted because he presented no evidence establishing the elements of that defense.

The Commonwealth argues that the instruction was properly given because defense counsel, in both opening and closing arguments, made statements to the effect that appellant was entitled to protect his property. For instance, in opening statements, defense counsel commented:

Now, ladies and gentlemen, ... the question is, may a homeowner, otherwise totally responsible with no criminal record of any kind, seek to protect his property? And if so and in seeking to protect it and investigating what it is that is happening to his property, may that owner arm himself and protect himself when he believes he is confronted with a danger to his own person? In short, may that owner respond by using force when he believes that he himself is in danger, having gone to investigate the property that is his right to, in fact, investigate?

Trial transcript 3-3-93 at 27-28. Defense counsel, then asked the jurors, “[d]id he have a right to go out there with a gun that day or go out at all to investigate?” (Trial Transcript 3-3-93 at 28). During the discussion on points for charge, the prosecuting attorney expressed concern that defense counsel’s opening statements may have confused the jury regarding individuals’ right to use lethal force to protect their cars. The trial court initially responded that the case was not about defense of property. However, when defense counsel made it known to the court that he was going to make the argument that a homeowner has the right to investigate threats to one’s property, the court decided to charge on defense of property.

In closing arguments, defense counsel made the following statements:

Ladies and gentlemen, ... Does a homeowner have a right, under the law, to investigate whatever it is that causes him to suspect that his property is being invaded or, in fact, subject to some act of impropriety; and two, if he, in fact, approaches the circumstances where he places himself in danger, can he respond by using dangerous force under the circumstances?

Trial transcript 3-3-93 at 46-47.

Now, the prosecution must prove — the defense doesn’t have to prove anything, but we have accepted the challenge anyway. The prosecution must prove to you that on this particular night, Monty Birch acted recklessly and endangered this man, Davis, who was burglarizing his car, or attempting to steal his car, and acted in violation of this statute that I’ve already read to you, and he did so without justification and without any personal basis for really fearing that his life was in danger and that therefore under the law he had no right to shoot.

Trial transcript 3-3-93 at 55-56.

Now, ladies and gentlemen this is not a negligence case. This is not one of those things where Monty Birch may have acted in a way that you didn’t like or he acted a little bit irresponsibly because he pulled a gun or he went down with a gun in the first place where you probably would have run up in your house, called the police, and hid under the bed or some such thing.

Trial transcript 3-3-93 at 56.

The first question I said you have to answer is, does somebody have a right to go investigate what their property is and where it is and what’s happening to it? You bet your life that they do under the law. Does somebody have a right to go down with a weapon that they have a license for? You bet your life that they do. Do they have a right to use it if they are personally in danger under the circumstances in their subjective belief? And the answer is, you bet your life that they do.

Trial transcript 3-3-93 at 70-71.

The trial court, denying appellant’s post-trial motions, reasoned that the use of force in protection of property charge was warranted based on the evidence that the victim, Christian Davis, was in the process of breaking into the appellant’s car, when the defendant left his home to investigate. The court noted that “the [defendant, as indicated by counsel, may not have affirmatively posited defense of property in the case, however the facts give rise to its consideration and justify the instruction for the jury’s deliberation.” (Trial court op. 8-17-93 at 8).

In support of their contentions, both appellant and the Commonwealth cite Commonwealth v. Young, 271 Pa.Super. 59, 412 A.2d 159 (1979). There the defendant was found guilty of voluntary manslaughter and a violation of the Uniform Firearms Act. The issue was whether the trial court committed reversible error by refusing to give a written instruction requested by defendant which would have advised the jury that in exercising his right to eject the victim, the defendant was “without fault in provoking the controversy within the meaning of the first element of self-defense.” The Defendant testified that he owned a lot which was posted with a “No trespassing” sign. He received a telephone call informing him that someone was on the lot. Defendant went to the property and found a man and a woman in a parked car. He asked several times for them to leave but the man refused and a fight ensued. Defendant testified that he caught the man on his property on prior occasions, once stealing gas and once threatening to kill defendant for refusing to provide a towing device. On this night defendant stated the man threatened to take his prosthetic leg and beat him with it. According to defendant, when they began scuffling, he was hit on the head knocking him backward and off balance; because he feared that the man would incapacitate him by removing his prosthesis, he pulled a gun and fired at his protagonist, killing the victim.

In Young, the trial judge refused the defendant’s written request and an oral request to instruct the jury that “if you find that the defendant was a licensee of the premises, then you must find that he had a right to eject the trespasser and that he would therefore be without fault in provoking the confrontation within the meaning of the first element of self-defense.” Id. 271 Pa.Super. 59, 412 A.2d at 162. On appeal, we noted that the trial court adequately instructed the jury on the defense of self-defense and that in order for one to take advantage of that defense a person could not provoke the incident. The court also instructed the jury regarding the right of a licensee to use reasonable, non-lethal force to terminate a trespass. However, we determined that immediately following the instruction on non-lethal force to terminate a trespass the trial court erred by remarking: “Now this has nothing to do, of course, with protection of self. This is on protection of property. Otherwise, the use of deadly force in the protection of property would be justified.”

We reasoned that the trial court’s last statement produced incongruity between the sections of the Code governing self-defense and use of force to protect property, sections 505 and 507 respectively. We elaborated that under § 507, a licensee may exercise reasonable force against a trespasser, however, the use of such force would make the licensee a provoker which would deprive him of the defense of self-defense under the former section. For guidance on the relationship between self-defense and defense of property, we referred to a text on criminal law which provides:

Of course, if the defender’s reasonable force in protection of his property is met with an attack upon his person, he may then respond by defending himself and then may be entitled to use force.
W. LaFave and A. Scott, Handbook on Criminal Law, § 55, at 400 (1972) (emphasis added and footnote omitted).

Young, 412 A.2d 159, 162. We concluded that the trial court committed reversible error by failing to charge that defendant’s initial use of reasonable force, if it met the elements on the use of force to protect property under § 507, would not automatically make the defendant a “provoker” for purposes of the defense of self-defense.

In the instant case, while we agree that it was appropriate for the trial court to instruct the jury on the use of force for the protection of property since defense counsel argued that appellant was entitled to investigate the possible threat to his property, we must nevertheless reverse the judgment of sentence and remand for a new trial based upon our analysis in Young, supra. The trial court is required to instruct the jury in order to clarify the issues so that they understand the questions involved. The court must also instruct on the law applicable to the issues which arise out of the evidence and the arguments presented. See Commonwealth v. Mayfield, (en banc), 401 Pa.Super. 560, 585 A.2d 1069 (1991). However, the trial court here failed to reconcile the jury instructions on self-defense and the use of force in protection of property. As we stated in Young, even though a property owner may be permitted to use reasonable, nonlethal force in the protection of property, the use of such, force does not then deprive that person of the defense of self-defense. Here the trial court’s failure to provide the jury with an instruction harmonizing the defense of use of force to protect property and self-defense was reversible error.

The judgment of sentence is reversed and the case remanded for a new trial.


text:
    644 A.2d 763
    COMMONWEALTH of Pennsylvania v. Nathaniel HUNTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1994.
    Filed July 7, 1994.
    Jeffrey W. Whiteko, Asst. Public Defender, Uniontown, for appellant.
    Ralph C. Warman, Dist. Atty., Uniontown, for Com., appellee.

      Before McEWEN, DEL SOLE and BROSKY, JJ.
   DEL SOLE, Judge.

This is an appeal from the Judgment of Sentence imposed following Appellant’s conviction for Aggravated Assault, Simple Assault, and Reckless Endangerment of Another Person. The charges arose from an incident in which Appellant was found to have fired several gunshots from a car into the home of Kent Ramsey. Appellant alleges two errors by the trial court. First, Appellant alleges that the verdict was against the weight of the evidence in that the Commonwealth failed to show that it was the appellant who fired the shots. Secondly, Appellant argues that the Commonwealth’s evidence was insufficient to establish the requisite intent on the part of the Appellant to cause serious bodily injury. We find no merit in either of the Appellant’s contentions and affirm the trial court’s judgement.

The essential facts are as follows. On September 6, 1992, Charles Ford and Brenda Stewart were guests in the home of Kent Ramsey. At approximately 11:00 P.M., Darlene Ramsey, Kent Ramsey’s mother, knocked on the front door while her daughter knocked on the back door in an attempt to reach Kent. Neither of the two were able to get a response from any of the three people inside.. Mrs. Ramsey and her daughter then left. After turning her car around, Mrs. Ramsey spotted Nathaniél 'Hunter, whom she knew “since he was little”, in the front passenger seat of what she recognized as the Hunter family car. Once the Hunter car passed, Mrs. Ramsey turned and was travelling in the opposite direction. While stopped at a traffic light, Mrs. Ramsey spotted Hunter, via her rear view mirror, as he leaned out of the passenger window and fired several shots at her son’s house. The car fled the scene.

Ford was sitting in the living room, and Stewart was lying on the floor, when “things” began flying through the front door and wall. Kent Ramsey heard the noise, came downstairs and saw Ford and Stewart attempting to take cover on the floor. Plaster covered the floor and furniture, and bullet holes were discovered in the front door. A bullet was also found on the floor in the next room.

Appellant’s first contention, that the identification by Mrs. Ramsey is against the weight of the evidence, is unfounded. As the trial court correctly stated, Appellant’s assertion is one of the credibility of the witness, and questions of witness credibility are to be resolved by the trier of fact. The jury was free to believe all, part, or none of the evidence and testimony presented to it. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). Appellant took full advantage of his opportunity to discredit the witness and present his version of the facts to the jury. The jury simply chose not to believe him.

Secondly, Appellant contends that the Commonwealth failed to show the requisite intent necessary to support an inference that he intended to cause serious bodily injury. Therefore, Appellant argues that he cannot be convicted on the Aggravated Assault charge. We disagree. Aggravated assault does not require proof that serious bodily injury was inflicted but only that an attempt was made to cause such injury. See 18 PaC.S. § 2702(a)(1). Aggravated Assault: “A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another ...” An intent to cause serious bodily injury may be shown by the circumstances surrounding the incident. Commonwealth v. Elrod, 392 Pa.Super. 274, 572 A.2d 1229 (1990) citing Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978).

A similar argument was raised by the appellant in Commonwealth v. Eaddy, 419 Pa.Super. 48, 614 A.2d 1203 (1992). In Eaddy, appellant knocked on the door and requested that Arlene Briggs come to the door. She refused, looked out the window and observed appellant. Instead of going to the door, she went to the rear of the house. Appellant fired two gunshots through the window. One of them struck another person who was inside the house. Because the shade was drawn on the window, Appellant argued that he should not be convicted of aggravated assault because the evidence did not demonstrate that he possessed the specific intent as to a specific person. We determined that because Appellant fired gunshots into a residence that he knew to be occupied, his indifference as to who might be shot did not lessen the seriousness of the act. Id. at 51. The intent to do serious bodily harm can be inferred in the act of discharging a firearm into an occupied home. Because there exists the probability that a person in the home could be harmed if someone were to shoot into the home, an attempt to cause serious bodily harm to such a person can be inferred.

Similar reasoning was applied in the case of Commonwealth v. Kamenar, 358 Pa.Super. 62, 516 A.2d 770 (1986) although the crime at issue was reckless endangerment and not aggravated assault. We refused to find that appellant in that case possessed the requisite intent to place any person in danger of serious bodily harm because he discharged the weapon onto a hillside which arose behind and above the home. We agreed with appellant’s argument that no person was placed in danger because it “was not a place where any dwelling, other structure, or any other person was known to be located.” Id., 358 Pa.Super. 66, 516 A.2d at 771. Because in the instant case, the structure was a place where people lived, the evidence is sufficient to demonstrate the intent required under the Aggravated Assault statute. Likewise, in Commonwealth v. Reardon, 297 Pa.Super. 193, 443 A.2d 792 (1981), although the appellant’s challenge to the sufficiency of the evidence was based on police identification, we found that appellant’s drive-by shooting into a house in which no one was injured, was sufficient to support his conviction for aggravated assault.

Because the conviction on aggravated assault charges is not against the weight of the evidence, and because Appellant’s intent to do serious bodily injury was reasonably inferred by the trial court, the trial court’s judgement of sentence is affirmed.

Judgment affirmed.


author: DEL SOLE, Judge. .

text:
    644 A.2d 765
    COMMONWEALTH of Pennsylvania v. Dennis MEEKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1994.
    Filed July 7, 1994.
    Maryann F. Swift, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge and DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge. .

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County.

On February 21, 1987, in an unprovoked attack, Dennis Meekins stabbed George Peebles twice in the back with a knife. Meekins was convicted by a jury of Aggravated Assault with a deadly weapon, (18 Pa.C.S.A. § 2702(a)(4), Recklessly Endangering Another Person, (18 Pa.C.S.A. § 2705) and Possession of an Instrument of Crime (18 Pa.C.S.A. § 907). He was sentenced to five to ten years for aggravated assault and a consecutive, term of one to five years for possessing an instrument of crime. The sentence for recklessly endangering another person was merged with the sentence for assault.

Appellant claims that the sentencing court erred by refusing to merge the crimes of Aggravated Assault committed under subsection 2702(a)(4) and Possession Of An Instrument Of Crime. The question whether these crimes merge for sentencing purposes is one of first impression for this court.

The Pennsylvania Supreme Court set forth the test for determining whether convictions merge for sentencing purposes in Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989). The Court held that only lesser included offenses merge for the purpose of sentencing. A lesser included offense is one composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense. Commonwealth v. Jones, 427 Pa.Super. 345, 348, 629 A.2d 133, 136 (1993).

In Commonwealth v. Fuller, 396 Pa.Super. 605, 614, 579 A.2d 879, 884 (1990), this court considered the definition of “lesser included offense” and held that when it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of a lesser degree, the latter is, with respect to the former, a lesser included offense. Moreover, in Commonwealth v. Yates, 386 Pa.Super. 282, 287, 562 A.2d 908, 911 (1989), this court stated that the elements of the lesser offense must be identical and capable of being wholly subsumed within the elements of the greater offense.

At first blush it appears that the issue of merging aggravated assault and possession of an instrument of crime for sentencing purposes has already been decided by this court. In Commonwealth v. Brown, 415 Pa.Super. 534, 609 A.2d 1352 (1992), defendant was convicted of aggravated assault and possession of an instrument of crime and subsequently appealed. This court reversed and remanded for resentencing. At resentencing, the trial court applied a deadly weapon enhancement to the aggravated assault conviction and merged the sentence for possession of an instrument of crime with that imposed for the aggravated assault. Thereafter, the Commonwealth appealed alleging that the trial court erroneously merged the two crimes.

The majority in Brown held that possession of an instrument of crime was not a lesser included offense of aggravated assault, even with a deadly weapon enhancement. Brown, 415 Pa.Super. at 537, 609 A.2d at 1355. The court stated that a deadly weapon enhancement was not a separate sentence, nor was it another element of the crime to which it attached. Brown, 415 Pa.Super. at 538, 609 A.2d at 1357.

This case, although similar to Brown is factually distinguishable. Unlike defendant Bro'wn, who was convicted of aggravated assault but at sentencing had a deadly weapon enhancement applied, Appellant was convicted of aggravated assault with a deadly weapon. Appellant’s factual scenario poses a unique question regarding the characterization of a knife as both a deadly weapon and an instrument of crime.

To be guilty of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(1), (4), one must “attempt to cause or intentionally or knowingly cause bodily injury to another with a deadly weapon”. A deadly weapon is defined as “any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury”. 18 Pa.C.S. § 2301.

Possession of an instrument of crime is defined as possessing “anything specially made or specially adapted for criminal use; or anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.” 18 Pa.C.S. § 907. According to the holding in Commonwealth v. Rodriquez, 316 Pa.Super. 203, 214, 462 A.2d 1310, 1316 (1983), “the Legislature has established two alternative criteria for determining whether an object is an instrument of crime: the object must either be one which is regularly used by criminals or it must be one which is physically altered in such a fashion as to demonstrate a criminal objective.”

Contrasting the above elements of aggravated assault and possession of an instrument of crime, it is apparent that the greater offense is not totally dependant on the elements of the lesser offense. Therefore, the two crimes cannot merge for sentencing purposes.

Aggravated assault under (a)(4) hinges on the possession of a weapon capable of producing death or serious bodily injury. Possession of an instrument of crime requires possession of something commonly used in the commission of a crime or specially adapted for criminal use. Although deceptively similar, the elements of the two crimes are not “identical to and capable of being wholly subsumed” by one another as required by this court and the state Supreme Court. See Common wealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989); Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989); Commonwealth v. Lopez, 426 Pa.Super. 625, 627 A.2d 1229 (1993).

By applying the appropriate test for merger and the elements of each crime involved, it is apparent that possession of an instrument of crime is not always a lesser included offense of an aggravated assault committed with a deadly weapon. Stated differently, it is possible to commit aggravated assault under (a)(4) without possessing an instrument of crime. For example, in the hypothetical situation in which an individual picks up a brick during an altercation and repeatedly strikes his opponent with it, he has committed aggravated assault with a deadly weapon. The brick, although used as a weapon and capable of producing death or serious bodily injury (thus qualifying as a deadly weapon), is not an instrument of crime because it was not specifically made or specially adapted for criminal use. See Commonwealth v. Durrant, 501 Pa. 147, 460 A.2d 732 (1983) (a pool cue is not an instrument of crime in a third degree murder case); Commonwealth v. Cavanuagh, 278 Pa.Super. 542, 420 A.2d 674 (1980) (a tire iron is not an instrument of crime in an assault case); Commonwealth v. McNeil, 388 Pa.Super. 108, 564 A.2d 1289 (1989) (a tire iron is an instrument of crime in a burglary case).

Thus, because it is possible to commit aggravated assault pursuant to Pa.C.S. § 2702(a)(4) with a deadly weapon without necessarily possessing an instrument of crime, the two crimes cannot merge for sentencing purposes without violating the merger rule set forth by the Supreme Court.

It is for these reasons the Judgment of Sentence is affirmed.

      . Procedurally, this case is before us on an appeal from a Judgment of Sentence imposed on July 25, 1988. Appellant’s counsel filed a timely appeal which was later dismissed when Appellant’s counsel failed to file a brief. On November 18, 1991, Appellant was granted the right to appeal nunc pro tunc. On April 1, 1992, Appellant’s counsel filed an Ander’s brief seeking to withdraw. On July 9, 1992, Appellant filed a pro se supplemental brief alleging the issue before this court. On December 9, 1993, this court denied counsel’s request to withdraw and directed counsel to file a brief on Appellant’s behalf, specifically addressing the merger issue raised by Appellant, 434 Pa.Super. 692, 641 A.2d 1226. Because the issues raised in the Ander’s brief are in fact meritless, in this opinion we address the sole issue of merger.

      . In a footnote the court acknowledged that the defendant in Brown was convicted of 18 Pa.C.S. § 2702(a)(1), aggravated assault, not § 2702(a)(4), aggravated assault with a deadly weapon. Brown, 415 Pa.Super. 534, 542 n. 7, 609 A.2d 1352, 1340 n. 7 (1992).


author: JOHNSON, Judge:

text:
    644 A.2d 767
    R.A.R. and M.E.R. v. T.M. and R.E.R. Appeal of T.M.
    Superior Court of Pennsylvania.
    Argued April 27, 1994.
    Filed July 8, 1994.

      Daniel H. Shertzer, Jr., Lancaster, for appellant.
    Andrew H. Appel, Lancaster, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

This is a dispute over the primary physical custody of D.E.R. (the child), born July 26, 1988. For purposes of this appeal, the competing interests are those of the paternal grandfather, R.A.R. (Grandfather) and the natural mother, T.M. (Mother).

Mother appeals the custody order entered October 28,1993, in which the trial court awarded shared legal custody of the child to Grandfather, Mother, and R.E.R. (Father). The trial court also awarded primary physical custody to Grandfather, and awarded partial physical custody to Mother. We affirm.

The pertinent procedural history is as follows. This matter began on November 6, 1989, when the paternal grandparents filed a complaint seeking custody of the child. On January 23, 1990, the trial court entered an order awarding legal and primary physical custody of the child to the paternal grandparents. In addition, the trial court awarded Mother and Father partial physical custody and/or visitation.

In response to various petitions for contempt and for modification, the trial court entered several additional orders amending the original custody order. On July 10, 1992, the trial court entered an order awarding shared legal custody of the child to his paternal grandparents and his parents, primary physical custody to his paternal grandparents, and partial physical custody to Mother. Mother appealed to this Court. Subsequently, the child’s paternal grandmother died. By Judgment Order filed March 26, 1993, we vacated the trial court’s July 10, 1992 order and remanded the case to the Court of Common Pleas of Lancaster County for further proceedings in light of the death of the child’s grandmother. In addition, we recommended that the trial court consider the following principles of custody law: (1) In a custody dispute between a child’s natural parent and a third party, such as a grandparent, the parent has a prima facie right to custody unless the third party demonstrates “convincing reasons” why the child’s best interests will be served by awarding custody to the non-parent. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); and, (2) In the absence of compelling reasons, siblings should be raised together. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980).

On remand, after considering these and other principles of custody law, the trial court entered an order awarding shared legal custody of the child to Grandfather, Mother, and Father. The trial court also awarded primary physical custody of the child to Grandfather, while awarding Mother partial physical custody. Mother now appeals.

Preliminarily, we note that our paramount concern in child custody cases is the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). It is well-settled that those interests include the physical, intellectual, moral and spiritual well-being of the child. Clapper v. Clapper, 396 Pa.Super. 49, 578 A.2d 17 (1990).

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

McMillen, 529 Pa. at 202, 602 A.2d at 847 (citations omitted). With these standards in mind, we will address Mother’s claim on appeal.

Mother asks “has such necessity been shown as to deny [her] custody and to separate the child from his siblings?” Appellant’s Brief at 6. In compliance with our Judgment Order filed March 26, 1993, the trial court considered the principles that convincing reasons must be shown before awarding custody to a non-parent, Ellerbe, supra, and that siblings should be raised together absent compelling reasons, Albright, supra. The trial court concluded that compelling circumstances require that the child remain with Grandfather. Specifically, the trial court found that Mother had been unwilling and unable to care for the child in his early years, and that it would be destructive to remove him from a stable environment where Grandfather has provided him with constant, consistent care.

Nonetheless, Mother disputes the compelling reasons on which the trial court relied. She argues that there is no evidence that she was either unwilling or unable to care for the child, and that the trial court placed undue emphasis on the fact that the child has been cared for by his grandparents for the last five years.

After reviewing the record, we hold that there is sufficient evidence to support the trial court’s finding that Mother was unwilling or unable to care for the child. Mother admitted that the paternal grandparents provided most of the food and clothing for the child since his birth. N.T., June 10, 1992, at 28-29. From birth, his grandparents spent the weekends visiting him at his parents’ trailer. Id. at 51. When the child was a few months old, Mother obtained a job and began leaving the child with his grandparents during the week. Id. at 52. The child would spend the week at his grandparents’ home and the weekend at his parents’ trailer. Id. Frequently, Mother did not call to check on the child. Id. Further, from the end of August 1992 through January 1993, Mother neither exercised her partial custody rights nor contacted the child. N.T., August 16, 1993, at 22-23. Mother testified that she suspended her exercise of partial custody because it was too stressful for the child who feared that his grandmother would die when he was visiting his mother. Id. at 65. The trial court found, and we agree, that Mother could have contacted the child during this period.

Finally, Mother asserts that the trial court placed too much weight on the time which the child has spent with Grandfather. She notes that the cases cited in support of the trial court’s position that the court must consider the effect upon the child of removal from a known physical environment involved disputes between parents, not a parent and a third party. Although the cases cited involved disputes between parents, the trial court recognized, as do we, that changes in custody can seriously disrupt a child’s life. The role of primary caretaker is a substantial factor which the trial judge must weigh in adjudicating a custody matter where the child is of tender years. Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982). After thoroughly reviewing the trial court’s analysis, we are unable to agree with Mother’s assertion that the court placed too much weight on the time the child has spent with Grandfather.

For these reasons, we cannot find that the trial court committed a gross abuse of discretion in concluding that compelling circumstances require that Grandfather have primary physical custody of the child. Accordingly, we affirm the trial court order awarding primary physical custody of the child to Grandfather.

Order affirmed.

McEWEN, J. concurs in the result.


author: ROWLEY, President Judge:

text:
    644 A.2d 770
    Scott T. BARNES v. Stephen A. McKELLAR, Frances A. McKellar, and Keith McKellar, Appellants. Scott T. BARNES, Appellant v. Stephen McKELLAR, Frances A. McKellar, and Keith McKellar.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1994.
    Filed July 8, 1994.

      Clinton L. Johnson, Chester, for McKellars.
    Robert M. Firkser, Media, for Barnes.
    Before ROWLEY, President Judge, and SAYLOR and BROSKY, JJ.
   ROWLEY, President Judge:

Scott T. Barnes, plaintiff in the trial court and appellee/eross-appellant in the appeals before us, acquired real property at 815 West Seventh Street, Chester, Pennsylvania, through the Veterans Administration in the belief that he thereby became the record owner of the property. Barnes held this belief in good faith, but also in error. In fact, record title remained with the Veterans Administration. This fact proved fatal to an agreement of sale subsequently entered into between Barnes and Stephen McKellar, defendant and appellant/cross-appellee. Litigation ensued, resulting in a judgment entered December 10, 1992, from which both parties have timely appealed. For the reasons set forth below, we affirm the judgment.

We begin by summarizing the facts essential to an understanding of both appeals. By agreement dated June 17, 1987, Barnes leased the property at issue to Frances A. McKellar and Keith D. McKellar, defendants and appellants/cross-appellees. On July 27,1989, Barnes and Stephen McKellar entered into an agreement for the sale of the property. On the date set for settlement, August 18, 1989, Barnes was unable to convey record title because record title remained with the Veterans Administration.

In an action filed on or about July 26,1990, at No. 90-11301, Stephen, Frances, and Keith McKellar alleged that Barnes had breached the agreement of sale by failing to convey clear title and a proper fee simple deed at the time of settlement. The McKellars sought specific performance and consequential damages.

On July 31, 1990, at No. 90-11494, Barnes filed a complaint in ejectment against the McKellars. He alleged that all of the McKellars resided at 815 West Seventh Street and that the lessees, Frances and Keith, had failed to pay rent beginning in July 1989 and had failed to vacate the premises after receiving written notice that their lease was being terminated. He sought the ejectment of the McKellars, recovery of possession of the premises, and damages, including unpaid rent. This was followed, on January 10, 1991, by an amended complaint in which Barnes expressed the belief that the McKellars continued to reside on the premises.

In response, the McKellars filed an answer, new matter, and counterclaim. They asserted in their answer, inter alia, that Frances McKellar and Keith McKellar vacated the premises on or before August 15, 1989, and that Stephen McKellar now resided there, having been given permission to do so by the Lesniak and Coulston real estate agency, Barnes’ agent, as a result of Barnes’ failure to go forward with the settlement.

The counterclaim, captioned “Stephen A. McKellar vs. Scott T. Barnes,” was essentially a restatement of the complaint filed by the McKellars in the action at No. 90-11301. Barnes responded with an answer and new matter in which he asserted the defenses of pendency of a prior action, collateral estoppel, statute of frauds, waiver and consent, failure of consideration, and laches.

The two actions arising out of the parties’ dispute were not consolidated. The McKellars’ action at No. 90-11301 went to arbitration on July 8, 1991, and the result was an award of damages to Barnes for rents due in the amount of $8,250.00, along with the ejectment of Stephen McKellar from the premises. No appeal was filed, and judgment was entered on the award.

Barnes’ action at No. 90-11494 was tried before the Honorable George Koudelis sitting without a jury. At the beginning of trial, counsel for Barnes moved to amend Barnes’ answer to Stephen McKellar’s counterclaim to raise the affirmative defense that the judgment entered on the arbitration award in the earlier action was res judicata. The trial court denied the motion.

In an order entered March 20, 1992, the trial court, inter alia, awarded Barnes the sum of $8,250.00 as unpaid rent from Stephen McKellar; awarded Stephen McKellar the sum of $2,125.00, representing his damages of $625.00 and his down payment of $1,500.00, from Barnes; and directed that McKellar be ejected from the premises. Both parties filed post-verdict motions, which were denied. Judgment was entered on December 10, 1992, and these timely appeals followed.

Stephen McKellar’s appeal is docketed in this Court at No. 50 Philadelphia 1993; Barnes’ cross-appeal is docketed at No. 195 Philadelphia 1993. Because Barnes asserts, inter alia, that the judgment entered in the arbitration proceeding at No. 90-11301 controls the outcome of the present case, we turn first to the issues raised in his cross-appeal. In reviewing the issues presented to us, we are mindful that the findings of a trial judge in a non-jury case will be given the same weight and effect as a jury verdict and will not be reversed absent an abuse of discretion or a finding of a lack of evidentiary support. Lessner v. Rubinson, 382 Pa.Super. 306, 308, 555 A.2d 193,194 (1989) (en banc), aff'd, 527 Pa. 393, 592 A.2d 678 (1991). Our role as a reviewing court is to determine whether the trial court’s findings are supported by competent evidence and whether the trial court committed an error of law. Id.

I. BARNES’ CROSS-APPEAL AT NO. 195 PHILADELPHIA 1993

Barnes raises the following issues:

1) Did the trial court err in failing to find, based on the judgment entered on the arbitration award in the action at No. 90-11301, that McKellar’s counterclaim in the present action was barred by res judicata or collateral estoppel?

2) Did the trial court err in denying Barnes’ motion to amend his reply to McKellar’s counterclaim to allege res judicata?

3) Did the trial court err in finding that Barnes was in breach of the agreement of sale and liable to McKellar for damages as well as for the return of McKellar’s down payment?

As to the first of these issues, the trial court held that because McKellar sought specific performance of an agreement for the sale of real property, the arbitrators were without jurisdiction to adjudicate his claim. The court based its holding on the language of the governing statute, § 7361 of the Judicial Code, which states in pertinent part that no matter shall be referred to compulsory arbitration “which involves title to real property[.]” 42 Pa.C.S. § 7361(b)(1). The lack of subject matter jurisdiction rendered the arbitration award void, the court explained, and therefore it was not res judicata in the present case, nor could it serve as the basis for collateral estoppel.

We agree. “When a court takes action beyond the power conferred on it by law (its jurisdiction), its action is a nullity....” Dover v. Philadelphia Housing Authority, 318 Pa.Super. 460, 469, 465 A.2d 644, 649 (1983). Accord DeCoatsworth v. Jones, 414 Pa.Super. 589, 607 A.2d 1094 (1992), rev’d in part on other grounds, 536 Pa. 414, 639 A.2d 792 (1994); Commonwealth v. Miller, 306 Pa.Super. 468, 452 A.2d 820 (1982). In the case before us, the arbitration panel took action in a matter that was specifically excluded by statute from its jurisdiction. Barnes maintains that “[e]ven if the issue of specific performance is not subject to compulsory arbitration, the issue of monetary damages certainly is” (Brief for Barnes as Appellant, at 10). Therefore, he argues, the decision of the arbitrators in the earlier action, which did not include an award of damages to McKellar, serves to preclude the trial court from awarding damages to McKellar in the present action. Barnes’ argument gives no effect, however, to the fact that the matter at issue in the action at No. 90-11301 clearly “involve[d] title to real property,” a fact that is not affected by the arbitrators’ refusal to grant the remedy of specific performance. “Where matters of jurisdiction are concerned, the courts must enforce the letter of the law.” Commonwealth v. Ryan, 459 Pa. 148, 157, 327 A.2d 351, 355 (1974).

Barnes also contends that the trial court had no jurisdiction to void sua sponte a decision in a case not before it. He argues further that McKellar cannot now “ignore [the arbitration] proceeding as if it had not occurred” (Brief for Barnes as Appellant, at 10), as he did not object to the assignment of the case to arbitration, did not seek to consolidate the two actions, and did not appeal the arbitration award.

Our courts have held, however, that an objection to subject matter jurisdiction cannot be lost by estoppel, consent, or waiver, Harcourt v. General Accident Insurance Company, 419 Pa.Super. 155, 161, 615 A.2d 71, 75 (1992), appeal denied, 534 Pa. 648, 627 A.2d 179 (1993), but rather that “a void decree can be attacked at any time, in any court,” Brokans v. Melnick, 391 Pa.Super. 21, 27, 569 A.2d 1373, 1376 (1989), appeal denied, 526 Pa. 626, 584 A.2d 310 (1990).

“[I]t is never too late to attack a judgment or decree for want of jurisdiction. That question is always open.” In Re Simpson’s Estate, 253 Pa. 217, 225, 98 A. 35, 38 (1916). “Such a judgment is entitled to no authority or respect, and is subject to impeachment in collateral proceedings at any time by one whose rights it purports to affect.” Moskowitz’s Registration Case, 329 Pa. 183, 190, 196 A. 498, 502 (1938). “The want of jurisdiction over the subject matter may be questioned at any time. It may be questioned either in the trial court, before or after judgment, or for the first time in an appellate court, and it is fatal at any stage of the proceedings, even when collaterally involved.... ” In Re Patterson’s Estate, 341 Pa. 177, 180, 19 A.2d 165, 166 (1941). Moreover, [it] is “well settled that a judgment or decree rendered by a court which lacks jurisdiction of the subject matter or of the person is null and void and is subject to attack by the parties in the same court or may be collaterally attacked at any time.” Com. ex rel. Howard v. Howard, 138 Pa.Super. 505, 508, 10 A.2d 779, 781 (1933) [(1940)].

DeCoatsworth v. Jones, 414 Pa.Super. at 604, 607 A.2d at 1101 (emphasis deleted). But see, e.g., Commonwealth ex rel. Cook v. Cook, 303 Pa.Super. 61, 449 A.2d 577 (1982) (issue of subject matter jurisdiction is res judicata even though not litigated or wholly uncontested in first instance).

Accordingly, we conclude that the trial court’s decision concerning the arbitration award was not only correct, but was a decision that the court was fully empowered to make. As the court in fact considered Barnes’ asserted defense of res judicata but found it to be meritless, there is no need to consider further Barnes’ claim that the court erred in refusing to allow him to amend his reply to McKellar’s counterclaim by adding such a defense.

Finally, Barnes contends that the trial court erred in finding that he breached the agreement of sale. The trial court based its finding on paragraph 7(a) of the agreement, which states in pertinent part that “[t]he premises are to be conveyed free and clear of all liens, encumbrances, and easements ...; the title ... shall be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates.” The court concluded that Barnes’ inability to convey such title on the scheduled settlement date constituted a breach of the agreement.

Barnes offers two arguments to support his contention that he did not breach the agreement:

1) “The Agreement of Sale contains a provision [paragraph 5(d) ] that Barnes need not perform Use and Occupancy repairs in excess of five hundred dollars ($500.00), and, accordingly, once the repairs exceeded that amount, unless McKellar performed the repairs (which he did not), Barnes was under no further obligation” (Brief for Barnes as Appellant, at 10; citations omitted).

2) Paragraph 7(b) of the agreement of sale gives the buyer certain options in the event that the seller is unable to convey good and marketable title, but does not provide that the seller breaches the agreement in the event he is unable to convey such title.

The first provision at issue, paragraph 5(d), reads as follows:

The City of Chester Building Official shall inspect the real estate[,] and repairs, if any, in order that said real estate complies with the BOCA Code of the City of Chester, shall be made by and at the expense of the Seller and the Seller shall obtain a use and occupancy permit at his expense from the City of Chester[,] cost not to exceed $500.00.

Barnes’ argument, as we understand it, is that because the cost of repairs needed to obtain a use and occupancy permit exceeded his obligation under paragraph 5(d) and McKellar failed to perform the needed repairs, Barnes was under no further obligation to comply with the terms of the agreement.

The trial court acknowledges but does not specifically address this argument. We note that paragraph 5(d) does hot specify the consequence if the costs of repairs necessary for a use and occupancy permit exceed $500.00. It is settled law that ambiguous terms of a contract are construed against the drafter, Second Federal Savings and Loan Association v. Brennan, 409 Pa.Super. 581, 586, 598 A.2d 997, 999 (1991), in this case Barnes, and we decline to read into paragraph 5(d) a provision relieving Barnes of any further obligation in the present situation. Accordingly, this argument is without merit.

Barnes also contends that “the seller’s inability to convey clear title enables the purchaser ... to void the transaction or to accept such title as the seller could convey, but does not constitute a breach or entitle the purchaser, to monetary damages for breach” (Brief for Barnes as Appellant, at 6). Barnes bases this argument on paragraph 7(b) of the agreement of sale, which reads as follows:

In the event the Seller is unable to give a good and marketable title and such as will be insured by a reputable Title Company, ... Buyer shall have the option of taking such title as the Seller can give without abatement of price or of being repaid all monies paid by Buyer to the Seller on account of the purchase price and the Seller will reimburse the Buyer for any costs incurred by the Buyer for those items specified in paragraph 7(c) items (1), (2), (3), and in paragraph 7(d); and in the latter event there shall be no further liability or obligation on either of the parties hereto and this agreement shall become NULL AND VOID and all copies will be returned to Seller’s agent for cancellation.

The only costs for which the seller is required to reimburse the buyer under this paragraph are the following: premiums for mechanics’ lien insurance and/or title search [paragraph 7(c)(1) ], premiums for flood and/or fire insurance [paragraph 7(c)(2) ], appraisal fees and charges paid in advance to mortgagee [paragraph 7(c)(3) ], and survey expenses [paragraph 7(d) ]. In his counterclaim McKellar identified his consequential damages as “costs and fees connected with the scheduled settlement” in the amount of $3,152.00. “Buyer’s normal settlement costs and accruals,” listed in paragraph 7(c)(4) as among the costs to be paid by the buyer, are not included in paragraph 7(b) as costs which the buyer can recover from the seller. Although the parties do not explain the nature of the $625.00 in damages eventually awarded to McKellar, we assume that the amount refers to settlement costs and that Barnes seeks to limit his obligation to the terms of paragraph 7(b) in order to avoid reimbursing McKellar for such costs.

In its discussion of McKellar’s claim for specific performance, to be discussed in Section II, the trial court stated that “Barnes was unable to convey any title at settlement and therefore, pursuant to paragraph 7(b), the agreement became null and void, subject only to reimbursement to the Buyer for downpayment money and costs incurred” (Trial Court Opinion at 10). If the “costs incurred” are settlement costs, however, the trial court erred in stating that they could be recovered under paragraph 7(b).

However, we may affirm the trial court if its decision is correct for any reason, and we do so here. Paragraph 7(b) applies to situations in which the buyer has an option: 1) to take such title as the seller can give, or 2) to be reimbursed for the down payment and specified costs. In the present case, the buyer (McKellar) had no option because, as will be discussed, the seller (Barnes) could not convey any title. We conclude, therefore, that the provisions of paragraph 7(b) do not control the obligations of the parties in this instance.

A “breach of contract is a non-performance of any contractual duty of immediate performance.” Camenisch v. Allen, 158 Pa.Super. 174, 177, 44 A.2d 309, 310 (1945) (quoting Restatement of Contracts § 312). In the present case, the agreement of sale obligated Barnes to convey good and marketable title to the property, and time was of the essence. Accordingly, Barnes’ failure to convey good and marketable title on the date of settlement constitutes a breach of the agreement, and paragraph 7(b) does not bar recovery of the damages awarded to McKellar.

II. McKELLAR’S APPEAL AT NO. 50 PHILADELPHIA 1993

Three of the issues raised by Stephen McKellar rest on essentially the same argument, namely, that Barnes could have conveyed, and therefore should have been ordered to convey, title to the property to McKellar. Although the trial court noted at one point that Barnes may have had equitable title to the property in question, the court went on to conclude as follows:

It is clear from the facts, that although Barnes was in breach of this contract, the Court was not in a position to order specific performance. Barnes, not being in possession of any title at settlement, was not in the position to convey any title to this property.

Trial Court Opinion at 9. The trial court added that it could not order an impossibility. Similarly, with regard to McKellar’s reliance on paragraph 7(b), the trial court found that there was no title which Barnes was able to convey.

McKellar argues as follows:

I. Did the trial court err in not directing specific performance where that court determined that the seller breached the agreement of sale with the appellant by appellee’s failure to convey good and marketable title to the appellant?]
II. Did the trial court err in not enforcing the provisions of paragraph seven (7) entitled “Title and Costs” of the agreement of sale which specifically provides that “in the event the seller is unable to give a good and marketable title and such [as] will be insured by a reputable title company, buyer shall have the option of taking such title as the seller can give[”?]
IV. Did the trial court err in determining that although appellee is in breach of the agreement of sale, as not being the record owner of the real estate in question, it is impossible for him to convey title to the subject premises[?]

Brief for McKellar as Appellant, at 3-4.

A decree of specific performance is not a matter of right, but of grace. Mrahunec v. Fausti, 385 Pa. 64, 68, 121 A.2d 878, 880 (1956); Wagner v. Estate of Rummel, 391 Pa.Super. 555, 561, 571 A.2d 1055, 1058 (1990), appeal denied, 527 Pa. 588, 588 A.2d 510 (1991). Such a decree will only be granted if the plaintiff is clearly entitled to such relief, there is no adequate remedy at law, and the chancellor believes that justice requires such a decree. Mrahunec v. Fausti, supra; Wagner v. Estate of Rummel, supra. “[W]here plaintiff has the burden of proving certain facts, he cannot recover if his evidence is so uncertain or inadequate or equivocal or ambiguous or contradictory as to make findings or legitimate inferences therefrom a mere conjecture.” Mrahunec v. Fausti, 385 Pa. at 69, 121 A.2d at 880. In addition, specific performance should not be ordered where it appears that doing so may result in hardship or injustice to either party. Wagner v. Estate of Rummel, supra.

In a matter of specific performance, this Court will not reverse the decision of the trial court, acting as chancellor, unless we conclude that he has clearly abused his discretion or committed an error of law. Cimina v. Bronich, 517 Pa. 378, 387, 537 A.2d 1355, 1359 (1988). “Where a reading of the record reasonably can be said to reflect the conclusions reached by the Chancellor, a reviewing court may not substitute its judgment for that of the Chancellor.” Id. at 387, 537 A.2d at 1360 [quoting Rusiski v. Pribonic, 511 Pa. 383, 389-90, 515 A.2d 507, 510 (1986) ]. Although a reviewing court is not bound by facts which have no support in the record or which are merely derived from other facts, id. at 387, 537 A.2d at 1360, we are bound to follow the chancellor’s decision if - facts can- support it, id. at 383, 537 A.2d at 1357-58.

After carefully considering the relevant case law and the evidence of record, we conclude that the trial court’s decision to refuse to order specific performance was neither a clear abuse of discretion nor an error of law. Barnes could not be ordered to convey legal title to the property because he did not hold such title. See Cohen v. Tonkin, 358 Pa. 422, 57 A.2d 840 (1948) (where evidence was sufficient to sustain finding that conveyance of property from defendant to mother-in-law was a gift, bill for specific performance of agreement of sale was properly dismissed, as defendant did not have title to property). McKellar contends that Barnes could have obtained, and therefore should have been ordered to obtain, legal title. As the trial court pointed out, however, the agreement of sale imposes no such obligation on the seller.

Moreover, the record is replete with the type of uncertainty that argues against the award of specific performance. McKellar suggests, for example, that he was willing to accept a quitclaim deed from Barnes. This information does not appear in his trial testimony, however; during closing arguments the trial court asked McKellar’s counsel if McKellar would take'a quitclaim deed from Barnes, and counsel replied that McKellar would do so. Similarly, McKellar asserts that Barnes was able to convey clear title to the real estate, but then cites Barnes’ testimony that “[w]e were going to get [title]. Yes. We were — we were going to try, but we had to pay the house off to get it” (N.T. at 52). Asked by McKellar’s counsel whether “you wanted Stephen McKellar to give you the $18,000 from which you were going to pay the house off and then, he would have to wait for title?” (N.T. at 52), Barnes answered no. In contrast, McKellar testified that Sam Ahluwalia, Barnes’ agent at Century 21, told him that “he wanted me to give him the money so that he could obtain the deed” (N.T. at 114). McKellar now maintains that “[apparently, [Barnes] has the financial means to pay off the Administrator of Veterans Affair[s] and get title in his name and then convey it to [McKellar]. It is also apparent that [Barnes] had just refused or did not bother to do so” (Brief for McKellar as Appellant, at 16).

In sum, we do not need to consider whether the second and third requirements for a decree of specific performance (i.e., whether there is no adequate remedy at law and whether justice requires such a decree) have been met, for McKellar has failed to offer evidence sufficient to satisfy the first requirement, namely, that he is clearly entitled to such a decree. Accordingly, the trial court did not abuse its discretion in denying McKellar’s request for a decree of specific performance.

Finally, McKellar contends that the trial court erred in awarding to Barnes unpaid rent and the remedy of ejectment. As McKellar occupied the premises without a lease or any other right thereto, and without paying rent (except for a brief period when he paid rent into an escrow account), we agree with the trial court that Barnes was entitled to the relief in question. See Nikole, Inc. v. Klinger, 412 Pa.Super. 289, 603 A.2d 587 (1992), appeal denied, 535 Pa. 660, 634 A.2d 223 (1993) (buyers cannot withhold monthly payments and thereby treat lease-purchase agreement as breached for one purpose, while remaining in possession of property and thereby treating agreement as in effect for another purpose); Kaplan v. Bankers Securities Corporation, 340 Pa.Super. 579, 490 A.2d 932 (1985) [where tenant holds over after landlord has given notice terminating lease, landlord has option of treating tenant 1) as a trespasser, and ejecting him; 2) as holding over as tenant by sufferance; or 3) as holding over under terms of lease].

Judgment affirmed.

      . Stephen McKellar and Keith McKellar are brothers; Frances McKellar is their mother. Although all three are named as plaintiffs in the complaint filed at No. 90-11301, which states that "[t]he parties hereto entered into a contract for the sale of certain real estate ..the copy of the agreement of- sale that is attached to the complaint as Exhibit A names only "Steve A. McKeller [sic]” as the buyer.

      . Although we have found no appellate case law directly on point, one trial court has held that an action to quiet title by which the plaintiff seeks to cancel a security title held by a bank is not within the jurisdiction of a Board of Arbitrators, as it involves title to real estate. Lane v. Union National Bank of New Brighton, 27 Beaver 191, 40 D. & C.2d 411 (1966) (interpreting predecessor statute).

      . Stephen McKellar asserts that he did not receive notice of the arbitration until after the award was entered and that he thought the two actions had in fact been consolidated.

      . The agreement of sale is a form prepared by the Pennsylvania Association of Realtors, with typewritten additions, including paragraph 5(d); the Lesniak & Coulston Century 21 agency is named as the seller’s agent; and Stephen McKellar testified that this was the agreement that he received from Sam Ahluwalia of Lesniak & Coulston.

      . In his brief as appellee, Barnes asks that we order McKellar to pay such rent as has accrued since the date of trial or, alternatively, that we remand the matter to the trial court so that the matter of additional rent can be addressed there. Barnes does not request such relief in his brief as appellant, however. Accordingly, we decline to consider the request. Cf. Arcidiacono v. Timeless Towns of the Americas, Inc., 363 Pa.Super. 528, 526 A.2d 804 (1987) (appellee who files no counter-appeal cannot raise issues not raised by appellant).