author: MONTGOMERY, Judge:

text:
    455 A.2d 1204
    Martha S. HAMIL, Administratrix of the Estate of Kenneth C. Hamil, Appellant, v. H. Woodrow BASHLINE, Don L. Bashline, Wayne L. Bashline, Vincent F. D’Angelo, Leslie A. McClimans, John L. Johnston, and Arthur M. Linfante, T/A The Bashline Hospital Association, Ltd.
    Superior Court of Pennsylvania.
    Argued June 17, 1982.
    Filed Dec. 23, 1982.
    Reargument Denied March 4, 1983.
    Petition for Allowance of Appeal Denied June 1, 1983.

      Henry S. Moore, Grove City, for appellant.
    George Hardy Rowley, Greenville, for appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The history of this wrongful death action is long and tortuous. The present appeal marks the third appearance of this litigation before this Court, following the third trial in the case. As in prior appeals, the Plaintiff is again the Appellant, seeking a reversal and new trial, based upon claims of trial court error.

It is appropriate at the outset that we review the procedural history of the litigation. The first trial of this case, like those that followed, involved wrongful death and survival claims by the Plaintiff as administratrix of her deceased husband’s estate, against the Defendant-Appellees, trading as The Bashline Hospital Association. The Plaintiff’s cause of action, as more fully described below, was based upon events which occurred when she took her husband to the Defendants’ hospital on May 31, 1968, as a result of his complaints of severe chest pains. After receiving little attention or care at the Defendants’ facility, the Plaintiff took her husband to the office of another physician, where he shortly thereafter died, the victim of a heart attack.

At the first trial, the court entered a judgment upon a directed verdict for the Defendants. The Plaintiff appealed and our Court subsequently reversed and remanded the case for a new trial. See Hamil v. Bashline, 224 Pa.Super. 407, 307 A.2d 57 (1973), wherein this Court ruled that the lower court had erred in its conclusions on to the issue of causation. On that basis, our Court found that the Plaintiff had presented a prima facie case of negligence, and therefore held that the directed verdict for the Defendants had been improper.

No appeal was taken from that 1973 decision, and a second trial was subsequently held in the lower court. At that trial, the jury was asked to render special findings. It concluded that while the Defendants were negligent, such negligence was not the proximate cause of the decedent’s death. Again, the Plaintiff filed an appeal to our Court, alleging that the trial court had failed to adhere to the 1973 holding by our Court on the first appeal. In Hamil v. Bashline, 243 Pa.Super. 227, 364 A.2d 1366 (1976), a plurality of this Court affirmed the defense verdict, on the ground that our Court had erred in ordering a new trial in the 1973 decision. The Plaintiff then appealed to the Supreme Court, which reversed and ordered a new trial. See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). The Supreme Court’s decision was based essentially upon the causation issue and the Court clearly enunciated rules to be applied in future cases in our Commonwealth involving medical proof of causation.

The third trial was then held in the lower court. The Plaintiff produced the same evidence as had been adduced at the prior two trials. A recitation of that evidence is appropriate here. The record shows that at approximately 11:30 p.m. on May 31, 1968, the Plaintiff called The Bashline Hospital to report that her husband was suffering from severe chest pains. She talked to the night supervisor, Margaret Montgomery, who advised her to bring her husband into the Hospital as a doctor was present and her husband would be given medical attention. The Plaintiff transported her husband to the Hospital, arriving at 12:15 a.m. After she arrived she learned that the doctor who was assigned to emergency duty was not there and could not be located. However, Dr. John L. Johnson, one of the Defendants, had been called to the Hospital earlier that night to treat one of his own patients, and was present in the facility at the time of Mr. Hamil’s arrival. When advised of Mr. Hamil’s condition, Dr. Johnston took Mr. Hamil’s pulse, but did not speak to him or his wife or perform any other personal diagnostic procedure. Dr. Johnston ordered an electrocardiogram (“EKG”) taken. A hospital aide, Sadie Miller, made an attempt to comply with this order but the EKG machine failed to operate. Dr. Johnson tried unsuccessfully to get it to operate. The apparent reason for the failure was that the machine had been plugged into an electrical outlet which was known to have been defective in the past. When Dr. Johnston was advised of the malfunction of the EKG machine, he ordered that another machine be used and then left the hospital. However, a second EKG machine could not be located. Upon being advised that there were no other physicians at the hospital to examine or treat her husband, Mrs. Hamil then transported her husband to the office of another physician in Harrisville, Pennsylvania. The record indicates that Mr. and Mrs. Hamil left the Bashline Hospital approximately one hour after the initial time of their arrival at the emergency room. Shortly after his arrival in the office of the doctor in Harrisville, and while in the course of an EKG exam, Mr. Hamil died of ventricular fibrillation, a complication of a type of heart attack properly described as a myocardial infarction. It was further established that at the time Mr. Hamil was at the Defendants’ hospital, the facility had standard equipment for the treatment of heart attacks and ventricular fibrillation, including beds, oxygen, pain-relieving drugs and equipment to effect defibrillation. Further, nursing care was available and a cardiologist was on call.

The Plaintiff’s basic claim, as set forth in her Complaint in this litigation, is that the Defendants were negligent in failing to provide proper care to the decedent after having undertaken to do so. Over the objection of the Plaintiff, the trial judge submitted the following special interrogatories to be answered by the jury:

1. “Was Margaret Montgomery negligent?
2. “Was Dr. John L. Johnston negligent?
3. “Was Sadie Miller negligent?
4. “Was Martha S. Hamil negligent?”

Further, in its charge, the lower court judge repeatedly separated Dr. Johnston from the other Defendants in discussing possible liability. The Plaintiff exercised timely objections to these actions by the trial judge. The record shows that the Plaintiff also submitted numerous points for charge which were refused by the lower court. Such points will be discussed, as appropriate, later in this Opinion.

The Plaintiff urgently contends that the trial court acted improperly in submitting the case to the jury on the four special interrogatories set forth above. She reasons that a case was established for the jury to decide whether the combined inaction of the Defendants in the operation of their hospital was a failure to exercise due care in rendering medical attention to her deceased husband. Thus, she maintains that the lower court committed reversible error in ruling that a judgment could be rendered for the Plaintiff only if one of the three Bashline Hospital personnel who had contact with Mr. Hamil on the night of his death had performed in a negligent manner or, in the alternative, had negligently failed to act. Despite our great reluctance to require the parties to this litigation to proceed through a fourth trial of this case, and mindful of the time, expense, and potential hardship which may be involved, we are nevertheless compelled to strongly agree with the Plaintiff, and to conclude that a new trial is again mandated.

The reasons for this conclusion should be readily evident. The Plaintiff brought her action against seven Defendants who were jointly operating a hospital facility. Although the Plaintiffs Complaint alleges specific negligence by Ms. Montgomery and Dr. Johnston, such allegations were not the only basis asserted for a recovery against the Defendants. The Complaint also asserted that the Defendants, their members, agents, servants, and employees exercised a lack of due care in failing to have a qualified doctor available to administer to Mr. Hamil on the night in question, in failing to have the electrocardiograph in an operating condition, in failing to locate a second machine when the first did not work, and, in failing to provide competent medical care and use ordinary and accepted procedures that would have possibly saved Mr. Hamil’s life. Moreover, no specific act of negligence by aide Sadie Miller was alleged in the Complaint.

As was noted earlier, the decedent was brought into the facility at the express invitation of one of its employees, the night supervisor, Margaret Montgomery. Mr. Hamil was not turned away from the facility after his arrival, but was essentially provided with no medical attention for the critical hour in which he remained there. Even though Mrs. Hamil was advised that her husband would receive medical attention at the Defendants’ hospital, the one physician who was there and could have treated him left the facility without any thorough diagnostic attention to Mr. Hamil, and without examining the results of the EKG test which had been ordered. The physician who was to handle emergencies that night was simply unavailable. Other factors of importance to the Plaintiff’s theory of the case were the evidence of the faulty operation of the EKG equipment, the apparent absence of a back-up EKG machine, and/or the defective or non-operative electrical outlet from which power was sought for the operation of the EKG equipment. All of these factors would have been supportive of the Plaintiff’s theory of negligence, yet it is clear that because of the special interrogatories submitted to the jurors, such matters could not have been considered by them.

For example, even if the jurors would have concluded that less than reasonable care was shown by the absence of the physician assigned to the emergency room or by the failure of the EKG machine to work, the jurors were not allowed to make findings of negligence or reach a verdict based upon such grounds, for they were limited to resolving the isolated issues of whether three particular individuals were negligent that night. Stated another way, the absence of personal negligence on the part of Dr. Johnston and/or the two Hospital employees could not be held to preclude a finding of negligence on .the part of all of the Defendants in their operation of the Hospital, under the facts presented in this case. Since the Plaintiff was deprived of the opportunity to have the jury render a verdict regarding the possible joint liability of the Defendants in the operation of their Hospital, on such grounds, it is clear that the Plaintiff is entitled to a new trial.

During the second trial of this case, the lower court submitted similar special questions to the jury, to which the Plaintiff took exception. In denying the Plaintiffs motion for a new trial after the third trial, the lower court ruled that the Plaintiff waived the right to again allege error as to these questions, since she failed to raise them as an issue on her second appeal to this Court or on the subsequent appeal she filed to the Supreme Court. The lower court cited the “law of the case doctrine” as support for its finding that the issue had been waived. We find that the lower court’s reliance upon that doctrine was incorrect. The Supreme Court has explained the rule: “The doctrine of ‘the law of the case’ is that, when an appellate court has considered and decided a question submitted to it on appeal, it will not on a subsequent appeal on another phase of the same case reverse its previous ruling even though convinced it was erroneous”. Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 394, 100 A.2d 595, 598 (1953), citing Southern Railway Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 127, 67 L.Ed. 283. The Court has also stated that: “Under the law of the case doctrine, which only applies to appellate courts, a court will refuse to reconsider its own rulings of law on a subsequent appeal of the same case.” Kuchinic v. McCrory, 422 Pa. 620, 625 n. 7, 222 A.2d 897, 900 n. 7 (1966) (emphasis added). The special jury questions before us on the present appeal have not previously been placed in issue either before our Court or the Supreme Court, and there has been no prior appellate ruling on them. Even if there had been some ruling thereon, the trial court obviously could not invoke the appellate rule of the case doctrine. Thus, the lower court was incorrect in concluding that the issue of the propriety of submitting the four questions to the jury was somehow waived as a result of that doctrine.

In normal circumstances, having decided that a reversal was mandated on the basis of one of the issues raised by an appellant, our Court, like other appellate courts, would avoid deciding any other issue presented. This case, however, is not a “normal” one inasmuch as three trials have already been held and our reversal and remand will cause a fourth trial in lower court. In these highly unusual circumstances we deem it advisable to make further observations in this Opinion with respect to several other matters which are raised as issues by the Appellant, and which might present additional problems for the parties in the pending retrial of this case. These other points of contention all involve various instructions to the jurors to which the Plaintiff-Appellant took exception at trial and which are addressed by the parties on this appeal. The court’s charge to the jury will certainly be modified in the forthcoming trial to a large extent as a result of our holding that it was improper for the court to have limited, the jurors to answering four special interrogatories. We believe it would be beneficial to discuss those matters brought to our attention on this appeal which may again arise to create some problem in the retrial of this matter.

The Plaintiff has contended that the trial judge erred in repeatedly dealing in his charge with the liability of Dr. Johnston, separate and apart from the other Defendants. Further, the Plaintiff argues that the court also committed error in refusing the Plaintiff’s ninth point for charge, which was: “All of the defendants, being members of the Association, are liable, jointly and severally, for the torts of any member or employee of the Association committed while acting within the ordinary course of operation of the Association.” We believe it would be inappropriate for us, in the present contexts, to set forth specific wording for the lower court to use in its charge. We do want to express, however, that we would conclude that if the same evidence was again presented by the Plaintiff, it would appear to be proper to charge the jury on the possible joint as well as individual liability of all Defendants for the negligence of any Defendant or employee acting within the scope of his employment. Since Dr. Johnston was the only one of the Defendant physicians who was present at and participating in the incidents from which this cause of action arose, it is clear that the Court will have to devote some part of the charge to any possible jury findings of specific negligence on his part. However, since all of the Defendants may be held liable based upon a general jury finding of an absence of due care in the treatment rendered by the Hospital to the decedent on the night in question, the joint liability of all Defendants cannot be ignored in the instructions which the Court will give. Further, the Court must be careful to explain to the jurors that Dr. Johnston may bear liability based not only on his own negligence, but also based upon an absence of due care by others which may be chargeable to all of the Defendants.

The Appellant also claims it was error for the lower court to affirm Defendants’ point nineteen: “You cannot find the Bashline Hospital Association was negligent in failing to have a coronary care unit or in failing to having (sic) another electrocardiograph machine available.” The Court refused Plaintiff’s point number ten, which essentially stated that a hospital owes a duty to its patients and prospective patients to equip and maintain an emergency room with equipment which is customarily and ordinarily used in hospitals of the same general size in similar localities. Further, the Plaintiff’s requested point stated that if such equipment is not available or readily accessible in the hospital and the evidence establishes that the unavailability or absence of the equipment contributed to or caused the disability or other condition complained of by the Plaintiff, then the Defendant Hospital would be negligent. We believe two observations are appropriate. First, the Defendants’ Brief to our Court asserted that the supporting authority for the lower court’s adoption of defense point nineteen was the decision in Emory University v. Porter, 103 Ga.App. 752, 120 S.E.2d 668 (1961). Our review of that decision leads us to the conclusion that it does not support Defendants’ point nineteen. In fact, the Georgia Court stated: “A hospital owes to its patients only the duty of exercising ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use under the same, or similar circumstances in hospitals in the area.” 103 Ga.App. at 755, 120 S.E.2d at 670. Secondly, any instruction concerning this subject which the lower court may make to the jury in the forthcoming trial of this case should be modified to reflect the Supreme Court’s ruling that the increased risk attributed to the failure to render reasonable services to another must be a substantial factor in bringing about the harm complained of. See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

The Plaintiff also argues on this appeal that the lower court erred in affirming Defendants’ points ten, eleven and twelve, which all involved the duty of the Bashline Hospital or Dr. Johnston to admit or furnish treatment to Mr. Hamil as a patient, or even to continue treatment once started. On these points, we refer the parties and the lower court to our discussion of the situation in this case in the separate Opinions of Judges Price and Spaeth in Fabian v. Matzko, 236 Pa.Super. 267, 344 A.2d 569 (1975). As noted there, and as reaffirmed by our own review of the record of the third trial in this litigation, the evidence did not appear to leave any question as to whether or not the Bashline Hospital accepted Mr. Hamil as a patient for diagnosis or undertook to render care to him on the night of his death. Therefore, it would seem improper to allow the jury to speculate upon this matter for if we assume that the same evidence is presented at the next trial, as it is clear that there was such an undertaking.

We remand this case to the lower court with the hope that this matter may be finally concluded with the forthcoming trial. The case has unfortunately presented the parties as well as the lower court with issues of great complexity. We are hopeful that the difficult problems inherent in the case may be more expeditiously resolved by our holding, as well as by the general observations we have made with regard to several questions raised by the jury instructions at the prior trial.

Reversed and remanded for new trial. Jurisdiction is not retained.

      . It is not necessary to our decision in the instant case to reiterate or explain the rules of medical evidence and causation, and we merely refer the reader to the Supreme Court’s thorough discussion of these matters in its 1978 Opinion in this litigation.

      . See the earlier opinions of this Court and the Supreme Court regarding the medical proof which was offered to support the Plaintiff’s position that if proper care had been rendered in a timely manner, the probability was that Mr. Hamil might not have suffered his death that night. That testimony was central to the issue of causation, which was fully discussed in those prior opinions.

      . While concluding that the issue had been waived, the lower court went on to discuss the merits, and explained its rationale for submitting the four special questions to the jury.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    455 A.2d 1210
    COMMONWEALTH of Pennsylvania v. Robert Jordan GREGORY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1982.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Denied Sept. 2, 1983.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, submitted a brief on behalf of appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from judgment of sentence for robbery. Appellant raises eleven issues on appeal. Three of them were not preserved through inclusion in the written post-verdict motions and are therefore waived on appeal. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Since the post-verdict motions were not timely filed we are unable to review all but one of the remaining claims of error presented. One issue, of ineffectiveness, is properly before this court. We find it to be a meritless claim. Hence, we affirm.

The verdict in this case was entered on April 15, 1981. Post-verdict motions were first filed on April 28, 1981, 13 days after the verdict. Pennsylvania Rule of Criminal Procedure 1123(a) provides in part:

Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment.

Despite the violation of this requirement, the trial court proceeded to address the issues raised by the motion on its merits.

The issue before us is this: When post-verdict motions have not been timely filed, and yet those motions were acted upon by the trial court on their merits, are the issues raised in those post-verdict motions preserved for appeal? We hold that they are not preserved but have been waived.

Research discloses no appellate court opinion in this Commonwealth entirely on point. Guidance can nonetheless be obtained from some case law.

In Commonwealth v. Horner, 449 Pa. 322, 296 A.2d 760 (1972), the Supreme Court of this Commonwealth treated a case involving a tardy filing of an appeal. Writing for the Court, the late Justice Manderino stated: “The time for taking an appeal cannot be extended as a matter of grace.” Commonwealth v. Horner, supra, 449 Pa. at 324, 296 A.2d at 762. We recognize that this statement was made in reference to the violation of a different rule than the one before us. Nonetheless, the principle is applicable in the present context. This is particularly so when one considers that post-verdict motions are considered part of the appeals process in this state. U.S. ex rel. Mandrier v. Hewitt, 409 F.Supp. 38 (C.D.Pa., 1976).

Another Supreme Court case provides a situation analogous to the one before us. Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980). Philpot involved the same rule and the same section of that rule as was violated here—but not the same provision. In Philpot, defendant violated the provisions of R. 1123(a) which require that issues be raised in a written post-verdict motion, and which restricts argument in the post-verdict hearing to those issues contained in the written post-verdict motion. Defendant filed no post-verdict motions, but argued issues orally which were then considered by the post-verdict court. The Supreme Court disapproved, stating: “The post-verdict court’s violation of Rule 1123(a) and Blair, however, does not alter our conclusion that appellant’s present contentions are not properly preserved.” Commonwealth v. Philpot, supra, 491 Pa. at 600, 421 A.2d at 1047.

In Commonwealth v. Blair, cited in the above passage from Philpot, the Supreme Court wrote:

The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth, issues not presented in compliance with the rule will not be considered by our trial courts and appellate courts.

Commonwealth v. Blair, supra, 460 Pa. at 32 n. 1, 331 A.2d at 214 n. 1.

As in our consideration of Horner, above, we acknowledge that neither Philpot nor Blair are binding on the case before us. A different provision of R. 1123(a) was being treated in Philpot and in Blair. Here a violation of the time requirement is involved, not a violation of the requirement to file itself. We would be remiss, however, if we did not pay heed to the policy forcefully enunciated in these cases: R. 1123(a) must be complied with; and trial court indulgence of violations will not serve to insulate parties on appeal from the consequence of violations of the Rule. We see no convincing rationale for not applying that policy to the time requirement of R. 1123(a).

At least two Common Pleas decisions have found otherwise, holding that a violation of the time provision can be overlooked by the trial court. In arriving at this conclusion, the trial court observed that if a waiver were found through delay in filing that:

[the defendant] who faces the possible penalty of imprisonment; shall suffer for a default not of his own making and over which he had no control.

Commonwealth v. Styer, 17 Ches.Co.Rep. 218 at 219 (1969). See also, Commonwealth v. Barker, 14 Adams L.J. 111 (1972).

We must reject this line of reasoning. Criminal defendants are subject to the successes and failures of the efforts of their counsel. Even when, as the trial court found, “counsel’s delay [is] inexcusably negligent in the extreme,” id,., it is the client who bears the ultimate burden of his counsel’s actions. This is an inescapable attribute of our legal system. Counsel acts as an advocate for his client. Counsel’s acts or omissions in his representation are welded to his client’s case. To hold otherwise would work a forfeit of not only this, but all other procedural requirements.

The trial court in Styer found another rationale for allowing consideration of the tardily filed motions:

The rights of the public will not be harmed if defendant’s motion is heard on its merits; those of the defendant will be if, it is not.

Id.

This test is impractical. It would be difficult to conceive of a situation in which the defendant’s interest in having the tardy post-verdict motion considered would not outweigh the interests served by disallowing them from treatment on their merits. Under this test, the result would almost invariably be that tardy motions would be treated as if timely filed. The time requirement of R. 1123(a) would thus be rendered a functional nullity.

In any given individual case, it is incontestible that the most serious consequences attend the violation of procedural rules. This is in the nature of procedural rules and the sanctions for failure to comply with them. But other factors must be considered before adopting the test given in Styer.

The cumulative result of applying the weighing test suggested above would impair on the functioning of the courts. Procedural time limits would become operationally meaningless and the orderly disposition of matters before the courts would be hampered.

In addition to this logistical consideration, policy ends of the highest order are served by the final determination of legal controversies. The application of a weighing test with regard to procedural time requirement violations would prolong the active status of a case. Certainty as to the end point of legal proceedings and as to the results of those proceedings is one of the necessary components of a legal system. Without such certainty, a legal system cannot act effectively.

For both of these reasons, we must reject the approach offered by the weighing test. Further, we see the Supreme Court cases Horner, Philpot and Blair as indicative of a strong disposition to rigorous enforcement of procedural appeals rules. We would run counter to that flow only in the presence of special circumstances mandating a contrary result. Such circumstances are not present here. We hold that a violation of the time requirements of R. 1123(a) will work a waiver on appeal, notwithstanding the trial court having treated a tardily filed post-verdict motion on its merits.

One issue alone is properly brought here on appeal: Whether trial counsel provided ineffective assistance in failing to file a motion to dismiss based on the ground that defendant was denied due process of law when the authorities failed to arraign him before a magistrate within six hours of his arrest.

Appellant alleges that he turned himself in to the police at 3 p.m., August 14, 1980, and was not arraigned until 11 p.m., 8 hours later. Any evidence which was obtained after a period of 6 hours of custody could be suppressed. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). But no such evidence is alleged to have been obtained here.

Suppression of evidence is appellant’s only remedy for a delay in arraignment.

There may or may not have been an unnecessary delay between the time the appellant was arrested and the time he was preliminarily arraigned. Even if there was, however, that fact would not require a court to quash the appellant’s arrest. Where there has been such a delay, a court must suppress any evidence obtained as a result of the delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). There is no requirement that an arrest be quashed for such a delay.

Commonwealth v. Johnson, 291 Pa.Super. 566 at 576-7, 436 A.2d 645 at 651 (1981).

Thus, any action by counsel to seek a dismissal on the basis of a delay in arraignment would have been fruitless. Counsel’s failure to raise a meritless claim obviously cannot constitute ineffective assistance of counsel. Commonwealth v, Lennox, 250 Pa.Super. 80, 378 A.2d 462 (1973). There was, therefore, no ineffective assistance in this regard.

In conclusion, only one issue, ineffectiveness vis-a-vis arraignment, is properly before this court; and as explained herein, it is meritless. Three issues were waived due to their non-inclusion in the post-verdict motions. All of the remaining issues were waived due to tardy filing of the post-verdict motions.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3701.

      . These three issues are: (1) Whether the lower court erred when it failed to dismiss the case due to prosecutorial misconduct which occurred during the prolonged deliberation by the jury at appellant’s first trial. (2) Whether appellant was denied due process of law when the authorities failed to arraign him before a magistrate within six hours of arrest. (3) Whether the appellant received proper Miranda warnings.

      . No request to file the motions nunc pro tunc was made, nor was such leave granted by the trial court.
      The record also discloses the appellant was properly informed of the necessity for filing post-verdict motions and the period in which this must be done, and thus a waiver can be found. Commonwealth v. Jumper, 494 Pa. 451, 431 A.2d 941 (1981).

      . Two exceptions to this rule were noted: “fraud or some breakdown in the court’s operation.” Id.

      . Pa.R.A.P. 903.

      . Pa.R.Crim.P. 1123(a).

      . In both of these cases, cited infra, defendant at least requested leave to file the post-verdict motions nunc pro tunc. As has been observed, even this was not done in the case sub judice.

      . The proper forum for defendant’s relief from his counsel’s ineffectiveness is through the Post Conviction Hearing Act. The trial court in Barker, supra, rather candidly admitted that it was choosing to ignore counsel's tardiness in filing so as to prevent a later successful PCHA action.

      . The defendant's interest in having his post-verdict motion considered on its merits is obvious. It creates the possibility that those motions will be granted and he will not be sentenced to prison or probation.

      . If that test were accepted in this context, there would be no logical reason not to apply it to all other procedural time requirements.

      . While involving the same facts as one of the issues waived through absence in the post-verdict motion, n. 2, supra, this claim of error was not waived through its absence there. Nor does the tardy filing of post-verdict motions effect a waiver of this issue. Claims of trial counsel ineffectiveness need only be raised on the first occasion defendant is represented by counsel other than trial counsel.
      Since this claim of ineffectiveness need not have been presented in the post-verdict motions, the tardy filing of those motions is irrelevant to the preservation of this issue.


author: JOHNSON, Judge:

text:
    455 A.2d 1213
    Almeda B. SLASEMAN, Administratrix of the Estate of James Slaseman, Deceased, Appellant, v. Kathryn M. MYERS.
    Superior Court of Pennsylvania.
    Argued June 24, 1981.
    Filed Jan. 21, 1983.

      William B. Anstine, Jr., York, for appellant.
    Frank J. Goldenberg, York, for appellee.
    Before PRICE, JOHNSON and SHERTZ.
   JOHNSON, Judge:

The order appealed from in this case dismissed the plaintiff/appellant’s exceptions and ordered entry of judgment in favor of the plaintiff/appellant in the amount of $11,-234.51 in her wrongful death action, and in the amount of $128,173.77 in her survival action against the defendant.

Appellant presents us with four questions: (1) What is the function of a reviewing court where a judge sitting without a jury has failed to make specific findings? (2) Was the verdict inadequate? (3) Did the trial court err in not making specific findings of fact? (4) Should the trial court have applied the rule of Kaczkowski v. Bolubasz, 491 Pa. 571, 421 A.2d 1027 (1980), to the case before ordering the entry of final judgment? (See note 1 supra.) Appellant asks this court to make an independent finding that the verdict should be at least $340,000.00 and to instruct the trial court to enter such a verdict accordingly.

The verdict of the trial court after the two day non-jury trial found the defendant/appellee negligent, which negligence it found to be the cause of the death of the decedent husband; it found the decedent non-negligent; and it rendered the verdict as indicated above. The verdict did not contain any special findings of fact.

Our supreme court has said that where the decision in a non-jury trial is in the form of a naked verdict without findings of fact, the appellate court must make an independent review of the record. Lewkowicz v. Blumish, 442 Pa. 369, 275 A.2d 69 (1971) (action in equity to quiet title); Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319 (1969), cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970) (assumpsit action brought at a time when the applicable statute provided that a non-jury court need not state findings of fact unless requested by counsel). This we shall do. However, the scope of our review is limited to whether the trial court’s findings of fact are supported by competent evidence and whether or not the lower court committed an error of law. E.I. duPont de Nemours & Co. v. Berm Studios, Inc., 211 Pa.Super. 352, 236 A.2d 555 (1967).

Similarly, where the issue raised on appeal is the inadequacy of the verdict, the “injustice of the verdict should stand forth like a beacon.” Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 241 (1959). A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Dougherty v. Sadsbury Township, 299 Pa. Super. 857, 445 A.2d 793 (1982); Rutter v. Morris, 212 Pa.Super. 466, 243 A.2d 140 (1968). If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded. Id.

The facts of this case, gleaned from a careful review of the record and of the trial transcript, are as follows. At twelve noon on June 20, 1977, plaintiff/appellant’s husband, James Slaseman, was riding his motorcycle north on a highway in York County. He was wearing a helmet and had his headlights on. Defendant/appellee Kathryn Myers was riding in her automobile in the opposite direction. At an intersection Myers turned left from her lane into the path of the oncoming motorcycle. The road was clear, straight and dry. The motorcycle collided with the car, and Slaseman was thrown off the motorcycle, over the cars and into the southbound lane, where he landed on the highway. Within minutes there were emergency services people at the scene, but Slaseman was pronounced dead at the hospital an hour later. His death was caused by severe skull fractures. He also suffered a compound fracture in the arm, an injured knee, and contusions and abrasions all over his body. A witness to the accident testified that immediately after landing in the road Slaseman tried to get up, but was unable to. His eyes were open. He was bleeding profusely. His arm was twisted and bleeding heavily. The witness testified that she spoke to Slaseman, as did a bystander, in an attempt to comfort him, and that he responded by lying back down as they suggested.

The ambulance attendant, a registered nurse, arrived on the scene some minutes later. At trial she testified that Slaseman’s behavior when she attempted to treat him as he lay in the road was that of a conscious person—moaning, breathing rapidly, yet calming down when touched or spoken to. N.T. at 34. She further testified that she attempted chiefly to make an open airway but was unable to open his mouth in order to do so until he “relaxed much more on the way in the ambulance.” N.T. at 36.

The police officer who reached the scene very shortly after the accident testified as to the accident scene, the position and condition of the vehicles, and the condition of the road. On cross-examination, however, he expressed the view that Slaseman was unconscious after the accident. N.T. at 13-14. The coroner who examined Slaseman’s body after death stated that the skull fractures he suffered would have rendered him unconscious. N.T. at 60.

Slaseman’s physician, an osteopath, testified to Slaseman’s physical strength and excellent health. Slaseman was 55 years old at the time of his death. Slaseman neither smoked nor drank and had no physical ailment of any kind. There was also some testimony as to the longevity of his family. Based on government actuarial tables, Slaseman’s life expectancy was another twenty years. The physician testified that Slaseman was a “better than average candidate for longevity because of his physical condition and background.” N.T. at 52-53.

An accountant, the comptroller for Slaseman’s employer, testified that Slaseman worked as a night terminal supervisor for a trucking company. He was in the top three out of fifteen in seniority. He was considered a good worker and much liked by his co-workers. In the year of his death he would have earned $19,888.68. He had enjoyed regular raises each year. He was a member of a union and his contract was negotiated as part of the union contract. The company comptroller testified that he would have averaged pay raises of 6% over each of the next ten years, should he have retired at age 65, or over each of the next fifteen years, should he have retired at age 70.

There was testimony from the union business agent as to the pension Slaseman would have earned if he had worked to retirement age. There was also testimony as to the fringe benefits to which Slaseman was entitled as a union worker, specifically “health and welfare, which is eye, dental, prescriptions, office calls, major medical.” N.T. at 130. “All his health and welfare ... benefits would apply to his family up until if he had a child 18 or 19, or unless they were going to college, and then they would be covered until they are 23 ... His wife also.” N.T. at 131. None of these benefits continues after the death. N.T. at 143.

Slaseman was married. Until 1978 his wife worked as a sewing machine operator, but because of arthritis she has been forced to stop working. There were four children to the marriage, two of whom were living at home at the time of the accident, a son working, a daughter going to a training school. Since the accident the daughter lives at home and works, the son travels and returns home intermittently.

Before his untimely death Slaseman worked the night shift. During the day he worked in the family garden, growing vegetables and fruit trees. The family testified that he spent about 39 hours a week working in the house and yard, and helping his wife with chores and errands. Their free time was spent camping or fishing. The family members testified to the affectionate, considerate relationship between Mr. and Mrs. Slaseman, and to the supportive and instructive time spent between father and children.

An actuary testified as to the damages caused to his family by Slaseman’s death, based on the figures with which he was provided, and on the various U.S. government tables regularly used by actuaries for such calculations. The actuary calculated the past lost earnings (from date of death till trial) as $22,193.00 less the cost of maintenance, leaving $18,713.00. N.T. at 206. For the future lost earnings he made calculations based on Slaseman’s working either till age 65 or till age 70. Up to age 65 the future earnings, less cost of maintenance of $3,000.00 per annum, based on the figure estimated by the family as well as on the life tables, reduced to present value, was $140,001.00. Up to age 70, the present value of the future lost earnings less personal maintenance was $237,336.00. N.T. at 210. The net figure for past and future lost earnings was $158,-714.00 up to age 65, and $256,049.00 up to age 70. N.T. at 211. The value of the lost pension was calculated to be $59,826.00 for age 65, and $34,462.00 for age 70. N.T. at 211-12. The actuary also calculated the lost Social Security benefits—after retirement at 65, these would be $38,914.00, and after retirement at age 70, these would be $19,480.00. N.T. at 213-14. The actuary then showed the cost to the employer of providing the fringe benefits Slaseman enjoyed, which was currently $1,539.00. N.T. at 215. Based on that figure the actuary calculated the value of the lost fringe benefits up to age 65 to be $11,504.00, and up to age 70 to be $16,152.00.

The actuary also calculated the value to the family of the services which Slaseman performed. He used the number of hours spent, as provided by the family, and the various current rates of pay in that geographical area for those tasks. Reduced to present value and counting for nineteen further years, based on Slaseman’s life expectancy, the figure was $90,340.00. N.T. at 218.

The actuary further provided the court with a straight line calculation of lost future earnings, which he considered to be unrealistic. A straight-line calculation involves no increase in pay or in cost of personal maintenance. Up to age 65 this figure was $133,542.00, and up to age 70 this figure was $187,939.00, in lost future earnings. N.T. at 220-21.

The actuary stated that he made no calculation for inflation, and considered the specific earning potential rather than general economic trends in making the calculations in this case.

Other than estimating her husband’s personal maintenance costs as having been $3,000.00 per annum, Mrs. Slaseman testified that her husband used to give her his pay check, which she deposited in the bank, and from which she would give him ten or twenty dollars in spending money. N.T. at 109-10.

The rule in Pennsylvania is that in survival actions the measure of damages is the decadent’s pain and suffering and loss of gross earning power from the date of injury until death, and the loss of his earning power, less personal maintenance expenses, from the time of death through his estimated working life-span. Incollingo v. Ewing, 444 Pa. 263, 309, 282 A.2d 206, 229 (1971); Prince v. Adams, 229 Pa.Super. 150, 324 A.2d 358 (1974).

Damages for wrongful death are the value of the decedent’s life to the family, as well as expenses caused to the family by reason of the death. The Wrongful Death Statute, 42 Pa.C.S.A. § 8301 (Purdon Pamp.1982), compensates the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death. Sinn v. Burd, 486 Pa. 146, 151 n. 3, 404 A.2d 672, 675 n. 3 (1979). This includes the value of services the victim would have rendered to his family if he had lived. Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980).

In this case the trial court awarded $128,173.77 in the survival action, and $11,234.51 in the wrongful death action. Of the latter award, $3,234.51 compensated the funeral and administration expenses, leaving $8,000.00 as the amount of pecuniary loss to Mrs. Slaseman because of her husband’s death.

Because of the absence of specific findings by the trial court we do not know if the court awarded any amount for conscious pain and suffering. In Gallagher v. Four Winds Motel-Hotel, 233 Pa.Super. 1, 6, 335 A.2d 394, 397 (1975), this court stated that it is a matter of judgment as to what will fairly compensate a plaintiff or the estate for the pain and suffering endured, but that a failure to award any amount for pain and suffering is a strong indication that the verdict is inadequate. In the case before us, there was testimony from three witnesses, including the registered nurse who tended Slaseman at the scene, which would tend to show that he was conscious and in pain. One witness to the accident testified to talking to Slaseman, telling him to lie still; she testified that he looked at the bystanders who were trying to help him. In the witness’s words, “His arm was all twisted and turned, and bleeding badly, his face was very gray, like he was in shock, and he was bleeding from the head and from the nose.” N.T. at 23. A second witness to the accident testified that after landing on the road Slaseman “tried to raise up and then he laid back down.” N.T. at 29. The registered nurse on the ambulance crew testified as follows:

When I arrived, Mr. Slaseman was lying on the ground. At this point I cannot really tell you which side he was lying on, but I do remember that his right arm had a compound fracture with both bones showing in the forearm. As a matter of fact, the arm in layman’s terms was torn off. Also, there were multiple cuts I would say, and the left side of his head was extremely mushy. There was a lot of bleeding. The blood, was running down across his face and down his head. It was very hard to distinguish if there were a lot of cuts. I don’t remember, actually remember applying pressures. There were massive abrasions on the left side of his head. I found the open fracture. I think probably the thing that caught my eye the the most was this gentleman was not really breathing adequately, because his color was extremely blue.
Okay, he wasn’t conscious in the sense that he talked to me or there was any gross movement. By what I know in my background, I would say yes, he was conscious in the sense that there was a moaning, he was restless not in the sense that he was flailing himself, but his breathing was extremely heavy and labored. I don’t feel this is due to the fact that he was obstructed. It was more due to the fact—anyone knows when you are excited you’re breathing rapidly, and it was this type of thing when you talk to him, he calmed down; when you touched him, and talked to him he calmed down.

N.T. at 33-34.

There was contradictory testimony from the police officer who testified in detail to the position and condition of the vehicles and merely stated on cross-examination by defense counsel that Slaseman was not conscious, and from the coroner who stated that the injuries Slaseman received would have rendered him unconscious. From this conflicting testimony, however, we find there is sufficient evidence to believe that Slaseman was conscious, despite his very severe injuries, at least until he was in the ambulance on the way to the hospital.

In addition to an absence of findings on pain and suffering, there is no information by the trial court as to which evidence it relied on to decide the amount of the verdict. There are statements in the opinion by the trial court, for the court en banc dismissing plaintiff/appellant’s exceptions, to the effect that a fact finder does not have to believe the testimony, even uncontradicted, of the witnesses. The court also stated that there was no testimony concerning the amount contributed by the decedent to his family, or to the amount of money which he gave to his children. While we agree that there was no cash figure as to what money he gave the children, we disagree that the evidence does not indicate how much of his salary went to his family or at least to those living with him, wife and daughter. The wife managed the money, and gave him an allowance. He was apparently not profligate. The court could have deduced that the bulk of his earnings went to the support of the family for shelter, food, clothing, education and recreation. Compare Buchecker v. Reading Co., 271 Pa.Super. 35, 412 A.2d 147 (1979).

There was uncontradicted testimony from the actuary, who provided the court with alternatives depending on the age at which Slaseman would have retired, which consisted of figures for lost earnings, lost pension, lost social security benefits, lost fringe benefits and loss of value of services provided:

Lost earnings until age 65—$158,714.00
Lost earnings until age 70—$256,049.00
Lost pension (retirement at 65)—$59,826.00
Lost pension (retirement at 70)—$34,462.00
Lost social security benefits (retirement at 65)—$38,-914.00
Lost social security benefits (retirement at 70)—$19,-480.00
Cost to employer of fringe benefits (retirement at 65)— $11,504.00
Cost to employer of fringe benefits (retirement at 70)— $16,152.00
Value of services to family (for life-expectancy)—$90,-340.00

We see no reasonable relation between the total amount awarded and the amount of damages proved.

The wrongful death verdict was for $11,234.51, $3,234.51 of which was the expenses caused by the death. This leaves an amount of eight thousand dollars compensating this widow for the loss of a husband who had a projected life span of at least twenty years, and a working life-span of ten to fifteen years, where at the time of death his union-negotiated salary was over $19,000.00 per annum.

Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made for such items as shelter, food, clothing, medical care, education, entertainment, gifts and recreation. The widow is also entitled to the pecuniary value of the services, society and comfort she would have received from the decedent. Spangler v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 485, 153 A.2d 490, 492 (1959).

The uncontradicted testimony in the transcript describes a close-knit couple, where the husband gave his pay check to his wife and spent about $3,000.00 per annum on himself. It also describes the amount of work done in the garden and around the house, on which the actuary placed a value. We are shocked that the court rendered a verdict of only eight thousand dollars to compensate the widow where the figures for lost earnings and the value of services rendered amount to at least $158,000.00 and $90,-000.00 respectively, disregarding the value to the widow of the pension, social security and fringe benefits, and disregarding also the loss of society and comfort.

The survival act verdict was $128,173.77. This was compensation to the estate, presumably for the loss of net earnings, the loss of pension, social security and fringe benefits to the decedent himself, as well as compensation for his conscious pain and suffering while he lay in the road after the accident. Again we see no relation between the verdict awarded by the court and amount of the loss to the estate as calculated by the actuary, particularly in view of the fact that the lower court considered, with respect to the wrongful death action, that the evidence was insufficient to show that Slaseman contributed to the support of his wife. Slip op. at 3. The lower amount of net lost earnings alone is greater than the sum awarded, leaving no allowance for the other compensable items.

We therefore vacate the verdict as inadequate and remand to the trial court for the issuance of a new verdict based on the evidence presented at the trial. The trial court shall consider all the required elements of damages for wrongful death and survival actions for which there was evidence presented. See, e.g., Pennsylvania Suggested Standard Civil Jury Instructions (1981) and subcommittee Notes thereto. Because the testimony at trial provides the court with calculations with and without the reduction to present value, the rule of Kaczkowski v. Bolubasz, supra note 3, shall be applied, in order that Slaseman’s family may be compensated to the full extent of the loss they have sustained, yet not receive any double recovery, see Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942).

Jurisdiction is not retained. The parties will have the right to appeal from the new verdict.

      . In its initial order dismissing the exceptions, Slaseman v. Myers, No. 77-S 3409, Civil Action Law (C.P. York County, order filed December 7, 1978), the court omitted to direct the entry of judgment. The plaintiff appealed to this court, which appeal was docketed at No. 256 March Term, Harrisburg, 1978. Because judgment was not entered prior to that appeal, however, the superior court per curiam quashed the appeal in an order filed January 16, 1981. 285 Pa.Super. 167, 427 A.2d 165. The trial court subsequently ordered entry of judgment on March 15, 1981. It is from that final order that plaintiff/appellant appeals to this court.

      . Act of April 22, 1874, P.L. 109, § 2, as amended; 12 P.S. § 689 (Purdon 1953), repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [634], effective June 27, 1980. The current rule, Pennsylvania • Rule of Civil Procedure 1038, however, merely provides that the trial judge may, if he wishes, include as part of the decision specific findings of fact. Pa.R.C.P. 1038(b), 42 Pa.C.S.A. (Purdon 1975).

      . At the time of trial Pennsylvania courts still followed the rule that the damages were to be reduced to present value. See Incollingo v. Ewing, supra. This rule was abandoned in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980). In Kaczkowski our supreme court decided that the Pennsylvania rule, which involved ignoring inflation and productivity, and yet reducing lump sum awards to their present value, ignored the courts’ responsibility to attempt to graduate the amount of damage award exactly to the extent of the loss. 491 Pa. at 571, 421 A.2d at 1032. The supreme court therefore ruled that henceforth “damages will be awarded for lost future earnings that compensate the victim to the full extent of the injury sustained. Upon proper foundation, the court shall consider the victim’s lost future productivity____ [Fjuture inflation shall be presumed equal to future interest rates with these factors offsetting. Thus, the courts ... are instructed to abandon the practice of discounting lost future earnings." 491 Pa. at 583, 421 A.2d at 1038-39.

      . Slaseman v. Myers, No. 77-S-3409, slip op. at 4 (C.P. York County, December 7, 1978).

      . There was no contradiction to any of the testimony as to monetary amounts in this trial.

      . Slip op. at 3-4.

      . In Buchecker this court, WIEAND, J., concurring in the result, said:
      In the wrongful death action, the bulk of decedent’s net earnings of $373,599.00 would have gone to the support of his family for shelter, food, clothing, medical care, education and recreation. Appellee was entitled to recover the loss of such support in the wrongful death action. Appellee was entitled to recover for the value of services, society and comfort the family would have received had decedent lived. The evidence set forth loss of services in guidance, tutelage, and moral upbringing decedent provided for his children. Decedent provided recreation for his family in the form of bowling, attending amusement parks, theaters, picnics and similar recreational activities. Decedent worked fixing his home, made a train and gymnasium for the children and played games with them. He took them on trips to New York, Philadelphia and the Jersey Shore. In the cities they visited the zoos and museums. In season, he took his children to the ski areas in the Poconos. These activities had a substantial monetary value.
      271 Pa.Super. at 57, 412 A.2d at 158.


text:
    455 A.2d 1221
    In the Matter of the ADOPTION OF K.S.C. and D.J.C. Appeal of J.C.
    Superior Court of Pennsylvania.
    Submitted Nov. 8, 1982.
    Filed Jan. 21, 1983.

      Terrence P. Cavanaugh, Erie, for appellant.
    Jeffrey A. Connelly, Erie, for appellees.
    William A. Dopierala, Erie, for Childrens, participating party.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is an appeal from a final order dated March 1, 1982, involuntarily terminating the parental rights of J.C. to her children K.S.C., age 15, and D.J.C., age 12. For the reasons stated below, we vacate the order and remand the case to the lower court.

In December of 1977, J.C., who resided in Corry, Pennsylvania, voluntarily entrusted K.S.C. and D.J.C. to Children’s Services for temporary placement in a foster home. At that time, J.C. was seriously handicapped from an automobile accident the previous year. On July 17, 1978, the children were adjudicated dependent and, at the same time, J.C. was ordered to cooperate with the services offered by the Bureau of Vocational Rehabilitation. J.C. did, in fact, obtain employment, through B.V.R., at the Gertrude Barber Center in Corry, where she remained until July of 1979. K.S.C. and D.J.C. were placed in their present foster home in Erie (30 miles away from their mother) in February of 1979. Short visits took place at J.C.’s residences. In April 1980, three weekend visits were arranged at an apartment J.C. shared in Erie. The children were unruly after these visits and the visits were stopped. On May 15, 1980, after a review hearing, it was ordered that visits take place only at J.C.’s or the children’s request and J.C. was further ordered to provide her own transportation. In November 1980, two visits took place at the agency. Because of a variety of logistical problems, there were no further visits until July 7, 1981, when J.C. went to the foster home. In April 1981, a further treatment plan had been proposed to J.C. which included: (1) setting up a stable household in one place; (2) obtaining nutritional counseling; (3) obtaining proper medical care for herself and the children; (4) obtaining mental health counseling; (5) improving her money management skills; (6) continuing her employment with Gertrude Barber Center; and (7) improving her parenting skills. Sometime in June 1981, J.C. moved to a farm in the Corry area and the caseworker was unable to locate the farm. She did finally meet with J.C. in August 1981. After that meeting, the caseworker testified, the children said they did not want to visit J.C. and the involuntary termination petition was filed. It is undisputed that J.C. did keep in touch with her children through letters and phone calls. The lower court terminated J.C.’s parental rights on several grounds, each of which we will address separately.

The first ground relied on by the lower court is that contained in 23 Pa.C.S.A. § 2511(a)(5), which provides:

“The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

We believe there is insufficient evidence to support termination on this basis. In the first place, the evidence regarding the conditions which led to the placement of the children was both vague and meager. We are unable to tell from the record whether those conditions have changed or not since the only “condition” alleged by Children’s Services is “neglect.” In addition, this section of the statute requires the court to consider the services and assistance offered the parent by the agency in an effort to correct the conditions which led to placement. See, 23 Pa.C.S.A. § 2511, 1980 Source and Comment. Again, the record shows little or no assistance was provided to J.C. by Children’s Services. Therefore, as to termination of J.C.’s parental rights under 23 Pa.C.S.A. § 2511(a)(5), we must reverse the order of the lower court, there being insufficient evidence to support it.

The second ground relied on by the lower court was that J.C. had, by conduct continuing for over six months, failed to perform her parental duties. 23 Pa.C.S.A. § 2511(a)(1). The mere fact that a parent does not have custody does not alone support termination of parental rights. See, e.g., In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979). A non-custodial parent must, however, affirmatively demonstrate her love, protection and support of her children and must make every reasonable effort to maintain communication and association with her children. In re Farabelli, 460 Pa. 423, 333 A.2d 846 (1975). In addition, the court must look at the individual circumstances of the parent to determine whether she has utilized those resources available to her to maintain a relationship with her children. In re Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977). We are also mindful of the recent United States Supreme Court decision holding that parental rights may be involuntarily terminated only if the petitioner proves by clear and convincing evidence that grounds for termination exist. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

In the instant case, it is true that more than six months elapsed between the November 1980 visits and the July 1981 visits. It is, however, undisputed that other contacts, with the Agency and the children, were maintained. J.C. frequently wrote to the children, despite the fact that she received no letters from them. She also attempted, albeit unsuccessfully, to arrange at least one other visit. On the other hand, J.C.’s attempts to comply with the conditions of the Agency and its treatment plans were, for the most part, ineffectual, although not necessarily insincere.

In reviewing previous termination cases, we see that, in those cases where termination was proper, there was far less contact between the parent and the child than is true in the instant case. Conversely, in those cases where an order of termination was reversed (or where the lower court refused to order termination), there was greater success in meeting the goals required by the court or the agency. These previous cases were, of course, decided under the less stringent preponderance of the evidence burden of proof, rather than the clear and convincing standard required by Santosky, supra. Because the parties should have the benefit of this stricter standard of proof at the trial level, see Santosky, supra, 455 U.S. at 757, 102 S.Ct. at 1396, 71 L.Ed.2d at 609, and because the trial court is in a better position to assess the credibility of the witnesses, we must vacate the order of termination and remand this case to the lower court for reconsideration in light of Santosky, supra.

The final ground on which the lower court ordered termination in this case is that the repeated and continued incapacity and neglect of J.C. caused the children to be without essential parental care and the conditions and causes of this incapacity and neglect cannot be remedied. 23 Pa.C.S.A. § 2511(a)(2). We believe our previous analysis of Santosky, supra, applies as well to termination on this basis.

For these reasons, we reverse the order of termination under 23 Pa.C.S.A. § 2511(a)(5) and vacate the order of termination under 23 Pa.C.S.A. § 2511(a)(1) and (2) and remand for reconsideration in light of Santosky, supra. We relinquish jurisdiction.

      . The parental rights of the natural father were terminated in the same order on the basis that he, by conduct which continued for a period in excess of six months, has evidenced a settled purpose of relinquishing parental claim to the children, and has failed to perform parental duties. 23 Pa.C.S.A. § 2511(a)(1). He had not seen the children in over a year, did not appear to contest the involuntary petition and advised the agency that he did not want the children.

      . A third child, J.C. II, age 16, was also in foster care at this time. She returned to her mother in December of 1981 and was residing with J.C. at the time of the termination hearing.

      . At some time prior to the weekend visits, it was discovered that both children had diabetic conditions which necessitated a regular balanced diet with little or no sweets. Apparently, however, their diet was not calorically restricted. There was much conflicting testimony as to whether the children were properly fed when visiting with J.C. and this apparently influenced the decision to terminate visits. Also, although the caseworker testified she explained the dietary restrictions to J.C., nutritional counseling was available only in Erie and not in Corry. J.C.’s testimony was that she did ask her family doctor about a diabetic diet and was advised that the children were not on a special diet.

      . For example, J.C. did request a visit during the children’s Easter vacation. Unfortunately, the letter, which was dated April 17, was received by the Agency on April 20 but did not reach J.C.’s caseworker until April 21 by which time the Easter vacation was over. It should also be noted that neither J.C., nor her mother with whom she often resided, owned a car. An additional problem with scheduling visits was that J.C. did not have a phone and relied on letters for contacting the Agency and the children.

      . For a variety of reasons, including, no doubt, the fact that J.C.’s income was unstable and inadequate, J.C. had moved quite frequently during the time the children were in foster care. Some of these moves were to Erie in an attempt to be closer to the children.

      . See fn. 3.

      . J.C. had left the Center in July of 1979 due to her having contracted scabies. She also worked briefly at the Erie Center. By the time this plan was proposed, J.C. was again living in Corry and there were no openings at the Corry Center.

      . It is interesting to note that, after each review hearing, additional conditions were imposed on J.C. as prerequisites to the return of her children. In addition, the Agency provided very little, if any, assistance to J.C. in fulfilling these conditions.

      . The children’s decision was apparently the result of their having received letters from J.C. promising visits which never materialized. The caseworker subsequently testified that the children enjoyed visiting with J.C.

      . We discuss below the United States Supreme Court’s decision that clear and convincing evidence must underlie a determination to terminate parental rights. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). We do not find it necessary to discuss this holding in connection with this first basis for terminating J.C.’s parental rights since we are unable to find that even a preponderance of the evidence supports the lower court’s order under 23 Pa.C.S.A. § 2511(a)(5).

      . The lower court's opinion does not specify the standard by which the court evaluated the evidence. The instant matter was, however, decided prior to Santosky, supra.

      . See, e.g., In re L.A.G., 490 Pa. 85, 415 A.2d 44 (1980) (no contact with child or agency for eleven months); In re Adoption of Y.S., 487 Pa. 99, 408 A.2d 1373 (1979) (no contact with child or foster parents for over a year); In re W.M. III, 482 Pa. 123, 393 A.2d 410 (1978) (no contact with nor interest in child for eight years); In re Burns, 474 Pa. 615, 379 A.2d 535 (1977) (no contact with children or agency for ten months).

      . See, e.g., In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981) (parents obtained more suitable housing and purchased a crib for the child); In re Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977) (although child abused by stepfather, mother encouraged stepfather to obtain counseling and subsequently lived apart from stepfather); In re Howard, 468 Pa. 71, 360 A.2d 184 (1976) (mother had obtained full-time employment and suitable housing and was engaged to marry a soldier who had a good job awaiting him upon his discharge).

      . As noted in Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981) , it has long been recognized that a party whose case is pending on direct appeal is entitled to the benefit of changes in the law occurring before final judgment. Therefore, the requirement of clear and convincing evidence enunciated in Santosky, supra, must be applied to the instant case. See also, Appeal of G.J.A., 304 Pa.Super. 21, 450 A.2d 80 (1982).

      . Because of our disposition, we need not discuss whether J.C. had been afforded a reasonable time in which to remedy the conditions of incapacity and neglect which allegedly caused her children to be without parental care. In this regard, however, we find it noteworthy that, in a case decided during the pendency of this appeal, a period of two and one-half years was held to be reasonable under all the circumstances. In re Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982).


author: LIPEZ, Judge:

text:
    455 A.2d 1224
    COMMONWEALTH of Pennsylvania v. William CORONETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 7, 1981.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Denied June 3, 1983.

      Theodore Simon, Philadelphia, for appellant.
    Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   LIPEZ, Judge:

In a trial without a jury, William Coronett was convicted of simple assault, 18 Pa.C.S. § 2701, and was sentenced to two years’ probation. He appeals from the judgment of sentence, arguing: 1) that the prosecution for simple assault and other indictable offenses was barred due to the former prosecution of traffic violations arising out of the same incident; and 2) that the Commonwealth’s evidence was insufficient to prove beyond a reasonable doubt that he was not acting in self-defense. We affirm.

The incident giving rise to the charges in this case occurred on July 4, 1978, in Philadelphia. Appellant was driving east on Market Street in heavy Independence Day traffic. When he reached the corner of Third and Market Streets, Philadelphia Police Officer Patrick Cubbage, who was directing traffic at that intersection, indicated that all traffic should make a left turn to proceed north on Third Street. Appellant, however, wished to stay on Market Street and disregarded Officer Cubbage’s directions, continuing to drive east through the intersection. Cubbage motioned to Officer Harold Bias, stationed at the next corner, to stop appellant’s car. Bias did so, and told appellant that Cubbage wanted to speak to him. Appellant began to back up at a high rate of speed to return to where Cubbage was standing. Cubbage, believing that appellant was trying to hit him with the car, drew his gun and ordered him to stop. Appellant did so, but as Cubbage was returning his gun to its holster, he got out of the car and struck Cubbage in the face with his open hand. The two police officers then subdued and arrested appellant.

On July 4, Cubbage issued citations to appellant for three Motor Vehicle Code violations (hereinafter referred to as “traffic offenses”): failure to obey an officer’s signals, reckless driving, and driving without a license. He also filed a criminal complaint on that date, charging appellant with attempted murder, aggravated assault, simple assault, recklessly endangering another person, and resisting arrest (hereinafter referred to as “indictable offenses”). Authorization to issue process pursuant to the complaint was given on July 5, 1978.

After a preliminary hearing on August 21, 1978, defendant was held for trial in common pleas court on the indictable offenses. The traffic offenses were tried separately on August 28, 1978, in Philadelphia Traffic Court, and appellant was found guilty only on the charge of failing to obey an officer’s signal. On October 5, 1978, appellant moved to dismiss the criminal informations on the indictable offenses, contending that their prosecution was barred by the prior trial of the traffic offenses. This motion was denied, and the case proceeded to trial, resulting in the conviction and judgment of sentence now before us for review.

Appellant’s first argument is that the lower court erred in denying his motion to dismiss the informations on the indictable offenses. He contends that the prosecution of these offenses was barred under the compulsory joinder principles of section 110 of the Crimes Code and the decisions of the Pennsylvania Supreme Court in Commonwealth v. Campana because he had previously been convicted of traffic offenses arising from the same criminal episode. We must disagree. We conclude that although the prosecution of the traffic offenses was prior to that of the indictable offenses , resulted in a conviction, and arose out of the same criminal episode, section 110 did not bar the subsequent prosecution of the indictable offenses because all the charges were not within the jurisdiction of a single court.

In Commonwealth v. Masterson, 275 Pa.Super.Ct. 166, 418 A.2d 664 (1980), this court considered the interplay of section 110 and the jurisdictional scheme of the Philadelphia court system in a case where summary traffic charges and misdemeanor charges were brought against a defendant as a result of a single criminal episode. After a careful examination of the jurisdictional provisions of the Schedule to Article V of the Pennsylvania Constitution and the Traffic Court Act of Philadelphia, the Masterson panel concluded that no one court in Philadelphia had jurisdiction over both classes of crimes.

Although our decision in this case is governed by the Judicial Code, relevant provisions of which went into effect on June 27, 1978, rather than the constitutional and statutory provisions considered in Masterson, the Judicial Code effected no change in the jurisdiction of Philadelphia courts which would warrant a departure from the precedent established in Masterson. Appellant claims that all the charges against him could have been brought in a single proceeding in common pleas court. However, the applicable jurisdictional statutes contradict this assertion. Common pleas courts have unlimited original jurisdiction of all actions and proceedings except where exclusive original jurisdiction of an action or proceeding is vested in another court. 42 Pa.C.S. § 931. With regard to traffic offenses, original jurisdiction is vested in traffic courts where they exist and this jurisdiction is exclusive of the courts of common pleas. 42 Pa.C.S. § 1302. The language of the Judicial Code thus unequivocally supports the Masterson holding, and our decision here is controlled by that holding.

Appellant’s contention that this result is contrary to language in the Supreme Court’s Campana I decision is merit-less. Although the court in Campana I found it “clear that both summary offenses and indictable offenses may be considered at a single common pleas proceeding,” id. 452 Pa. at 253, 304 A.2d at 441, the summary offenses dealt with in that case were not traffic offenses. Non-traffic summary offenses are within the jurisdiction of the Municipal Court of Philadelphia, whose jurisdiction is concurrent with that of the courts of common pleas in such matters. 42 Pa.C.S. § 1123(b). The situation addressed in Campana is thus clearly distinguishable from that presented here, where exclusive jurisdiction of the summary traffic offenses is vested in a separate court.

It should also be noted that the setting of this case within the framework of the Philadelphia court system distinguishes it from recent decisions of this court holding that disposition of traffic offenses could bar the subsequent prosecution of indictable offenses. Both Commonwealth v. Corish, 306 Pa.Super.Ct. 70, 452 A.2d 7 (1982) and Commonwealth v. Breitegan, 276 Pa.Super.Ct. 181, 419 A.2d 155 (1980) involved proceedings in jurisdictions without separate traffic courts. The problems of exclusive jurisdiction vested outside the court of common pleas were thus not involved in those cases.

We conclude that the precedent established in Masterson is applicable to this case and is in harmony with other decisions of this court interpreting section 110 of the crimes code. We therefore hold that the prosecution of misdemeanor charges against appellant was not barred by the prior adjudication of traffic charges against him because no single court had jurisdiction over both types of offenses.

Appellant’s second contention is that the Commonwealth’s evidence was insufficient to prove that his actions were not in self-defense. In assessing this claim, we must view the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). The conviction must be upheld if, accepting as true all the evidence which could properly have been the basis for the verdict, the finder of fact could reasonably find that appellant’s claim of self-defense had been disproved beyond a reasonable doubt. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068, cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978); Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968).

The Commonwealth’s evidence indicates that appellant had been stopped by a uniformed police officer after violating traffic directions given by Officer Cubbage, who was also in uniform. Although Cubbage had at one point drawn his revolver, he was in the process of returning it to the holster when appellant got out of the car and struck him. A fact finder could reasonably conclude that any threat of force had ceased by the time appellant acted and thus that his use of force was not immediately necessary for self-protection. See 18 Pa.C.S. § 505(a). Moreover, the fact that appellant’s actions were directed towards a uniformed police officer greatly diminishes any possible justification for them. The applicable statute makes the use of force in self-defense permissible only against unlawful force, 18 Pa.C.S. § 505(a), and explicitly provides that the use of force to resist an arrest, even an unlawful one, is not justified, 18 Pa.C.S. § 505(b)(l)(i). We therefore conclude that the evidence adduced by the Commonwealth was sufficient to prove beyond a reasonable doubt that appellant’s actions were not excused as being in self-defense.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 110 provides in pertinent part:
      Although a prosecution is for violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
      (1) The former prosecution resulted in an acquittal or in a conviction ... and the subsequent prosecution is for:
      (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court....

      . 452 Pa. 233, 304 A.2d 432, vacated and remanded for clarification, 414 U.S. 803, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) (Campana I), on remand, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (Campana II). Appellant asks us to consider his claim in light of both section 110 and the Pennsylvania Supreme Court’s opinion in Campana I. In Campana II, however, the court explicitly found its holding in that case to be “entirely in harmony" with section 110, which had been enacted in the period between the two Campana decisions. Id. 455 Pa. at 626, 314 A.2d at 856. Hence this court has held that where compulsory joinder issues are presented, a consideration of section 110 will suffice to address the essentially coextensive requirements of Campana. See Commonwealth v. Green, 232 Pa.Super.Ct. 134, 139, 335 A.2d 493, 495 (1975). We will therefore examine appellant’s claims only in light of section 110.

      . The Commonwealth argues that the prosecution of the traffic offenses was not truly prior to that of the indictable offenses because the criminal complaint was filed on the same day that the traffic citations were issued. Authorization to issue a warrant or summons based on the complaint was not given until the following day, however. The Crimes Code provides that a prosecution commences either when an indictment is found or when a warrant or summons is issued. 18 Pa.C.S. § 108(e). It is thus clear that the prosecution of the traffic offenses in fact began one day before that of the indictable offenses. See Commonwealth v. Erisman, 247 Pa.Super.Ct. 476, 372 A.2d 925 (1977).

      . In Campana I, the Supreme Court quotes with approval the definition of an "episode” set out in the commentary to Section 1.3(a) of the ABA Standards Relating to Joinder and Severance: "an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series." Id. 452 Pa. at 248, 304 A.2d at 439. The Campana 1 court also approves a “same transaction” or "same set of operative facts” standard for determining when multiple offenses are sufficiently related to fall within the compulsory joinder rule. Under any of these standards, the traffic offenses and indictable offenses in this case arose out of the same criminal episode.

      . Superseded and suspended by section 26(a) of Act 1976, July 9, P.L. 586 No. 142, the Judiciary Act of 1976, generally effective June 27, 1978.

      . 17 P.S. § 712.1 etseq., repealed by section 2(a) of Act 1978, April 28, P.L. 202, No. 53, effective June 27, 1978. Replaced by 42 Pa.C.S. § 1302, Act 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978, as amended 1978, April 28, P.L. 202, No. 53 § 10(15), effective June 27, 1978.

      . Since the incident which gave rise to this case occurred on July 4, 1978, after the repeal of the Traffic Court Act and the effective date of the Judicial Code, appellant’s claim that the Traffic Court Act should be applied is without merit.

      . Although in Commonwealth v. Dickerson, 303 Pa.Super.Ct. 46, 449 A.2d 570 (1982), the offenses occurred and were tried in a jurisdiction that did have a separate traffic court, the panel of this court did not address the issue of whether all the offenses were within the jurisdiction of a single court. It is apparent that in Dickerson this issue was not raised. Where it is raised, Masterson remains the controlling law.


author: WIEAND, Judge:

text:
    455 A.2d 1228
    Estelle E. YOUNG and Beverly J. Ruane, Appellants, v. Vincent PILEGGI.
    Superior Court of Pennsylvania.
    Argued May 24, 1982.
    Filed Jan. 28, 1983.

      Robert J. Donaghy, Philadelphia, for appellants.
    John C. Keir, Philadelphia, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Vincent Pileggi executed and delivered to Estelle E. Young and Beverly J. Ruane a judgment note for $10,-000.00. On July 16, 1979, after Pileggi had failed to make any payment thereon for more than 3A years, a judgment was confessed against him for the principal amount, plus interest and counsel fees. Pileggi filed a petition to open the judgment alleging (1) duress, (2) absence of consideration, and (3) failure to join Beverly J. Ruane, his former wife, as a party defendant. Depositions were taken, argument was held, and the trial court entered an order opening the judgment. This appeal followed. We conclude that opening the judgment was an abuse of discretion. Therefore, we reverse and reinstate the judgment.

In Tenreed Corporation v. Philadelphia Folding Box Company, 256 Pa.Super. 49, 53, 389 A.2d 594, 596-597 (1978), this Court said:

“It is now well-established that a petition to open a judgment by confession is an appeal to the sound discretion of the lower court. Foerst v. Rotkis, 244 Pa.Super. 447, 368 A.2d 805 (1976); Christie v. Open Pantry Food Marts, Inc., 237 Pa.Super. 243, 352 A.2d 165 (1975); Wolgin v. Mickman, 233 Pa.Super. 218, 335 A.2d 824 (1975). In order for such a petition to prevail, the judgment debtor must act promptly and produce evidence in support of a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Walnut-Juniper Co. v. McKee, Berger & Mansueto, Inc. 236 Pa.Super. 1, 344 A.2d 549 (1975); Joseph A. Puleo & Sons, Inc. v. Rossi, 234 Pa.Super. 612, 340 A.2d 557 (1975); Ritchey v. Mars, 227 Pa.Super. 33, 324 A.2d 513 (1974).”

The evidence concerning the defense must be such as would require submission of the issue to a jury. Pa.R.C.P. 2959(e). See also: Reliance Insurance Company v. Liberati, 489 Pa. 591, 414 A.2d 1049 (1980); Weitzman v. Ulan, 304 Pa.Super. 204, 212, 450 A.2d 173, 176 (1982); Citizens National Bank of Evans City v. E.H. Bilowich Construction Corporation, 303 Pa.Super. 193, 197, 449 A.2d 644, 646 (1982); First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 192, 438 A.2d 600, 602 (1981); Price v. Geller, 292 Pa.Super. 455, 458, 437 A.2d 763, 764 (1981); Lincoln Bank v. Kelly, 282 Pa.Super. 261, 268, 422 A.2d 1106, 1110 (1980).

In the instant case, there is no dispute about the timeliness of appellee’s petition to open. The judgment was confessed on July 17, 1979, and a petition to open was filed on July 25, 1979. The issue, rather, is whether appellee has shown that he has a defense to payment of the note.

Vincent Pileggi and Beverly J. Ruane were formerly husband and wife. They were married on September 9, 1950, separated in May, 1966, and divorced in August, 1968. Estelle E. Young is the mother of Beverly Ruane. During her daughter’s marriage to Pileggi, she made various advances of money. Some were intended as loans and were to be re-paid; others may have been gifts. Some advances were made to her daughter, others were made to her son-in-law, and some were made jointly to her daughter and son-in-law. After the separation, Mrs. Young began making demands on her son-in-law to repay the loans made to him. On October 1, 1975, a judgment note was prepared by Mrs. Young’s attorney and signed by Pileggi. The note was for $10,000.00 and named Beverly Ruane and her mother as payees. It was this note on which judgment was confessed on July 17, 1979.

The trial court concluded that Pileggi’s evidence, if believed, established that the judgment note had been executed under duress. We are constrained to disagree. “Duress has been defined as that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness____ The quality of firmness is assumed to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm ... Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness____ Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel.” Carrier v. William Penn Broadcasting Company, 426 Pa. 427, 431, 233 A.2d 519, 521 (1967), quoting from Smith v. Lenchner, 204 Pa.Super. 500, 504, 205 A.2d 626, 628 (1964). A threat to institute a civil suit to enforce a right or prevent a wrong does not constitute duress. Carrier v. William Penn Broadcasting Company, supra 426 Pa. at 431, 233 A.2d at 521; Irwin v. Weikel, 282 Pa. 259, 127 A. 612 (1925); Kaylor v. Central Trust Co. of Harrisburg, 154 Pa.Super. 633, 36 A.2d 825 (1944). See also: Hastain v. Greenbaum, 205 Kan. 475, 470 P.2d 741 (1970). Similarly, potential embarrassment which may be caused by the filing of a civil action does not constitute duress. See: Oleet v. Pennsylvania Exchange Bank, 285 App.Div. 411, 414-15, 137 N.Y.S.2d 779, 783 (1955).

Business compulsion is a species of duress. “The important elements in the applicability of the doctrine of economic duress or business compulsion are that (1) there exists such pressure of circumstances which compels the injured party to involuntarily or against his will execute an agreement which results in economic loss, and (2) the injured party does not have an immediate remedy.” Litten v. Jonathan Logan, Inc., 220 Pa.Super. 274, 282, 286 A.2d 913, 917 (1971) (emphasis in original). “ ‘Business compulsion’ is not established merely by proof that consent was secured by the pressure of financial circumstances____ [TJhere must be more than a mere threat which might possibly result in injury at some future time, such as a threat of injury to credit in the indefinite future. It must be such a threat that, in conjunction with other circumstances and business necessity, the party so coerced fears a loss of business unless he does so enter into the contract as demanded.” National Auto Brokers Corporation v. Aleeda Development Corporation, 243 Pa.Super. 101, 109-110, 364 A.2d 470, 474 (1976), allocatur denied, quoting Tri-State Roofing Co. v. Simon, 187 Pa.Super. 17, 20, 142 A.2d 333, 335 (1958). Moreover, it was long ago held that a contract signed because a party is in pressing financial circumstances and subject to embarrassment, where the other party is not responsible for those circumstances and did not create the embarrassment, is not an adequate basis on which to avoid the contract. French v. Shoemaker, 81 U.S. 314 (14 Wall. 314), 20 L.Ed. 852 (1872). In short, “ ‘[bjusiness compulsion’ is not established merely by proof that consent was secured by the pressure of financial circumstances or by the fact that one party insisted upon a legal right and the other party yielded to such insistence.” 25 Am.Jur.2d, Duress and Undue Influence § 7. See also: French v. Shoemaker, supra; Production Credit Asso. of Minot v. Geving, 218 N.W.2d 185 (N.D.1974); Gill v. S.H.B. Corp., 322 Mich. 700, 34 N.W.2d 526, 7 A.L.R.2d 252 (1948); Norton v. Michigan State Highway Dept., 315 Mich. 313, 24 N.W.2d 132 (1946); Anno., Economic Duress or Business Compulsion in Execution of Promissory Note, 79 A.L.R.3d 598 (1977).

Appellee contends that he signed the judgment note under duress because Mrs. Young’s attorney had threatened legal action which, he said, “could put me in bankruptcy.” He also testified in depositions that his partner in a restaurant business “became very upset” because he feared that the restaurant would be attached. Finally, he testified that Young’s attorney told him that it would be embarrassing for his sons to know that he had not assumed his obligations. This was insufficient to warrant submitting to a jury the defense of duress.

Neither the threat of legal action nor difficult financial circumstances verging on insolvency constituted legal duress. Similarly, appellee’s fear of the potential embarrassment of bankruptcy was insufficient, particularly where, as here, appellee’s own attorney had recommended that he consider bankruptcy. Appellee argues, however, that the Young claims were barred by the statute of limitations and that the threat of legal action, therefore, was voiced in bad faith. We find it unnecessary to consider whether the debts were barred in fact, for, in any event, it is clear that Pileggi was free to consult his own attorney regarding the validity of the Young claims. So also, neither a partner’s concern that appellee’s interest in a joint business venture was susceptible to attachment to pay appellee’s debts nor a child’s opinion regarding a father’s failure to pay his obligations, although recognizably matters of concern to a debtor, constituted a sufficient basis on which to hold a promissory note voidable for duress. It seems clear, therefore, that appellee failed to produce evidence sufficient to require that his averment of duress be submitted to a jury.

Appellee argued in the court below, although the trial court did not pass thereon, that the judgment note was not supported by consideration because the debts for which it had been given were barred by the statute of limitations. The law is clear, however, that a moral obligation founded upon antecedent valuable consideration will support an express promise to pay. Estate of Wolf v. Commissioner of Internal Revenue, 264 F.2d 82 (3rd Cir.1959) (applying Pennsylvania law); Stelmack v. Glen Alden Coal Co., 339 Pa. 410, 415, 14 A.2d 127, 129 (1940); Volkwein v. Voir kwein, 146 Pa.Super. 265, 271, 22 A.2d 81, 85 (1941); Stebbins v. County of Crawford, 92 Pa. 289, 292-293 (1879). A moral obligation to pay constitutes sufficient consideration to sustain a new promise to pay a debt barred by the statute of limitations. Restatement (Second) of Contracts, § 82; 8 P.L.E., Contracts, § 63. See also: Slayton v. Slayton, 55 Ala.App. 351, 353-54, 315 So.2d 588, 590 (1975); Orsborn v. Old National Bank of Washington, 10 Wash. App. 169, 516 P.2d 795 (1973).

Moreover, the judgment note in this case was under seal. A seal imports consideration, see, e.g., Brereton Estate, 388 Pa. 206, 210, 130 A.2d 453, 456 (1957); Barnhart v. Barnhart, 376 Pa. 44, 56, 101 A.2d 904, 909 (1954); Newman v. Sablosky, 268 Pa.Super. 85, 90, 407 A.2d 448, 451 (1979), allocatur denied; and want of consideration, as distinguished from failure of consideration, is not a defense to an action at law on a sealed document. Barnhart v. Barnhart, supra, 376 Pa. at 56, 101 A.2d at 909. See and compare: George W. Kistler, Inc. v. O’Brien, 464 Pa. 475, 485 n. 5, 347 A.2d 311, 316 n. 5 (1975); Community Sports, Inc. v. Denver Ringsby Rockets, Inc., 429 Pa. 565, 574 n. 5, 240 A.2d 832, 836 n. 5 (1968); Newman v. Sablosky, supra 268 Pa.Super. at 90, 407 A.2d at 451. Therefore, want of consideration was not available to appellee as a defense to payment of the confessed judgment.

Finally, appellee contends that the judgment cannot be enforced against him alone because some or all of the antecedent obligation was owed jointly by him and his former wife, Beverly J. Ruane. There is no merit in this contention. The instant judgment was confessed on a note signed solely by appellee. He is the sole obligor thereon. The validity of the note is not affected because the person to whom the antecedent obligation was owed added to the note the name of a co-obligee acceptable to her. The mere fact that appellee may have a possible cause of action against his former wife if he pays more than his share of a joint obligation is not an adequate reason for opening judgment confessed on appellee’s written obligation. If such a claim can be shown to exist, it can be pursued in a separate action.

The order opening the judgment is vacated, and said judgment is reinstated.

      . Mrs. Young’s daughter made purchases from time to time by making use of her mother's credit cards.

      . On April 7, 1959, a loan of $6,000.00 was made by Young to Pileggi, evidenced by bond and secured by mortgage. Another loan of $2,000.00 was made to Pileggi in 1963 for use in his hairdressing business. Also, on September 16, 1966, Pileggi executed and delivered to Young a promissory note for $4,987.65.

      . Rental payments were unpaid under leases executed by both Pileggi and his wife.