author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    667 A.2d 215
    COMMONWEALTH of Pennsylvania v. Barry WIDMER, Jr., Appellant, COMMONWEALTH of Pennsylvania, Appellant, v. Barry WIDMER, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued June 22, 1995.
    Filed Oct. 2, 1995.
    Reargument Denied Dec. 8, 1995.

      Patrick J. Connors, Media, for Barry Widmer, Jr.,
    Dennis C. McAndrews, Assistant District Attorney, Wayne, for Commonwealth.
    Before CAVANAUGH, WTEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Barry Widmer, Jr. was tried by jury and was found guilty of rape and two counts of indecent assault. He was sentenced on his rape conviction to partial confinement for a term of not less than thirty-six (36) months nor more than seventy-two (72) months, pursuant to which he was to be furloughed every week from 8:00 a.m. Monday until 6:00 p.m. Friday. He was also ordered to make restitution to the victim, to pay the costs of prosecution and to perform three hundred fifty (350) hours of community service. Subsequently, pursuant to defense motion, Widmer’s sentence of partial confinement was modified to a period of not less than thirty (30) months minus one (1) day nor more than sixty (60) months minus one (1) day, with furloughs to commence every week from 6:00 p.m. Monday until 6:00 p.m. Friday. All other aspects of the original sentence remained unchanged. Thereafter, the Commonwealth filed a motion for modification of sentence, and, when that motion was denied, both the Commonwealth and Widmer timely filed direct appeals.

Widmer’s Appeal

On appeal, Widmer has raised the following. issues for review:

I. Whether the Trial Court erred in instructing the jury that, with regard to the offense of Rape of an unconscious victim, the term “unconscious” included a sleeping person.
II. Whether the evidence was insufficient to sustain the conviction of Rape since the Commonwealth failed to prove beyond a reasonable doubt that Ms. McCusker was “unconscious” as that term is used in 18 Pa.C.S. § 3121(3).
III. Whether the verdicts herein were against the weight of the evidence since the evidence clearly showed that the sexual relations engaged in by the parties were consensual in nature.
IV. Whether the Trial Court erred when it precluded Appellant from introducing evidence that Ms. McCusker had a proclivity toward “adventuresome” sexual conduct.

In reviewing a challenge to the sufficiency of the evidence to sustain a criminal conviction, this Court must:

determine “whether, viewing all the evidence admitted at ■trial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, the jury could have found that each and every element of the charged offenses was proved beyond a reasonable doubt.” Commonwealth v. Sanchez, 416 Pa.Super. 160, 166, 610 A.2d 1020, 1023 (1992). See also: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

Commonwealth v. Battiato, 422 Pa.Super. 285, 289, 619 A.2d 359, 360-361 (1993).

On the evening of July 29, 1993, Widmer and two friends, Rob Mullin and Edward Brown, went to the home of Widmer’s uncle, Charles Cress, in Drexel Hill, Upper Darby Township, for the purpose of celebrating Widmer’s twenty-first birthday. Among those present at Cress’s home were David McAndrew, who also resided there, and McAndrew’s girlfriend, Joanna McCusker. After about an hour of drinking, Widmer, Cress, Mullin, Brown and McAndrew went out to a bar to continue their celebration. They remained at the bar for approximately three to three and one-half hours and, then, the group returned to the home of Cress and McAndrew. Widmer went upstairs to use the bathroom, and, after he had been gone for what seemed to be a long time, McAndrew went upstairs to check his whereabouts. Upon doing so, McAndrew found Widmer in McAndrew’s bedroom engaged in sexual intercourse with McCusker. Widmer then left the house and McAndrew retrieved a handgun and followed him. Outside McAndrew threatened to kill Widmer, who, after pleading with McAndrew not to shoot him, left the scene with Mullin and Brown. At trial, Widmer testified that he and McCusker had engaged in consensual intercourse. McCusker, however, said that she had been sleeping and had awakened to find Widmer on top of her with his penis in her vagina. According to McAndrew, he entered his bedroom and found Widmer on top of McCusker, with McCusker hitting Widmer on the chest. Widmer had then rolled off McCusker onto the floor. He looked up at McAndrew and appeared to be scared. After Widmer had fled the room, McAndrew said that McCusker had been shaking and crying.

Widmer was convicted of rape under 18 Pa.C.S. § 3121(3), which provides as follows:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(3) who is unconscious----

Widmer argues that the evidence at his trial was insufficient to sustain his conviction under subsection (3) of the rape statute because a person who is sleeping is not “unconscious” as that term is used in the statute.

In Commonwealth v. Price, 420 Pa.Super. 256, 616 A.2d 681 (1992), the Superior Court considered this precise issue and “conclude[d] that a sleeping victim is ‘unconscious’ under § 3121(3).” Id. at 262, 616 A.2d at 683. The Price Court reasoned as follows:

[W]e hold here that the subsection proscribing intercourse with “unconscious” persons was enacted to proscribe intercourse with persons unable to consent because of their physical condition.
Webster defines “unconscious” as “not knowing or not perceiving: unaware.” Webster’s New Collegiate Dictionary, 9th Ed. Thus, consistent with the common definition of “unconscious,” and the legislative intent behind the rape statute, we hold that engaging in sexual intercourse with a sleeping victim was intended to be proscribed by § 3121(3). A person v/ho is asleep is certainly unaware of her surroundings and unable to protect against the serious personal intrusion caused by non-consensual intercourse.

Id. at 262, 616 A.2d at 784 (footnote omitted). See: Toll, Pennsylvania Crimes Code Annotated, § 3121, at p. 368, quoting Model Penal Code Comment: [T.D. No. 4, pp. 246-256] (18 Pa.C.S. § 3121(3) “takes care of the situations where the woman is asleep or unconscious.”) (footnote omitted). Although Widmer attempts to distinguish Price on its facts, it is clear that the rationale of Price is controlling. Inasmuch as the evidence, when viewed in the light most favorable to the Commonwealth, established that Widmer had engaged in non-consensual sexual intercourse with Joanna McCusker while she slept, the evidence was sufficient to establish Widmer’s guilt under 18 Pa.C.S. § 3121(3).

Having concluded that the term “unconscious”, as used in 18 Pa.C.S. § 3121(3), includes a victim who is sleeping at the time the intercourse occurs, it necessarily follows that the trial court did not err by instructing the jury that, for purposes of applying 18 Pa.C.S. § 3121(3), “a sleeping victim is unconscious.” This was a correct statement of the law. “A jury instruction given by the trial court will be upheld so long as it ‘sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.’ ” Commonwealth v. Calderini, 416 Pa.Super. 258, 266, 611 A.2d 206, 210 (1992), quoting Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990).

Widmer further contends that the jury’s verdicts of guilty were contrary to the weight of the evidence in that his testimony was more credible than that of the victim. This issue, however, was not presented to the trial court in a post-sentence motion for a new trial, but, rather, was first raised in Widmer’s statement of matters complained of on appeal. With respect thereto, the trial court observed as follows in its opinion pursuant to Pa.R.A.P. 1925(a):

It is this Court’s unshakable opinion that the weight of the evidence lies clearly in Mr. Widmer’s favor. “ ‘A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and [make] the award of a new trial ... imperative so that right may be given another opportunity to prevail.’” [Commonwealth v. Horton, supra, 434 Pa.Super. 478, 482, 644 A.2d 181, 183, (1994)] quoting Commonwealth v. Whitney, 512 A.2d 1152, 1155-56, 511 Pa. 232, 239 (1986). This Court’s sense of justice was indeed shocked. Defendant, by taking a direct appeal, has deprived this court of the opportunity to act on the weight of the evidence question, and left this court with only the ability to express its view on this issue by addressing it in response to the Defendants concise statement of matters complained of on appeal. Although under the new rules governing appellate procedure, a defendant may bypass the Court of Common Pleas and appeal directly to Superior Court, it is important that the Superior Court be aware of the fact that if Mr. Widmer had moved for a new trial based upon the weight of the evidence, this Court most certainly would have granted his motion.

Trial Court Opinion at pp. 28-29 (emphasis added).

The Commonwealth argues that Widmer has waived any challenge to the weight of the evidence by failing to file a post-sentence motion for a new trial in the trial court. Recently, in Commonwealth v. Hodge, 441 Pa.Super. 653, 658 A.2d 386 (1995), the Superior Court held that it could not consider, in the first instance, a challenge to the weight of the evidence if it had not first been directed to the trial court via a post-sentence motion for new trial under Pa.R.Crim.P. 1410. The Hodge Court reasoned as follows:

Appellant has raised the issue of the weight of the evidence for the first time on appeal. He elected under Pa.R.Crim.P. 1410 not to file optional post-sentence motions, but, instead, filed an immediate notice of appeal after sentence had been imposed. Therefore, the trial court was never given an opportunity to exercise its discretion in determining whether appellant should be awarded a new trial on grounds that the verdict was contrary to the weight of the evidence. Appellant suggests, however, that, because he exercised his right to file an immediate appeal, this Court should now take the place of the trial court and review in the first instance whether the jury’s verdicts were contrary to the weight of the evidence. Absent such a review, he contends, a defendant who elects under Rule 1410 to take an immediate appeal will effectively be precluded from challenging the weight of the evidence.

In Commonwealth v. Brown, 538 Pa. 410, 434-440, 648 A.2d 1177, 1189-1191 (1994), the Pennsylvania Supreme Court made clear that challenges to the weight of the evidence must first be presented to the trial court. An appellate court may only review the trial court’s exercise of discretion in granting or denying a new trial on grounds that the verdict was contrary to the weight of the evidence; it may not address “the underlying question whether the verdict is against the weight of the evidence.” Id. at 436, 648 A.2d at 1189. In so holding, the Supreme Court observed that:

‘An allegation that the verdict is against the “weight” of the evidence is a matter to be resolved by the trial court:
While there may be some legitimacy for a trial court, who [sic] has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying upon a cold record, to exercise such a function.
Commonwealth v. Farquharson, 467 Pa. 50, 59-60, 354 A.2d 545, 550 (1976).’

Id. at 437-438, 648 A.2d at 1190, quoting Commonwealth v. Karkaria, 533 Pa. 412, 418-419 n. 3, 625 A.2d 1167, 1170 n. 3 (1993). The Brown court further declared that:

‘Unlike the challenge of legal sufficiency of the evidence, the complaint that the verdict was against the weight of the evidence requires an assessment of the credibility of the testimony offered by the Commonwealth. It is a rule of this Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record.” ’
Commonwealth v. Brown, supra at 438, 648 A.2d at 1191, quoting Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728, 733 n. 3 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987) (citations omitted).
It seems clear, therefore, that this Court cannot entertain, in the first instance, a request for a new trial on grounds that the verdict was contrary to the weight of the evidence. This is not an issue of waiver. Even though, as a general rule, a defendant need not file a post-sentence motion in order to preserve issues for appellate review, a weight of the evidence argument may be addressed only by a trial court. Therefore, a defendant, who wishes to seek a new trial on grounds that the verdict was contrary to the weight of the evidence, must necessarily raise this issue via post-sentence motion in the trial court. If the trial court denies the motion, the defendant may then file an appeal in which the trial court’s exercise of discretion will be subject to review. Because appellant did not challenge the weight of the evidence in the trial court in this case, we will not address the issue on appeal.

Commonwealth v. Hodge, supra at 658-660, 658 A.2d at 388-389 (footnote omitted).

Instantly, it was not adequate for Widmer to raise his challenge to the weight of the evidence in a statement of matters complained of on appeal under Pa.R.A.P. 1925(b). After Widmer had elected to file an immediate appeal, rather than file a post-sentence motion for a new trial, the trial court no longer had jurisdiction to act on the case. See: Pa.R.A.P. 1701(a). The trial court’s preparation of an opinion pursuant to Pa.R.A.P. 1925(a) did not present the court with jurisdiction to exercise discretion and rule upon Widmer’s claim with respect to the weight of the evidence. See: Commonwealth v. Picker, 293 Pa.Super. 381, 384-385, 439 A.2d 162, 164 (1981). Because there was no opportunity for the trial court, in its discretion, to grant or deny Widmer’s request for a new trial on grounds that the jury’s verdict was contrary to the weight of the evidence, there is no exercise of trial court discretion for this Court to review. And, pursuant to the holding of Commonwealth v. Hodge, this Court is precluded from reviewing the weight of the evidence on appeal. Therefore, we reject Widmer’s challenge to the weight of the evidence.

The final issue raised by Widmer concerns the trial court’s exclusion, under the Rape Shield Law, of evidence that the victim had a proclivity toward “adventuresome” sexual conduct. Specifically, Widmer sought to show that, approximately eleven hours prior to the alleged rape, the victim and her boyfriend had had a sexual encounter in a public swimming pool in view of many persons. Such evidence, Widmer argues, would have been relevant to prove consent in that the sexual encounter occurring between the victim and him was consistent with the victim’s appetite for “risky” sex.

The Rape Shield Law provides as follows:

§ 3104. Evidence of victim’s sexual conduct
(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

18 Pa.C.S. § 3104. “The purpose of the Rape Shield Law is to prevent a sexual assault trial from degenerating into an attack upon the victim’s reputation for chastity.” Commonwealth v. Berkowitz, 537 Pa. 143, 151, 641 A.2d 1161, 1165 (1994). See also: Commonwealth v. Johnson, 536 Pa. 153, 158, 638 A.2d 940, 942 (1994). However, the statute will not preclude the admission of evidence which is exculpatory in nature, “which directly negates the act of intercourse with which a defendant is charged.” Commonwealth v. Majorana, 503 Pa. 602, 611, 470 A.2d 80, 84 (1983). See also: Commonwealth v. Stansbury, 433 Pa.Super. 493, 498-499, 640 A.2d 1368, 1370-1371 (1994). Similarly, “[t]he Rape Shield Law is not meant to prevent the admission of evidence that goes to bias or motive for testifying against the defendant when it might be exculpatory as to the defendant and establish a motive for the victim to color her testimony.” Commonwealth v. Riley, 434 Pa.Super. 414, 420, 643 A.2d 1090, 1093 (1994). See: Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985) (en banc).

Instantly, the evidence of the victim’s prior sexual conduct with her boyfriend was not offered by Widmer for the purpose of demonstrating that he did not engage in sexual intercourse with the victim. Similarly, he was not seeking to demonstrate motive or bias on the part of the victim. Rather, Widmer was seeking to bolster his claim of consent by portraying the victim as having been sexually promiscuous. This, however, is precisely the type of evidence which the Rape Shield Law sought to exclude. Thus, in Commonwealth v. Dear, 342 Pa.Super. 191, 492 A.2d 714 (1985), the Superior Court held that evidence of a victim’s prior sexual conduct with third persons “is irrelevant to prove either consent or general moral defect of the victim[,]” and, therefore, such evidence is prohibited by the Rape Shield Law. Id. at 202, 492 A.2d at 720. The same rationale is controlling herein.

The Commonwealth’s Appeal

The Commonwealth argues in its appeal that the trial court abused its discretion by imposing a sentence which called for a minimum term of incarceration for only three hundred ninety (390) days or thirteen (13) months for the crime of rape. Because this issue raises a challenge to the discretionary aspects of sentence, we must first determine whether the Commonwealth has raised a substantial question that the sentence imposed upon Widmer was not appropriate under the Sentencing Code as a whole. See: Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

“Although the existence of a substantial question must be determined on a case by case basis, the Superior Court will generally review the discretionary aspects of sentencing where a colorable argument is made that the actions of the sentencing court were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Graft, 424 Pa.Super. 510, 520, 623 A.2d 341, 347 (1993). Here, in its concise statement under Pa.R.A.P. 2119(f), the Commonwealth has asserted that the trial court erroneously applied the Sentencing Guidelines, failed to state adequate reasons for departing from the guidelines and relied upon improper mitigating factors in imposing sentence. Because we deem these issues to constitute substantial challenges to the appropriateness of the sentence imposed upon Widmer, we will allow this appeal by the Commonwealth from the discretionary aspects of sentencing.

Our review of a sentence imposed by a trial court is guided by the following principles:

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of that discretion.” Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988). See also: Commonwealth v. Hunter, 381 Pa.Super. 606, 618-619, 554 A.2d 550, 556 (1989); Commonwealth v. Fries, 362 Pa.Super. 163, 167, 523 A.2d 1134, 1135 (1987). However, the sentencing court must state its reasons for the sentence on the record, which in turn aids in determining “whether the sentence imposed was based upon accurate, sufficient and proper information,” Commonwealth v. Riggins, 474 Pa. 115, 131, 377 A.2d 140, 148 (1977). See also: Commonwealth v. Thomas, 370 Pa.Super. 544, 551-553, 537 A.2d 9, 12-13 (1988); Commonwealth v. White, 341 Pa.Super. 261, 270, 491 A.2d 252, 257 (1985). When the sentence imposed is outside the sentencing guidelines, moreover, the court must “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S. § 9721(b). See also: Commonwealth v. Sanchez, 372 Pa.Super. 369, 373, 539 A.2d 840, 842 (1988), affirmed, 522 Pa. 153, 560 A.2d 148 (1989); Commonwealth v. Vinson, 361 Pa.Super. 526, 534, 522 A.2d 1155, 1159 (1987). This requirement is satisfied “when the judge states his reasons for the sentence on the record and in the defendant’s presence.” Commonwealth v. Smith, 369 Pa.Super. 1, 6, 534 A.2d 836, 838 (1987). See also: Commonwealth v. Chesson, 353 Pa.Super. 255, 256-257, 509 A.2d 875, 876 (1986); Commonwealth v. Royer, 328 Pa.Super. 60, 69, 476 A.2d 453, 457 (1984).
When imposing sentence, a court is required to consider “the particular circumstances of the offense and the character of the defendant.” Commonwealth v. Frazier, 347 Pa.Super. 64, 67, 500 A.2d 158, 159 (1985). See also: Commonwealth v. Didyoung, 369 Pa.Super. 346, 353, 535 A.2d 192, 195 (1988); Commonwealth v. Martin, 328 Pa.Super. 498, 501, 477 A.2d 555, 557 (1984). In considering these factors, the court should refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation. Commonwealth v. Phillips, 342 Pa.Super. 45, 51, 492 A.2d 55, 58 (1985). See: Commonwealth v. O’Brien, 282 Pa.Super. 193, 197, 422 A.2d 894, 896 (1980). “It must be demonstrated that the court considered the statutory factors enunciated for determination of sentencing alternatives, and the sentencing guidelines.” Commonwealth v. Hainsey, 379 Pa.Super. 376, 382, 550 A.2d 207, 209 (1988). See also: Commonwealth v. Meo, 362 Pa.Super. 328, 332-333, 524 A.2d 902, 904 (1987); Commonwealth v. Ruffo, 360 Pa.Super. 180, 185-186, 520 A.2d 43, 46 (1987). Additionally, the court must impose a sentence which is “consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.” Commonwealth v. Frazier, supra. See also: Commonwealth v. Lowe, 361 Pa.Super. 343, 347, 522 A.2d 614, 616 (1987); Commonwealth v. Dixon, 344 Pa.Super. 293, 310, 496 A.2d 802, 810 (1985); 42 Pa.C.S. § 9721(b). Where the sentencing judge had the benefit of a pre-sentence report, however, it will be presumed that he “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). See also: Commonwealth v. Catanch, 398 Pa.Super. 466, 474, 581 A.2d 226, 230 (1990); Commonwealth v. Bruner, 388 Pa.Super. 82, 107, 564 A.2d 1277, 1289 (1989). “Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.” Commonwealth v. Devers, supra at 519 Pa. 102, 546 A.2d at 18.

Commonwealth v. McClendon, 403 Pa.Super. 467, 480-81, 589 A.2d 706, 712-713 (1991) (en banc).

The Sentencing Guidelines, as applicable in the instant case, called for a minimum sentence of confinement of 18 to 36 months in the mitigated range; 36 to 60 months in the standard range; and 60 to 84 months in the aggravated range. in imposing a minimum sentence of partial confinement for not less than 30 months minus one day, the trial court stated that it was sentencing Widmer in the mitigated range of the guidelines. The Commonwealth asserts, however, that the guideline ranges refer to sentences of total confinement and that, when the periods during which Widmer will be furloughed are excluded, his actual minimum sentence would only be for a period of 13 months. Thus, the Commonwealth argues, the sentence imposed upon Widmer actually constituted a substantial downward deviation from the Sentencing Guidelines.

After careful review, we are convinced that the Commonwealth’s interpretation of the Sentencing Guidelines is incorrect and that the trial court properly determined the applicable guideline ranges and, then, sentenced Widmer within the mitigated range thereof. Section 303.9(a) of the guidelines in effect at the time of Widmer’s sentencing provided as follows:

(a) All guideline sentence ranges are months of minimum confinement as defined in 42 Pa.C.S. §§ 9755(b) and 9756(b) (relating to partial and total confinement).

204 Pa.Code § 303.9 (former version). The Implementation Manual prepared by the Pennsylvania Commission on Sentencing discusses this section of the guidelines in the following terms:

Under the guidelines, confinement may be either partial confinement (such as work release) or total confinement. For example, when the guideline sentence range is 4 to 8 months, a 6 month minimum sentence served on work-release is within the guidelines; a 6 month minimum sentence served without work-release eligibility would also be within the guidelines.
Confinement may be either partial or total in order to give the court the widest possible latitude in sentencing, consistent with the commission’s charge to promote uniform and equitable sentences. In addition, the differences in the availability of work-release facilities among the counties made it impractical to specify the cases for which work-release should or should not be ordered.

Pa. Commission on Sentencing, Implementation Manual, 3rd edition/revised (August 9, 1991), Description and Commentary at p. 70. Thus, it seems clear that the guideline ranges in effect at the time of Widmer’s sentencing contemplated minimum sentences of either total or partial confinement. The trial court properly applied the guidelines in the instant case and sentenced Widmer within the mitigated guideline range. The Commonwealth’s arguments to the contrary are without merit.

The Commonwealth also contends that a sentence of partial confinement was inappropriate in this case and was based upon the trial court’s consideration of improper mitigating factors. With respect to a sentence of partial confinement, the Sentencing Code provides as follows:

(a) General rule. — In imposing a sentence involving partial confinement the court shall specify at the time of sentencing the length of the term during which the defendant is to be partially confined, which term may not exceed the maximum term for which he could be totally confined, and whether the confinement shall commence in a correctional or other appropriate institution.
(b) Minimum sentence. — -The court shall impose a minimum sentence of partial confinement which shall not exceed one-half of the maximum sentence imposed.
(c) Purposes for partial release. — The court may in its order grant the defendant the privilege of leaving the institution during necessary and reasonable hours for any of the following purposes:
(1) To work at his employment.
(2) To seek employment.
(3) To conduct his own business or to engage in other self-employment, including housekeeping and attending to the needs of the family.
(4) To attend an educational institution or participate in a course of vocational training.
(5) To obtain medical treatment.
(6) To devote time to any other purpose approved by the court.

42 Pa.C.S. § 9755(a)-(c).

At the time of Widmer’s original sentencing hearing, the trial court stated the following reasons for choosing a sentence of partial confinement over one of total confinement:

This is a difficult case because the type of offense that we have involved here is a serious one and appears to be the bane along with drugs of our society. The sentencing code talks about total confinement in circumstances where there is an und[ue] risk during a period of probation or partial confinement that the Defendant will commit another crime. I don’t find that to be a likelihood in this case. Another factor[ ] is that the Defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution and I think that that is not the case here. I think the Defendant is in need of correctional treatment. I think that treatment can be dealt with in a non-confinement, non-total confinement situation.
The other factor is that a lesser sentence will depreciate the seriousness of the crime of the Defendant. I think I can sculpture a sentence here that will constitute adequate punishment to the Defendant for the serious crime that was committed without depreciating the seriousness of that crime. The sentencing code also contains provisions with respect to factors that may support a sentence which is less than total confinement. The first factor is that the common — that the criminal conduct of the Defendant neither caused nor threatened serious harm. I think that’s only partially true here. There may have been no physical damage. There may have been no physical harm. But the psychological and emotional harm is every bit as damaging as an[y] physical harm that could have been inflicted and in my view, certainly is going to last a lot longer than it takes a physical injury to heal. The other factor is that the Defendant did not contemplate that his conduct would cause or threaten serious harm. I believe that he did not contemplate that his conduct would cause that kind of harm, but I think that his conduct was so grossly negligent or reckless, that in these circumstances as to whether or not he had the consent of the victim to this contact, that he should have contemplated that some harm, at least emotional harm, certainly would result.
The sentencing code also provides that there were substantial grounds tending to excuse or justify the criminal conduct of the Defendant so failing to establish a defense. I don’t think that’s a factor here. I don’t think there’s any excuse for what occurred. And the other factor is certainly not applicable here, that the victim of the criminal conduct of the Defendant induced or facilitated its commission. I don’t find that to be a factor notwithstanding the testimony that the victim, if believed the testimony of the Defendant, that the victim facilitated his penetration. I don’t think that’s the case here. That the Defendant has compensated and will compensate the victim of his criminal conduct for the damage or injury she sustained and I tend — and I intend to deal with these factors in my sentence. The other factor is that the Defendant has no history of prior delinquency or criminal activity or has led a law abiding life for a substantial period of time before the commission of the present crime. I think that’s clearly the case here and in this context, in response to your legal argument, Mr. Reilly, the guidelines, the sentencing guidelines are exactly that. They’re guidelines. And the Court may sentence either in the standard range or aggravated or mitigated range, and if it deviates from the standard range, then it must provide some explanation of its basis for so doing. While the fact that the Defendant has no prior criminal record may already be factored into the recommendation, that is not to say that that recommendation is going to be suitable in every case involving a degree of culpability such as this one of a first degree felony. And that in an appropriate case, I think the Court can and should deviate from the guidelines. The other factor is that the criminal conduct of the Defendant was a result of circumstances unlikely to recur. I believe that is the case here. I think what happened here, given the background and circumstances of the Defendant, is not likely to recur and when I say that, I don’t mean in any way to depreciate the nature of the harm that was done, because whether or not something happens or doesn’t happen in the future doesn’t change anything that happened in the past. The other factor is that the character and attitude of the Defendant indicate that he is unlikely to commit another crime. I think the information that I have, including all of the testimony in this case, does indicate that it is unlikely that this Defendant is going to commit another crime. I think the Defendant is particularly likely to respond affirmatively to some — to a sentence which is less than total confinement and I think a total confinement sentence in this case would be disproportionate to the seriousness of the offense for which he has been convicted. Therefore, based on those findings of the Court and considering Section 9724 of the sentencing code which does deal with partial confinement, I don’t think probation is an appropriate sentence here. That section reads, “If in light of all the circumstances and when facilities are available, probation would be inappropriate,” and I think that is the case here. But it further appears that if [a] sentence of total confinement would not be required in accordance with the criteria established in Section 9725, which I just went through relating to total confinement, the Court may impose a sentence involving partial confinement and I think that is what [is] appropriate in this case.

N.T. July 22, 1994 at pp. 32-36.

Subsequently, upon modification of Widmer’s sentence, the trial court explained:

No matter what I do in this case, people are going to leave here dissatisfied, but I can only do what I believe my reading of the law and my [conscience] dictate in this case. The elements that — and the testimony that you referred to, Mr. Reilly, in my view comes within the guideline standard that there was substantial grounds tending to mitigate Defendant’s conduct or culpability, although not sufficient to constitute a defense.
That is what I sincerely believe to be the circumstances in this case. None of the testimony that you referred to was rebutted, and although as I said, it doesn’t rise to the level of a defense, in my view it constitutes a mitigating factor. I cannot [ ], and I do not, sentence Defendants for every Rape that could occur in the Commonwealth of Pennsylvania under unspecified circumstances. I can only sentence for the crime which the Defendant was found guilty in the factual circumstances in this case.
The Commonwealth’s assertions in its brief are overdrawn and far exceed the factual perimeters of this case and do not consider the factors that I’ve just mentioned. Notwithstanding the Commonwealth’s assertions, it is my belief that from having heard the — both the parties in this case, the Defendant as well as the victim, and had an opportunity to reach some conclusion that contrary to the Commonwealth’s assertion, I think that the Defendant is a candidate for rehabilitation and that he is unlikely to commit further crimes.
In addition to what I’ve just said, I incorporate all of what I said the last time concerning the reason for my sentence, and my sentence is based on all those reasons, not any one in particular, but all of them together. And that constitutes my best judgment in this case.

N.T. August 15, 1994 at pp. 27-29.

Having reviewed the transcripts of the sentencing proceedings in the instant case, we are satisfied that the trial court considered all necessary sentencing factors. The court properly applied the Sentencing Guidelines and considered all of the available sentencing alternatives provided in the Sentencing Code. In determining that a sentence of partial confinement was the appropriate punishment in this case, the trial court took into consideration Widmer’s background and character and attempted to balance carefully the seriousness of the crime with Widmer’s rehabilitative needs. Although we may not have imposed the same sentence as the trial court,

[i]t is not for a reviewing court to substitute its discretion for that of the trial court, but merely to ascertain that proper consideration was given to relevant factors. The Supreme Court has made it abundantly clear that a sentencing court’s discretion is broad, and that a reviewing court should not disturb the exercise of that discretion except for substantial reasons. See, e.g.: Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242 (1990); Commonwealth v. Jones, 523 Pa. 138, 565 A.2d 732 (1989); Commonwealth v. Devers, supra. No such reasons appear in the instant case. Where, as here, the sentencing court has considered necessary sentencing factors and has exercised conscientiously and correctly its sentencing prerogatives, the sentence will be affirmed.

Commonwealth v. McClendon, supra at 485, 589 A.2d at 715. Having found no abuse of discretion by the trial court in imposing sentence upon Widmer, the Commonwealth’s challenge to the discretionary aspects of the sentence must be rejected.

The judgment of sentence is affirmed.

CAVANAUGH, J., files a Dissenting Opinion.

CAVANAUGH, Judge,

dissenting:

While I do not disagree with the reasoning of the majority, I would favor an alternative, less orthodox, disposition of this appeal. I would do so in recognition of the following factors:

1. The instant verdict was rendered within months after the effective date of Pa.R.Crim.P. 1410 which provided for a new and radically different procedural methodology in handling post-verdict appeals.
2. In Pennsylvania weight of the evidence arguments are almost exclusively for the trial judge to decide, and are otherwise, as a practical matter, non-reviewable.
3. The trial court has articulated in no uncertain terms, a declaration that, if properly presented, he would grant appellant a new trial on the claim that the jury verdict was against the weight of the evidence.
4. The appeal route taken by appellant’s counsel, while not involving waiver in the traditional sense, certainly is tantamount to waiver.
5. The efficiencies which inspired Rule 1410 were not intended to facilitate the de facto waiver of meritorious issues.
6. The present disposition is a script for an all but certain meritorious plea for post conviction collateral relief.
7. I agree with the majority disposition of the Commonwealth’s appeal.

Accordingly, I would vacate the sentence and remand this case for the resubmission of post-verdict motions nunc pro tunc.

      . 18 Pa.C.S. § 312 1(3).

      . 18 Pa.C.S. § 3126(a)(1) and (3).

      . Widmer’s convictions on two counts of indecent assault were deemed to merge for purposes of sentencing with his rape conviction.

      . The period of Widmer's furloughs was altered so that the portion of his sentence actually spent in prison would remain essentially the same.

      . Widmer was sentenced under the Sentencing Guidelines as amended on August 9, 1991. The guidelines were subsequently amended again, effective in all cases where the offense was committed on or after August 12, 1994. This most recent amendment to the guidelines is not applicable in this case, as the offense for which Widmer was being sentenced occurred on July 29, 1993.

      . Widmer’s sentence was modified to give effect to the trial court's original intent that he serve his sentence in a county facility and be furloughed during the week as ordered by the court. However, because the original maximum sentence imposed exceeded five (5) years, Widmer was required by law to serve his sentence in a state prison, subject to the supervision of the Department of Corrections, which had indicated that it would not give effect to the portion of the trial court’s sentence requiring Widmer's furlough during the week.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    667 A.2d 228
    Mr. & Mrs. Ronald R. MATAKITIS v. John WOODMANSEE and Carol Woodmansee. Ronald MATAKITIS and Elizabeth Matakitis, His Wife v. John WOODMANSEE and Carol Woodmansee, His Wife, Alice Jean Ray and Katheryn M. May. Appeal of John WOODMANSEE and Carol Woodmansee, His Wife.
    Superior Court of Pennsylvania.
    Argued Aug. 8, 1995.
    Filed Oct. 23, 1995.

      Andrew Hailstone, Scranton, for appellants.
    Vincent A. Scamell, Jr., Honesdale, for Ronald & Elizabeth Matakitis, appellees.
    Warren Schloesser, Honesdale, for Alice & Katheryn May, appellees.
    Before ROWLEY, President Judge, and CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order dated November 22, 1994, dismissing appellants’ exceptions and entering a final decree. Appellants, John and Carol Woodmansee [“Woodmansee”], now raise the following issues for our review.

I. WHETHER [APPELLEES] RAY AND MAY ARE ENTITLED TO A RIGHT OF WAY ACROSS WOODMANSEE’S LOT?
II. WHETHER THE WIDTH OF THE RIGHT OF WAY MAY EXCEED FIFTEEN FEET?
III. WHETHER THE RIGHT OF WAY MAY BE UTILIZED FOR COMMERCIAL PURPOSES?
IV. DID WOODMANSEE JUSTIFIABLY REMOVE A GATE CONSTRUCTED BY MATAKITIS ALONG THE RIGHT OF WAY?
V. what IS THE PROPER MEASURE OF DAMAGES TO WOODMANSEE’S PROPERTY AS A RESULT OF MATAKITIS’ DESTRUCTION OF TWENTY-SEVEN (27) TREES THEREON? .

See Appellant’s Brief at 3. For the following reasons, we affirm.

Woodmansee owns two adjoining lots adjacent to Spruce Lake. Appellees, Ronald and Elizabeth Matakitis [“Matakitis”], own a larger lot which borders the Woodmansee property on two sides, and also borders the lake. Appellees, Alice Jean Ray [“Ray”] and Katheryn M. May [“May”], each own lots located on Route 370 which adjoin Matakitis’ property, but are not contiguous to the lake.

Over the course of time, an eight foot wide dirt path evolved from Route 370 to Spruce Lake, which passed through all four properties. On or about June 24, 1991, Woodmansee spread shale on the right of way to make it more accessible to motor vehicles. Subsequently, Matakitis sued Woodmansee for damages resulting from the shaling operations. Woodmansee counterclaimed for $20,000.00 in damages, alleging that Matakitis cut trees on the Woodmansee property, thereby depreT, dating the value of the property.

Thereafter, on June 28, 1993, Matakitis brought an action in equity against Woodmansee, Ray, and May, seeking a declaratory judgment fixing the location, nature, and extent of the right of way. Matakitis also sought to have a gate replaced, which had been located along the right of way but was removed by Woodmansee. On May 2, 1994, the trial court consolidated the cases into one equity matter. After a bench trial, the trial court entered a decree nisi finding that: (1) the right of way exists through the four properties; (2) all the parties are permitted to utilize the right of way; (3) the placement of red shale by Woodmansee constituted maintenance; (4) the location and width shall not exceed its present width of fifteen (15) feet and shall not be altered; (5) Matakitis shall pay to Woodmansee three hundred ($300.00) dollars for the removal of the trees; (6) Woodmansee shall restore the gate in question; and (7) there shall be no utilization of the right-of-way for commercial purposes. Exceptions were filed and the trial judge entered a final decree on November 22, 1994, based upon the decree nisi, adding only that the gate at issue shall be kept locked at all times. This timely appeal followed.

Preliminarily, we note that “the scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.” Leidigh v. Reading Plaza General, 431 Pa.Super. 310, 314, 636 A.2d 666, 667 (1994). With this standard in mind, we will address the issues raised on appeal.

Woodmansee now contends that the trial court erred in finding that Ray and May are entitled to a right of way across Woodmansee’s lot. First, Woodmansee complains that because Ray and May never counterclaimed for a right of way, the trial court should not have entered a decree regarding their rights to use the right of way. Second, Woodmansee argues that the trial court improperly found that Ray and May had an easement by prescription.

Our Supreme Court has stated that “Lwjhere equity assumes jurisdiction for one or more purposes, it will retain jurisdiction for all purposes to give complete justice between the parties.” Armstrong School District v. Armstrong Education Association, 528 Pa. 170, 178, 595 A.2d 1139, 1143 (1991).

In the instant case, we first note that Ray and May were named as defendants in the original equity action in which Matakitis sought a declaratory judgment as to the nature, location, and extent of the right of way. Furthermore, in their answer, Ray and May specifically stated, “it is believed that all parties to this action have the use of the right of way as it originally existed in a manner consistent with the rights of ingress, egress and regress as they appear in the deeds.” Answer to New Matter and Counterclaim, ¶ 54. Finally, a review of the record reveals that both Ray and May offered testimony regarding the history, nature, and use of the right of way. N.T., August 2, 1994 at 122-42. Therefore, we find the trial court had jurisdiction to enter a decree adjudicating Ray’s and May’s right to use the easement through Woodmansee’s property. Armstrong, supra.

We next examine whether the trial court properly found that Ray and May have a right of way across the Woodmansee property. A review of the relevant deeds reveals that, although Ray and May have a right of way to reach Spruce Lake through the Matakitis property, no right of way over the Woodmansee property was ever conveyed to the owners of what is now the Ray and May properties. Therefore, we must determine whether Ray and May acquired an easement by prescription to utilize the right of way across the Woodmansee lot.

“An easement or right-of-way by prescription arises by adverse, open, continuous, notorious, and uninterrupted use of the land for twenty-one years.” Waltimyer v. Smith, 383 Pa.Super. 291, 294, 556 A.2d 912, 913 (1989). Moreover,

In establishing a prescriptive easement, constant use need not be demonstrated in order to establish the continuity of the use. Rather, “continuity is established if the evidence shows a settled course of conduct indicating an attitude of mind on the part of the user or users that the use is the exercise of a property right.”

Newell Rod and Gun Club, Inc. v. Bauer, 409 Pa.Super. 75, 81, 597 A.2d 667, 670 (1991) (quoting Dunlap v. Larkin, 342 Pa.Super. 594, 608, 493 A.2d 750, 757-58 (1985)).

In the instant case, Ray testified that although she had owned the property for only six to eight years, her mother owned the same property since about 1939, and that she had lived on the property as a child. N.T., August 2, 1994 at 123. She further testified that she used the right of way three or four times a year herself, and that her tenants also used the right of way. Id. at 131. May testified that she had owned the property since 1977, that her father was the prior owner, and that she had resided on the property since second grade. Id. at 136. May also stated that she used the right of way three or four times a year. Id. at 140. We find that this conduct amounted to adverse, open, continuous, notorious, and uninterrupted use of the land for twenty-one years. Waltimyer, supra; Newell, supra. See also Waksmunski v. Delginis, 391 Pa.Super. 37, 570 A.2d 88 (1990) (where direct evidence presented that easement was used openly, notoriously, and continuously for more than twenty-one years, equity court’s determinations will not be reversed). Consequently, we find that the trial court did not abuse its discretion in finding that May and Ray have acquired an easement by prescription to utilize the right of way. Leidigh, supra.

Woodmansee next argues that the trial court erred in holding that the width of the right of way over the Matakitis, Ray, and May properties may not exceed fifteen feet and that it may not be utilized for commercial purposes.

Our Supreme Court recently stated:

It is well established that the same rules of construction that apply to contracts are applicable in the construction of easement grants.... In ascertaining the scope of an easement, the intention of the parties must be advanced. “Such intention [of the parties] is determined by a fair interpretation and construction of the grant and may be shown by the words employed construed with reference to the attending circumstances known to the parties at the time the grant was made.” Where the grant of an easement is unrestricted, the grantee is given such rights as are necessary for the reasonable and proper enjoyment of the thing granted.... Thus, our cases tell us that when a grant of an easement is ambiguous we must determine if the grantee’s asserted use is a reasonable and necessary use in relation to the original purpose of the grant and within the intention of the original parties to the grant.

Zettlemoyer v. Transcontinental Gas Pipeline, 540 Pa. 337, 344, 657 A.2d 920, 924 (1995) (citations and quotations omitted) (emphasis added).

The portion of the right of way at issue here was created by Jessie and Abbie Temperton, who at one time owned all four of the parties’ properties. On May 9, 1919, the Tempertons conveyed what is now the Matakitis, Ray, and May properties to Lela S. Dibble, but reserved for themselves, their executors and assigns “a way of ingress, egress, and regress convenient from the highway [now Route 370] to [what is now the Woodmansee lot].” Deed, May 9, 1919, at 2.

In the instant case, the Woodmansees sought a decree allowing expansion of the right of way to fifty feet in width in order to accommodate two-way traffic, and a decree allowing the easement to be used for commercial purposes, so that their property could be utilized as a bed and breakfast inn. Although this deed was ambiguous, we agree with the trial court that it would be unreasonable to expand the right of way so that appellant can now utilize the property for a bed and breakfast inn. Purdy v. Zaver, 398 Pa.Super. 190, 198, 580 A.2d 1127, 1131 (1990) (“The owner of a dominant estate may not exercise the rights granted to him or her without regard to the rights of the servient owner.”); Hoch v. Philadelphia Elec. Co., 341 Pa.Super. 598, 604, 492 A.2d 27, 31 (1985) (“only reasonable increases in the burden imposed on the easement are permitted”). Consequently, we will not upset the trial court’s decision. Leidigh, supra; Zettlemoyer, supra.

Appellant next contends that the trial court erred in holding that Woodmansee wrongfully removed the gate constructed by Matakitis.

The erection of a gate should not be restrained unless it is an unreasonable interference with an easement, or completely denies the rights of the user. Taylor v. Heffner, 359 Pa. 157, 164, 58 A.2d 450, 454 (1948). “Gates or moveable bars, if not an unreasonable obstruction to the use of [an easement], are not an unlawful abridgement of the right of passage under easement.” Haig Corporation v. Thomas S. Gassner Co., 163 Pa.Super. 611, 615, 63 A.2d 433, 435 (1949).

In the instant case, Matakitis provided Woodmansee with keys to the gate in question, but Woodmansee refused to accept the keys. Instead, Woodmansee unilaterally removed the gate. In light of the minimal inconvenience a locked gate causes, and the protection it affords all four parties, we find that the trial court did not abuse its discretion in ordering Woodmansee to restore the gate. Leidigh, supra; Haig Corp., supra (where plaintiffs were given a key, a locked gate was not an unreasonable interference with plaintiffs’ right to use the easement).

Finally, appellant contends that the trial court abused its discretion in calculating the amount of damages to Woodmansee’s property at $300.00.

The measure of damages for injury to real property “is the cost of repairs where that injury is reparable unless such cost is equal to or exceeds the value of the injured property.” Kirkbride v. Lisbon Contractors, Inc., 385 Pa.Super. 292, 298, 560 A.2d 809, 812 (1989). However, where the injury to the property is permanent, “the measure of the damages becomes the decrease in the fair market value of the property.” Id. at 299, 560 A.2d at 812. See also Richards v. Sun Pipe Company, 431 Pa.Super. 429, 433, 636 A.2d 1162, 1163-64 (1994).

In the instant case, the Woodmansees alleged that Matakitis, while moving a trailer onto their plot, cut down trees on the Woodmansee property. Woodmansee’s expert Mary Rapkowitz testified that as a result of tree removal, the value of the Woodmansee property decreased by $30,000.00. However, the trial court found Ms. Rapkowitz’s testimony neither credible nor realistic. A review of the record reveals that Woodmansee purchased the entire property in 1986 for $15,000.00 and that the trees in question were small, having diameters from three-quarters to two and three quarters inches. Therefore, we find that the trial court did not abuse its discretion in fixing the amount of damages at $300.00. Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 503, 556 A.2d 819, 824 (1989) (“In a bench trial it is the duty of the trial judge to judge credibility of the witnesses and to weigh their testimony. His findings will not be reversed unless it appears that he has clearly abused his discretion or committed an error of law.”); Hodges v. Rodriguez, 435 Pa.Super. 360, 366, 645 A.2d 1340, 1343 (1994) (“the trial court is free to believe all, part, or none of the evidence that is presented”); Boyd & Mahoney v. Chevron U.S.A., 419 Pa.Super. 24, 35, 614 A.2d 1191, 1197 (1992) (“[i]n reviewing an award of damages, the appellate court will defer to decisions of the trier of fact, who is in a superior position to appraise and weigh the evidence”), appeal denied, 535 Pa. 629, 631 A.2d 1003 (1993).

Accordingly, for the reasons stated above, we affirm the trial court’s final decree.

Affirmed.

      . We note that Ray and May gained their prescriptive easement by tacking their parents' period of use of the easement onto their own use. See McCormick v. Camp Pocono Ridge, Inc. II, 781 F.Supp. 328, 332 (M.D.Pa.1991) (under Pennsylvania law, landowner who is in privity with the prior adverse possessor may tack prior use of an easement onto his or her own period of use to establish continuous possession for the required twenty-one years); Lednak v. Swatsworth, 33 D. & C.3d 535, 537 (1984) (" ‘Privity’ denotes merely a succession of relationships to the same thing. The successive occupants must claim through their predecessors, and not independently, to make the holding continuous for the required period.”). Here, Ray and May were clearly in privity with their parents, therefore tacking is permissible to establish continuous possession.

      . Woodmansee also asserts that the enclosed woodlands rule, which prevents acquisition of an easement through unenclosed woodlands, would defeat Ray’s and May’s prescriptive easement. Flowever, as the Woodmansees' relatively small lot contains a residential building, as well as open areas near the beach, the property can not be considered enclosed woodlands, and therefore the enclosed woodlands rule is inapplicable. See Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982) (character of the land itself determines whether the enclosed woodland act applies); Babcock v. The Wilderness Club, 27 D. & C.3rd. 84 (1982) (the enclosed woodlands act was originally enacted to protect owner of large areas of virgin timber).

      . We note that the trial court improperly considered the actions of persons who resided on the respective properties after the original parties to the agreement. Lease v. Doll, 485 Pa. 615, 622 n. 7, 403 A.2d 558, 562 n. 7 (1979) (only attending circumstances known to the parties at the time of the grant are relevant). However, even omitting the testimony regarding successive owners’ use of the easement, we conclude that the record supports the finding that the expansion Woodmansee seeks is unreasonable.


author: ROWLEY, President Judge.

text:
    667 A.2d 233
    POCONO SPRINGS CIVIC ASSOCIATION, INCORPORATED v. Joseph W. MacKENZIE and Doris C. MacKenzie, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 5, 1995.
    Filed Oct. 31, 1995.

      Tammy L. Clause, Newfoundland, for appellants.
    Howard C. Terreri, Scranton, for appellee.
    Before ROWLEY, President Judge, and SAYLOR and HOFFMAN, JJ.
   ROWLEY, President Judge.

The issue in this appeal is whether real property owned by appellants Joseph W. MacKenzie and Doris C. MacKenzie has been abandoned, as they claim. In an order entered January 5, 1995, the trial court granted summary judgment, in the amount of $1,739.82, in favor of appellee Pocono Springs Civic Association, Inc., which argued successfully to the trial court that appellants had not abandoned their property located in appellee’s development, and, therefore appellants were still obligated to pay association fees.

The parties filed a stipulation of the facts “for disposition of this case”, and the facts are in no manner disputed. Our determination, therefore, is simply whether the trial court erred as a matter of law in finding that appellee’s right to summary judgment is clear and freé from doubt.

We briefly outline the facts and procedural background of the case as follows: Appellants purchased a vacant lot at Pocono Springs Development, located in Wayne County, on October 14, 1969. In 1987, appellants decided to sell their still-vacant lot. A subsequent offer for the purchase of appellants’ lot was conditioned upon the property being suitable for an on-lot sewage system. Upon inspection, the lot was determined to have inadequate soil for proper percolation, and appellants’ sale was lost. Believing their investment to be worthless, appellants attempted to abandon their lot at Pocono Springs Development. Appellants claimed that because they successfully abandoned their lot, they are relieved from any duty to pay the association fees sought by appellee. The trial court held, however, that the appellant’s abandonment defense is “not a valid defense”. We agree with the trial court, and affirm.

Our standard of review when faced with an appeal from a trial court order granting summary judgment is as follows:

[T]he [CJourt must accept as true all well-pleaded facts in the non-moving party’s pleadings and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. In order to uphold a grant of summary judgment, the record must demonstrate both an absence of genuine issues of material fact and an entitlement to judgment as a matter of law.

Chicarella v. Passant, 343 Pa.Super. 330, 340, 494 A.2d 1109, 1114 (1985); see also Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986).

Appellants’ argument, that they successfully abandoned their lot at Pocono Springs Development, is based upon several actions that they believe disassociate them from the land. First, appellants, after learning that the lot would not meet township sewage requirements, attempted to turn the lot over to appellee. Appellee declined to accept the property. Second, appellants tried to persuade appellee to accept the lot as a gift, to be used as a park-like area for the community. Appellee again declined. Third, in 1986 appellants ceased paying real estate taxes on their lot, and in 1988 the Wayne County Tax Claim Bureau offered the property for sale, due to delinquent tax payments. There were no purchasers. Fourth, in 1990, the lot was again offered for sale by the Tax Claim Bureau. The property again was not sold. The Bureau then placed the lot on its “repository” list. Fifth, appellants signed a notarized statement, mailed to “all interested parties,” Brief for Appellants at 9, which expressed their desire to abandon the lot. Sixth, appellants do not accept mail regarding the property. These occurrences, together with appellants having neither visited the lot nor utilized the development’s services since 1986, cause appellants to “assert that they do not have ‘perfect’ title to Lot # 20, in Pocono Springs [Development,] [thus] they can and have abandoned said property back to the sovereign.” Id. at 11. On the basis of the above, appellants argue that their conduct manifests an intent to abandon, and that their intent to abandon should be a question of fact which precludes summary judgment.

The law of abandonment in Pennsylvania does not support appellants’ argument. This Court has held that abandoned property is that:

... to which an owner has voluntarily relinquished all right, title, claim and possession with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaiming further possession or resuming ownership, possession or enjoyment.

Commonwealth v. Wetmore, 301 Pa.Super. 370, 373, 447 A.2d 1012, 1014 (1982) (citations omitted). However, in the instant case, appellants have not relinquished their rights, title, claim and possession of their lots. They remain owners of real property in fee simple, with a recorded deed and ‘perfect’ title. Absent proof to the contrary, possession is presumed to be in the party who has record title. Overly v. Hixson, 169 Pa.Super. 187, 82 A.2d 573 (1951). As appellants themselves concede, with commendable candor, see Brief for Appellants at 15, no authority exists in Pennsylvania that allows for the abandonment of real property when owned in fee simple with perfect title. Additionally, appellants properly admit that neither refusal to pay taxes nor non use of real property constitutes abandonment. Brief for Appellants at 16; see also Petition of Indiana County, 360 Pa. 244, 248-49, 62 A.2d 3, 5 (1948) (“It has frequently been held that abandonment of title is not to be presumed from a mere failure to possess the land or from neglect to pay the taxes thereon; inchoate rights may be abandoned but abandonment is not predictable of perfect titles!)]”). Yet, appellants nonetheless maintain that their non use, refusal to pay taxes, and offers to sell create an abandonment, because of a displayed intent to abandon.

But appellants simply do not accept that the record shows that they have retained ‘perfect’ title to their lot. Neither title nor deed has been sold or transferred. Indeed, appellants admit that they are the owners of the lots in question. See Stipulation of Facts, Number 1 (“[Appellants] own Lot #20, Edgehill Road, in the real estate subdivision development generally known as Pocono Springs Estates, by virtue of deed attached ... as Exhibit ‘A’, which is incorporated herein by reference.”). Perfect title, under Pennsylvania law, cannot be abandoned. O’Dwyer v. Ream, 390 Pa. 474, 136 A.2d 90 (1957). In O’Dwyer, our Supreme Court held that once it is determined that good title exists, then the abandonment theory cannot succeed. See also A.D. Graham & Company, Inc. v. Pennsylvania Turnpike Commission, 347 Pa. 622, 33 A.2d 22, 29 (1943) (which held that the doctrine of abandonment does not apply to perfect titles, only to imperfect titles). Appellants do not cite, and our own research has not discovered, any more recent cases that would cause us to question the authority of the cited decisions. Absent authority to support their argument, therefore, the appeal cannot be successful for appellants. In short, as the trial court held, “[appellant’s] ‘Abandonment Authorization’ [is] not a valid defense.” Trial Court Opinion (Conway, P.J.), 1/5/95, at 6.

Appellants further claim that the trial court erred in granting summary judgment because whether they abandoned their lots should be a question of intent, for a jury to determine. In an attempt to support this argument, appellants cite Wetmore, supra, and O’Dwyer, supra. Neither case, however, nor any other that appellants could have cited, stands for the proposition that summary judgment may not be granted when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Intent is an element in the doctrine of abandonment only if the claim survives a motion for summary judgment, and, heretofore, only in cases involving personal property. In the instant case, appellants’ intent is irrelevant. What is controlling is our law, which states that real property cannot be abandoned. The law, therefore, leaves nothing for a jury to decide on this claim, which amounts to a legal impossibility.

Having carefully read the entire deed, we cannot find language that would offset appellants’ duty under covenant number 11, supra at footnote 1, nor any language that would serve as a guide to what appellee’s remedies are via the covenant for failure to pay. Thus, appellants, retaining perfect title, albeit reluctantly, and having entered into an agreement with appellee to be subject to certain required payments, have not proven a genuine issue of material fact that would mandate reversal of the trial court’s entry of summary judgment for appellee. Therefore, we are constrained to find that appellee is entitled to judgment as a matter of law.

Order affirmed.

      . The covenant upon which appellee relies reads as follows:
      An association of all property owners is to be formed by the Grantor and designated by such name as may be deemed appropriate, and when formed, the buyer covenants and agrees that he, his executors, heirs and assigns, shall be bound by the by-laws, rules and regulations as may be duly formulated and adopted by such association and that they shall be subject to the payment of annual dues and assessments of the same.
      Deed, Covenant Number 11.

      . The trial court order reads as follows:

        AND NOW, to wit this 30th day of December, 1994, it is hereby ordered that the Motion for Summary Judgment filed by [appellee] is GRANTED.
      IT IS FURTHER ORDERED that judgment be entered in favor of [appellee] in the amount of One thousand, six hundred, eighty eight and >2/ioo ($1,688.12) dollars plus Fifty-one and 79ioo ($51.70) dollars in recording costs based upon the Stipulation of Facts and Count I of [appellee's] Complaint.
      Trial Court Order (Conway, P.J.), 1/5/95.

      . Most commonly, abandonment involves personal property or railway lines not owned in fee simple. See Quarry Office Park Associates v. Philadelphia Electric Company, 394 Pa.Super. 426, 576 A.2d 358 (1990) (Court reversed order granting summary judgment and remanded the case, holding that whether Conrail abandoned a rail line was a question for the factfinder, because Conrail owned a right of way, rather than a fee simple interest); Commonwealth v. Wetmore, 301 Pa.Super. 370, 447 A.2d 1012 (1982) (Court affirmed order of trial court that arrested judgment following a jury trial; Court held that abandonment of shotgun occurred when father told chief of police to keep and dispose of weapon); In re Perlman’s Estate, 348 Pa. 488, 35 A.2d 418 (1944) (fiduciary abandoned interest in life insurance policies).


author: ROWLEY, President Judge:

text:
    667 A.2d 237
    Sandra L. ZERR and Ralph E. Zerr, Jr., Appellants, v. ERIE INSURANCE EXCHANGE.
    Superior Court of Pennsylvania.
    Argued June 28, 1995.
    Filed Oct. 31, 1995.

      Thomas P. Lang, York, for appellants.
    Thomas E. Brenner, Harrisburg, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   ROWLEY, President Judge:

This appeal, brought by appellants Sandra L. Zerr and Ralph E. Zerr, Jr. against their automobile insurer, appellee Erie Insurance Exchange, presents an issue of first impression in the Commonwealth: whether the term “bodily injury,” as found in appellee’s insurance policy and in the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1701, et seq., includes mental illnesses manifested by physical symptoms.

On March 10, 1992, Ralph E. Zerr, Jr. was driving his car eastbound on the Pennsylvania Turnpike. An unidentified tractor trailer allegedly attempted to change lanes too quickly after passing Mr. Zerr’s vehicle. To avoid a collision, Mr. Zerr swerved his car away from the truck and proceeded off the turnpike before coming to a stop. The two vehicles never made contact with one another, and Mr. Zerr suffered no physical harm at the scene.

Subsequently, however, Mr. Zerr began suffering “mental illness and emotional injuries,” as a result of the incident. He was unable to return to work, and began treatment with a therapist, who diagnosed Mr. Zerr as suffering from Posttraumatic Stress Disorder, globus hystericus, anxiety attacks, driving phobia and numerous physical symptoms allegedly caused by the emotional experience on the roadway. Mr. Zerr made a claim to appellee for first party benefits under his automobile policy, but appellee denied responsibility.

Thereafter, appellants instituted the instant suit. Appellee responded by filing preliminary objections in the nature of a demurrer, arguing that because Mr. Zerr admittedly suffered no physical injuries at the time of the incident, appellants failed to state a cause of action and, therefore, the complaint should be dismissed. Appellants then filed a brief in opposition to appellee’s preliminary objections and demurrer, claiming that because Mr. Zerr’s emotional injuries have manifested themselves in physical symptoms he should be awarded benefits under appellee’s insurance policy. Both parties requested oral argument on the issue of whether appellants had stated a claim upon which relief could be granted. The trial court held oral arguments on December 13, 1994, at the conclusion of which the trial court directed both parties to file supplemental briefs on a second issue raised by appellants for the first time that day: whether the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., is applicable to the instant matter. Both appellants and appellee filed briefs on the ADA issue. Thereafter, the trial court entered the following order, from which appellants now appeal:

AND NOW, this 23rd day of January, 1995, upon consideration of [appellee’s] preliminary objections, the briefs filed by counsel and after oral argument, it is hereby ORDERED that [appellee’s] preliminary objections are granted and the complaint is hereby dismissed.

Trial Court Order (Stengel, J.), 1/24/95.

Thus, appellants claim on appeal that the trial court erred in granting appellee’s preliminary objections in the nature of a demurrer. They argue that (1) the insurance policy should provide first party medical and wage loss benefits to Mr. Zerr for his mental injuries, because physical symptoms resulted from the irregular mental condition, and (2) the MVFRL is violative of the ADA. In reviewing appellants’ appeal, we are mindful of the following:

Our standard of review in appeal from an order sustaining preliminary objections in the nature of a demurrer is the same as that which the trial court employs: all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for purposes of review. However, we cannot accept as true conclusions of law. The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory.

Pittsburgh National Bank v. Perr, 431 Pa.Super. 580, 584, 637 A.2d 334, 336 (1994) (citations omitted).

The instant controversy is centered around the language of appellee’s insurance policy, which was in effect for appellants on the date of the accident, and of the MVFRL. Specifically, we must determine whether the definitions provided by either source include coverage for an accident victim who suffers physical symptoms that result from a mental and emotional condition caused by a motor vehicle accident. The insurance policy provides in relevant part:

DEFINITIONS
“bodily injury” or “injury” means accidental bodily harm to a person and that person’s resulting illness, disease or death.
OUR PROMISE
As selected in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law, as amended, we will pay for:
(1) medical expenses,
(2) funeral expenses, and
(3) income loss,
arising from bodily injury to any person we protect due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle. We will pay these benefits no matter who is at fault in the accident.
FIRST PARTY BENEFITS
MEDICAL EXPENSES
We will pay necessary charges for:
(1) medical treatment, including but not limited to:
(a) medical, hospital, surgical, nursing and dental services;
(b) medications, medical supplies and prosthetic devices; and
(c) ambulance.
(2) medical and rehabilitative services, including but not limited to:
(a) medical care;
(b) licensed physical therapy, vocational rehabilitation and occupational therapy;
(c) osteopathic, chiropractic, psychiatric and psychological services; and
(d) optometric services, speech pathology and audiology.

Erie Insurance Exchange Auto Endorsement.

The MVFRL offers the following as its definition of “injury” for the purposes of financial responsibility, and states that the word shall have the meaning given, unless clearly indicated otherwise by the context:

“Injury.” Accidentally sustained bodily harm to an individual and that individual’s illness, disease or death resulting therefrom.

75 Pa.C.S. § 1702.

Appellants argue that the emphasis in the definitions should be on “person” and/or “individual”, claiming that appellee and/or the legislature intended to differentiate a person from personal or real property. Moreover, appellants claim that sections 1712 and 1713 (relating to availability of benefits and source of benefits to those injured, respectively) describe the availability of awards to which they are entitled under the MVFRL.

However, we find that the definitions of injury, found in both appellee’s insurance policy and the MVFRL, state that the illness, disease, or death one suffers, and to which a policy holder is due a benefit, are those that are the result of a bodily injury. In the instant action, appellants claim is that Mr. Zerr suffered mental injuries as a result of an automobile accident, and that as a result of mental injuries he subsequently experienced physical symptoms. In other words, his injury did not result in an illness, but rather his illness resulted in a bodily injury. His is, therefore, not the type of injury specified under either appellee’s policy or the MVFRL, supra.

In addition, we are mindful of the prior interpretations given to the phrase “bodily injury” by this Court. In Needleman v. Liberty Mutual Fire Insurance Company, 352 Pa.Super. 288, 507 A.2d 1233 (1986), this Court held that family members, who witnessed another family member struck and killed by a passing automobile, were neither “victims” nor did they suffer “injury,” as defined under the Pennsylvania No-fault Motor Vehicle Insurance Act. Moreover, this Court found that the common and approved usage of “bodily injury” connotes a physical, rather than a mental, condition. In Jackson v. Travelers Insurance Company, 414 Pa.Super. 336, 606 A.2d 1384 (1992) appeal granted 533 Pa. 625, 620 A.2d 491 (1993), this Court was faced with the issue of whether the Assigned Claims Plan provided uninsured motorist coverage for a husband who suffered mental trauma after witnessing his wife struck and killed by an automobile. In finding that the husband was not eligible for benefits, this Court reasoned that section 1702 of the MVFRL does not extend “injury” to include mental hardship.

We note, however, that differences exist between the instant case and both Needleman and Jackson. In neither of those cases did this Court address the issue of the actual accident victim suffering an injury, pursuant to the MVFRL or an independent insurance policy, when he or she experiences mental difficulties that necessitate psychological care. Both cases, as discussed supra, addressed the issue in the context of family witnesses, whereas in the instant matter our question is whether the actual victim is due insurance coverage. Furthermore, neither Needleman nor Jackson include sufficient factual history of the cases such that we can determine if the plaintiffs’ mental traumas escalated to include actual physical symptoms, as is present in the instant matter.

Nonetheless, we find that neither the legislature nor the Pennsylvania Supreme Court has yet to erect a bridge between bodily injury and mental injury, in the context of automobile insurance law; that is, a distinction between physical and psychological maladies remains, such that one who suffers psychological illness cannot successfully claim benefits under the MVFRL for “injury”. Though appellants argument is intriguing — that the current interpretation of the MVFRL separates the mind from the body, and ought not — we will not today begin further analysis into whether mental and bodily injury should be consolidated for the purposes of the MVFRL. That issue must be addressed, if at all, by the legislature or Supreme Court.

Therefore, accepting as true all material facts in appellants’ complaint and the reasonable inferences drawn therefrom, we hold that the law states with certainty that no recovery is possible, by means of the MVFRL or appellee’s policy, for mental injury which is not the result of a bodily injury. We thus affirm the trial court’s granting of appellee’s preliminary objections in the nature of a demurrer.

We reject appellants’ second claim, that the MVFRL violates the ADA, by simply noting that the ADA, which was not in effect at the time of Mr. Zerr’s accident, does not apply retroactively. See 42 U.S.C. § 12101, et seq.

Order affirmed.

      . Sandra L. Zerr, wife, was the named insured on the policy; Ralph E. Zerr, Jr., husband, was an insured driver under the same policy.

      . Repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Subchapter E of the MVFRL, at § 1751, et seq.


author: TAMILIA, Judge:

text:
    667 A.2d 240
    Roy A. RAPP and Margaret Rapp, H/W v. Ronald J. LORCH and The Equitable Life Assurance Society of the United States.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1995.
    Filed Nov. 9, 1995.

      Ralph D. Friedman, Jenkintown, for appellant.
    Joseph V. Cardona, Philadelphia, for appellees.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Ronald J. Lorch appeals from the September 16, 1994 entry of judgment following a nonjury verdict in appellees’ favor. The verdict awarded appellees twenty-five percent of all insurance commissions paid to appellant on appellees’ referrals, as determined by an independent accountant to be appointed in accordance with the verdict. The essential facts of this case are as follows.

In 1978, the parties entered into an oral agreement under which appellee/husband, Roy A. Rapp and his partner, Edmund F. Garno, would refer customers to appellant, a life insurance agent. The agreement also provided that the three individuals would equally split the commissions paid on any policy sales. In 1979, the arrangement was reduced to writing because appellee/husband and Garno were not receiving their share of the commissions from appellant as quickly as they would have liked. Also, appellee/husband and Garno had their wives licensed with appellant’s company, Equitable Life Assurance, so that commissions could be paid directly, rather than through appellant. The arrangement continued until 1985, when appellee/husband and Garno decided to terminate their business relationship. Thereafter, the dealings between appellees and appellant continued. Beginning in 1987, appellant began to sell a new insurance product, variable life insurance, which required a special license not possessed by appellees, although appellee-husband had been licensed in the past. In 1988, appellee-wife’s license with Equitable was terminated. Also in 1988, appellee/husband discovered that appellant had written both whole life insurance policies and variable life insurance policies on appellees’ referrals without paying to them a commission split. Appellees then filed suit for an accounting of commissions due on the sales. The trial court granted the accounting and awarded to appellees twenty-five percent of any discovered commissions. This appeal followed.

Appellant first claims that the agreement, as it relates to variable life insurance, was “illegal and thus unenforceable pursuant to Pennsylvania and Federal law because the appellees were not properly licensed[.]” (Appellant’s brief at p. 3.) Thus, appellant argues he should not be held to the contract he admits executing because appellees were not licensed to sell variable life insurance. In support of this argument, appellant cites 31 Pa.Code § 82.81(a), which provides as follows:

§ 82.81. Qualifications to sell variable life insurance.
(a) No person may sell or offer for sale in this Commonwealth a variable life insurance policy unless the person is an agent and has filed with the Commissioner, in a form satisfactory to the Commissioner, evidence that the person holds a license or authorization which may be required for the solicitation or sale of variable life insurance.

Appellant also cites, as follows, Restatement of the Law of Contracts, 2d, § 181:

Section 181 provides:
“If a party is prohibited from doing an act because of his failure to comply with a licensing, registration or similar requirement, a promise in consideration of his doing that act or of his promise to do it is unenforceable on grounds of public policy if
(a) the requirement has a regulatory purpose, and
(b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement.”

The provisions cited by appellant are, on their face, inapplicable to the instant litigation. Section 82.81 applies only to unlicensed individuals who “sell or offer for sale” insurance policies. Similarly, the “act” contemplated by section 181 of the Restatement, when applied to this case, is the sale of insurance by “a party prohibited from doing [so] because of his failure to comply with a licensing ... requirement----” The difficulty with appellant’s argument that these sections preclude enforcement of the agreement is that he does not and could not claim that appellees “sold or offered for sale” any insurance. Instead, appellant claims that the “public policy” behind these provisions “outweighs the interest in enforcement of the contract between the parties.” (Appellant’s brief at 10.) However, as appellant’s own insurance expert testified, the “public policy” advanced by these provisions is the preclusion of insurance sales to the public by unlicensed, and therefore untrained, inexperienced and possibly unscrupulous individuals (N.T., 1/10/94, pp. 124-125, 134-135.) Instantly, all the sales were made by a licensed and highly experienced agent, namely, appellant. Thus, the public policy concerns of the provisions cited by appellant were satisfied and do not operate to void the otherwise enforceable agreement entered by the parties.

Appellant next claims the trial court erred “in failing to find that the appellees abandoned their rights to claim commissions from appellant because the appellees by their own actions caused the termination of their commission contract with the underwriter.” (Appellant’s brief at 12.) In essence, appellant claims that the underlying agreement between the parties “ceased”, (Appellant’s brief at 13), when appellee/husband’s license to sell variable life insurance lapsed and when appellee/wife’s license with Equitable was terminated. However, since the licensing of appellees was independent of and irrelevant to the underlying contract between the parties, appellant’s argument is flawed. As noted, appelleeAvife became licensed merely in order to expedite performance of the agreement and the termination of her license could not therefore operate to nullify the agreement. This is clearly emphasized by the fact that the parties performed under the agreement prior to appellee/wife’s licensing. Moreover, the lapse of appellee/husband’s license to “sell or offer for sale” variable life insurance did not terminate appellees’ rights under the contract to receive commission splits when appellant, a licensed agent, sold the product. (See the foregoing discussion of 31 Pa.Code § 82.81.) In short, the licensing of appellees had no bearing on appellant’s duties under the agreement. Finally, we find appellant’s argument disingenuous. If appellant was truly concerned with the licensing status of appellees, he would have informed them of his continued sales to appellees’ referrals and afforded them the opportunity to become relicensed. Appellant’s failure to so inform appellees cannot now operate to validate his surreptitious retention of commission splits rightfully owed to them.

Appellant’s final claims challenge the trial court’s Order on the basis that it fails to exclude certain commission splits due on certain customers. These claims fail. Initially, the fact that the trial court ordered an accounting “of all commissions paid to defendant Lorch as determined by an [independent] accountant”, Order of 4/15/94, demonstrates that the court was unable to determine whether and for which customers commission splits were due. Thus, it would have been improper for the court to specifically exclude or include any individuals or any commissions. Further, appellant’s bases of appeal are, in reality, challenges to the weight of the evidence upon which the court ordered an accounting. As such, the arguments address a matter within the sound discretion of the trial court, Thompson v. City of Phila., 507 Pa. 592, 493 A.2d 669 (1985), and cannot succeed unless the court’s verdict “shock[s] one’s sense of justice”, Nudelman v. Gilbride, 436 Pa.Super. 44, 647 A.2d 233 (1994). Instantly, we find that the court’s Order of an accounting was the only appropriate response to the conflicting and incomplete evidence presented at trial. Hence, appellant’s final claims fail.

Based on the foregoing, we affirm the September 16, 1994 entry of judgment following a verdict in favor of appellees.

Judgment affirmed.

      . Although appellant does not cite any authority adopting section 181 as Pennsylvania law, we will address the argument.