author: ANDERSON, Judge: CAVANAUGH, Judge,

text:
    500 A.2d 130
    Sandra Marie SERHAN, Appellant, v. Charles Corey BESTEDER, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed Oct. 18, 1985.

      David L. Kurtz, Harrisburg, for appellant.
    Joseph J. Musto, Wilkes-Barre, for appellee.
    Before CAVANAUGH, WICKERSHAM and ANDERSON, JJ.

       Judge Levy Anderson, Senior Judge of the Court of Common Pleas of Philadelphia, County, Pennsylvania is sitting by designation.

   ANDERSON, Judge:

Appellant, Sandra Marie Serhan, plaintiff below, appeals from an Order of the lower court sitting en banc denying her motion for a new trial on the issue of damages only. Appellant argues that the trial court improperly refused to allow her to introduce her federal income tax returns as evidence of loss of past earnings and impairment of earning capacity, and that the court improperly refused to instruct the jury on those two items of damages.

We conclude that, as a matter of law, the plaintiff presented sufficient evidence of the nature of her injuries and the resultant disruptions to her drapery business to establish the existence of loss of earnings as well as impairment of earning capacity. We further conclude that there was sufficient evidence of the nature of plaintiffs business as well as her prior employment, so as to permit introduction of her income tax returns as proof of the amount of those items of damages. Finally, we conclude that the requested jury instructions should have been given.

During the early morning hours of November 13, 1977, twenty-six year old Sandra Marie Serhan was involved in an automobile accident. She suffered a compression fraction of thoracic 8 and 9 vertebrae which in turn has caused her to have neurogenic bladder disease. She has lost sensation and muscle control of her bladder and cannot urinate unless she takes a toxic medication. Her orthopedic and bladder problems had persisted to the time of trial, five years after the accident.

At the time of the accident, the plaintiff was the sole proprietor of Sara Sheen Draperies. She functioned as an interior decorator, visiting prospective clients in their homes to provide design ideas and to solicit work. In addition she maintained nine sewing machines in the basement of her home and made the draperies herself. She employed independent contractors to install the draperies and do slipcover work.

Prior to starting her own business in August, 1976, the plaintiff had been employed as an interior decorating consultant in a department store from 1973 to 1976.

The plaintiff experienced disability immediately following the accident. She felt very sharp radiating pains in her back which increased during the night. In the morning she found that she had wet her bed. She stayed in bed for one week. During that period she had pain in her neck, joints and back, and a lack of sensation in her bladder which she did not associate with the accident.

She saw Dr. Sternlieb, an orthopedic specialist on November 21, 1977. He advised her to take it very easy for the next six weeks. She followed the doctor’s orders, but pain in her neck, right arm and right leg continued. She also noticed that her abdomen was getting larger and larger and she was not able to urinate at will. Her bladder would not empty until it became very full.

She saw her family doctor, John Grablewski, M.D., on December 29, 1977, and again the second week of January 1978, and thereafter once a week. Her condition did not improve and on February 26, 1978, she was hospitalized. Her bladder condition worsened in the hospital and she was seen by a urologist, Dr. Rumbaugh. She was catheterized and underwent exploratory surgery. She was also given medication, Urecholine, for an unspecified period of time, to stimulate bladder activity. The plaintiff was discharged from the hospital on March 6, 1978.

She was treated by Dr. Grablewski for her neck and back problem and Dr. Rumbaugh for the bladder difficulty through February of 1980 on a regular basis. During that period Dr. Rumbaugh had to stretch her urethra surgically to facilitate urination. The plaintiff was receiving physical therapy and there was some improvement to her neck and back.

She was hospitalized in February 1980 for five days because of abdominal pain. Dr. Manju G. Mukerjee was called in for consultation because the plaintiff could not urinate and had to be catheterized. A cystoscopic examination was performed and Dr. Murkerjee put her back on Urecholine.

The plaintiff continued to see Dr. Mukerjee. She was hospitalized for the third time on March 17, 1980, after she was unable to void at all and her bladder had become very distended. She was given large doses of Urecholine and has been on that medication ever since.

She was hospitalized for the fourth time in April 1980, because she was not tolerating the Urecholine well and because she was again unable to void. Surgery was performed (a visual internal urethrotomy, during which incisions were made in the musculature of the urethra to reduce resistance). She continued to see Dr. Mukerjee regularly, first weekly and then every two weeks.

She was taught self-catheterization in the fall of 1980 because she was again having difficulty voiding. This procedure, however, resulted in frequent bladder infections. After one of these catheterizations she found blood in her urine.

In February 1981, she was hospitalized for the fifth time, for one week. Surgery was performed. She was catheterized for three days thereafter.

During this period she was still experiencing pain in her neck and back. She had regular visits with Dr. Mukerjee.

In November of 1981 she was hospitalized for the sixth time, for a period of two weeks, and more extensive surgery on her urethra was performed.

The testimony concerning the physical problems experienced by the plaintiff from November 1977 to the time of trial, which included six hospitalizations and four or five surgical procedures, was, we find, in and of itself sufficient to prove a disruption to her business and lay the foundation for proof of the amount of loss of earnings.

In addition, however, plaintiff provided specific testimony concerning disruption to her business. Miss Serhan testified that she did not work at all for two weeks after the accident, and after that was only able to handle the work by subletting it to others because she could not lift heavy bolts of fabric by herself or do the sewing.

She said that during her first hospitalization in February of 1978, she was not able to conduct her business at all and that she received many phone calls from customers concerned about her absence. Without doing an injustice to the defendant, it can be reasonably inferred that Miss Serhan was neither personally visiting clients in their homes nor cutting and sewing draperies during her five subsequent hospitalizations, nor was she doing so during numerous doctors’ appointments.

Plaintiff testified that from 1978 to 1981, she could not cope with much physical activity and could not do a lot of work. Before the accident she made all the draperies herself. Since the accident, the plaintiff sometimes has had to sublet the work because she cannot fulfill her obligations.

The plaintiff’s brother, David W. Serhan, testified that after the accident “[h]er business seemed not to be as well. She wasn’t able to put as much time into it and enthusiasm as she had in the past____ She spent a lot of time in bed.” [N.T. 101a]. He testified further that he observed his sister on several weekends from September 1979 to the time of trial and that “[h]er business took a drop in her calls. Her business suffered a loss it seemed. She wasn’t as active as she had been in the past.” [N.T. 106a].

All of this evidence was more than sufficient to prove that the plaintiff sustained losses as a result of her injuries. The question then remained, how the plaintiff was to prove the amount of those losses.

To that end, the plaintiff testified about the conduct of her business; her capital investment in machinery, equipment and supplies; and her gross receipts and profits during 1977 from Schedule C of her income tax return. She detailed how the latter amount was calculated. Based on the above testimony, the plaintiff attempted to introduce Schedule C of her federal tax returns for 1977 through 1981. The trial court denied the motion, and refused to instruct the jury on lost earnings to the time of trial.

The reason set forth in the opinion below for these rulings is that the net earnings of the business was not an accurate measure of the value of plaintiffs services to the business. We do not agree. In many cases, the appellate courts of this Commonwealth have held that where a business is small and the income which produces it is due principally to the personal services and attention of the owner, the net profits of the business may afford a reliable measure of the owner’s earnings.

In Bell v. Yellow Cab, Co., 399 Pa. 332, 160 A.2d 437 (1960), the Pennsylvania Supreme Court held:

“Ordinarily, earnings which represent the result of combined capital and personal services is not capable of establishing the earning power of the servitor. Where, however, the business is small and the income which it produces is principally due to the personal services and attention of the owner, the earnings of the business may afford a reliable criterion of the owner’s earning power. As recognized in Offensend v. Atlantic Refining Company, 322 Pa. 399, 404-405, 185 A. 745, ‘The general rule is that profits derived from a business are not to be considered as earnings and cannot be admitted as a measure of loss of earning power, but where they are almost entirely the direct result of personal management and endeavor, they are an accurate measure of earning capacity and admissible as such: Dempsey v. City of Scranton, 264 Pa. 495 [107 A. 725], and authorities cited therein; Pietro v. P.R.T. Co., 298 Pa. 423 [148 A. 520].’ It was on this theory that the testimony of the plaintiff’s diminished earnings was introduced and the trial judge acted properly, in the circumstnaces, in receiving it in evidence for the purpose for which it was offered.” 399 Pa. at 339, 160 A.2d at 441-42.

Following this ruling, our Court held in Defulvio v. Holst, 272 Pa.Super. 221, 414 A.2d 1087 (1979):

“ ‘We have never held that damages that are not capable of exact ascertainment are for that reason not recoverable.’ Ashcraft v. C.G. Hussey and Co., 359 Pa. 129, 58 A.2d 170 (1948)(emphasis in original). Although the general rule precludes use of earnings of a business as proof of lost earning power, ‘[w]here, ..., the business is small and the income which it produces is principally due to the personal services and attention of the owner, the earnings of the business may afford a reliable criterion of the owner’s earnign power.’ Bell v. Yellow Cab Co., 399 Pa. 332, 339, 160 A.2d 437, 441 (1960). ‘Therefore, “Each case must depend on the nature and extent of the business, the amount of personal direction and labor of the party engaged in connection therewith, as well as the amount of capital invested and the labor employed.” ’ Id., 399 Pa. at 340, 160 A.2d at 442 (quoting Baxter v. Philadelphia & Reading Railway Company, 264 Pa. 467, 475, 107 A. 881, 884 (1919)). Thus, for example, in Faber v. Gimbel Brothers, 264 Pa. 1, 107 A. 222 (1919), our Supreme Court held that evidence of earnings from a partnership of which plaintiff was a member both before and after the accident was admissible to show decreased earning power as a result of the injury. The Court in Faber considered the fact that both partners devoted their entire time to the business and the nominal capital investment in the auto repair enterprise as factors relevant" to its decision.
“The business in question in this case was a small partnership which required the full time and attention of the two partners and employed no other • workers. As in Faber, the business was a repair service, and therefore, required little capital investment. We conclude that this case is within the exception to the general rule preventing admission of evidence of earnigns from a business to prove impaired earning capacity.” 272 Pa.Super. at 226-27, 414 A.2d at 1090-91.

In explaining the trial court’s ruling the opinion below states:

"... Plaintiff’s income from her business after 1976 would not have properly shown loss of earning power, since the profits from her business were derived from the labor and skills of several individuals. The true test was the value of her services to the business, not her earnings. James v. Ferguson, 401 Pa. 92, 95 [162 A.2d 690] (1960).” (Op. p. 4).

Specifically, the opinion cites the fact that “Plaintiff stated she must ‘sublet’ her work when she ‘cannot fulfill’ her obligations.” (Op. p. 3).

We find that the nature of the plaintiff’s business clearly falls within the parameters of Bell v. Yellow Cab Co., supra, and the cases decided thereafter.

Miss Serhan’s business was very small in scope. In 1977 she grossed only $11,805.00. Her profit was $4,237.00. Her capital investment involved principally the purchase and installation of sewing machines in her basement. Virtually, the entire business was based on her labors. She acted as an interior decorator and visited customers in their homes to solicit contracts, and before the accident she made all the drapes herself. She used independent contractors for installation and slipcover work only. The fact that she had the expense of subletting drapery work after the accident was a clear measure of a portion of her damages and proof of the value of her services to the business, not a reason to deny her a recovery. Under those circumstances, the tax records were admissible to prove the amount of the loss. See Defulvio v. Holst, supra. An appropriate instruction regarding lost earnings should have been given.

With respect to impairment of earning capacity, the law requires only proof that the injured person’s economic horizons have been shortened as a result of the tortfeasor’s negligence. Holton v. Gibson, 402 Pa. 37, 166 A.2d 4 (1960); Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985); Janson v. Hughes, 309 Pa.Super. 399, 455 A.2d 670 (1982).

In fact, our Supreme Court has said:

“The consideration of loss of earning capacity is not solely the comparative amount of money earned before or after an injury. The true test is whether or not there is a loss of earning power, and of ability to earn money.”

Mazi v. McAnlis, 365 Pa. 114, 121, 74 A.2d 108, 112 (1950). See also Powell v. City of Philadelphia, 311 Pa.Super. 526, 532, 457 A.2d 1307, 1309 (1983); Wright v. Engle, 256 Pa.Super. 321, 326, 389 A.2d 1144, 1147 (1978).

The plaintiff provided more than sufficient evidence linking her injuries to loss of earning capacity.

At the time of trial, the plaintiff was still seeing Dr. Mukerjee every two months. Dr. Mukerjee testified that Miss Serhan is partially disabled as a result of her bladder condition, which appears to be permanent. She is totally dependent upon Urecholine to stimulate urination and such dependence may be life-long. He testified that the medication is being given in extremely toxic doses and such treatment involves risk and danger. Periodic surgery, specifically internal urethrotomies to reduce resistance in the urethra, will be necessary. The plaintiff testified that she must measure her intake of fluids against her output of urine. She takes Urecholine four times daily, at 6:00 A.M., noon, 6:00 P.M. and midnight, and if she misses a single dose she must resort to self-catheterization, which sometimes results in infection. Besides the difficulty caused by the 6:00 A.M. and midnight doses of medication, the plaintiff has trouble sleeping because of orthopedic problems. The drug also causes unpleasant side effects, such as nervousness, and increases in perspiration and salivation.

Miss Serhan was also seeing Dr. Grablewski monthly at the time of trial. He testified that “[s]he has a chronic back injury, which is going to last her____” [N.T. 125a].

The plaintiff testified with respect to her orthopedic problems:

“I’m better now but not all better. I still have neck and a lot of sharp back pain in the same place, and in the lower right hip still weakness, caving sensation. Sitting for long periods of time bothers me. Sharp movements will bother me____” [N.T. 95a].

She also said that movement of her right arm aggravates her back and she constantly uses the arm. Pain in that arm extends down through two fingers. She was still experiencing problems with her right leg.

At the time of trial, Miss Serhan was still subletting work to others which she did herself before the accident.

Miss Serhan’s chronic orthopedic problems coupled with her bladder disfunction caused disruptions to her business up to the time of trial, which was five years after the accident. The medical testimony was that her condition is permanent. There is no reason to conclude that her medical problems will not cause the same type of business disruptions in the future as they did in the past.

The opinion of the court below states: “... we have no testimony indicating Plaintiff’s injuries affect her ability to perform her occupation.” [Op. p. 2]. This finding is clearly erroneous. An instruction on impairment of earning capacity should have been given.

Counsel for plaintiff requested that, in addition to Miss Serhan’s income tax returns for the years 1977 through 1981, those for the three previous years when she worked at a department store as an interior decorator be admitted into evidence as proof of earning capacity. The court denied that request. Since impairment of earning capacity had been established, the earlier tax returns, as well as plaintiff’s business returns, were admissible to prove her earning power. See Sherin v. Dushac, 404 Pa. 496, 172 A.2d 577 (1961); Lewis v. Pruitt, supra.

In the case sub judice, the jury awarded plaintiff $15,-000. 00. Because substantial trial errors resulted in this shockingly low verdict, a new trial on the issue of damages is necessary.

Reverse and remand for a new trial on the issue of damages only. Jurisdiction is relinquished.

WICKERSHAM, J., joins in this opinion.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. Following a jury verdict in her favor, Sandra Marie Serhan filed a motion for a new trial on the question of damages only. The lower court, sitting en banc, denied that motion. This appeal then followed wherein appellant raises two issues for our consideration:

(1) Whether the trial court erred in refusing to admit into evidence appellant’s income tax records?
(2) Whether the trial court erred in denying appellant’s request for jury instructions regarding loss of past earnings and reduction of earning capacity?

For the reasons which follow, I find no merit to appellant’s contentions and would affirm the order of the trial court.

Income Tax Returns

The accident in which the appellant was injured occurred on November 13, 1977. Ms. Serhan at that time was engaged as the sole proprietor of an interior decorating business, Sara Sheen Draperies, which she had started in August of 1976. She testified that until January, 1976, she had been employed by Bergman’s Department Store as an interior decorating consultant. At the trial in October 1982, the appellant sought to introduce copies of her federal income tax returns from 1973 through 1975 and 1977 through 1981 for the purpose of showing loss of earnings and reduction of earning capacity. The trial court sustained the appellee’s objection to this proferred evidence and refused to allow its admission.

It is an often-stated tenet of the law that “questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion.” Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 211, 478 A.2d 34, 38 (1984). See also Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983); Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978). It is against this standard that this court should evaluate the trial court’s ruling on Ms. Serhan’s tendered proofs.

In order to support her claim for earnings lost between the time of the accident and the date of trial, the appellant proposed to introduce copies of her federal tax returns. During this period, the appellant was operating her sole proprietorship. The trial court, within its discretion, disallowed this evidence on the grounds that the appellant had not laid the proper grounds for its admission.

In order for an injured plaintiff to recover damages for lost past earnings, it must be proven that such a loss in fact was suffered and that it was the proximate result of the defendant’s act or omission. Moreover, these losses must be proven to a reasonable degree of certainty and not left to speculation and conjecture. Gordon v. Trovato, 234 Pa.Super. 279, 338 A.2d 653 (1975). In the case of a person employed on an hourly wage basis for example, it is frequently sufficient for the plaintiff to show that as a result of the injuries sustained in the accident, he was unable to perform his occupational duties and therefore unable to earn his hourly wage. There is a direct relationship in such a situation between hours lost and earnings lost.

However, in the present case the appellant operated her own business for which she did not receive a specific salary. Her earnings, or losses, were those of the business and, although they bore some relationship to the appellant’s labors, they were also influenced by outside forces. For example, as the appellant testified, she often relied upon the services of other non-employees. Certainly their work affected the profitability of Sara Sheen Draperies.

Due to the nature of Ms. Serhan’s employment her claim for loss of earnings is perhaps more akin to a claim for a loss of profits. The standard of proof in such a case has been defined as follows:

It is well settled that lost income or profit is recoverable in an action for the destruction or interruption of an established business, whenever they are not merely speculative or conjectural. In general, a court has the power to award damages up to the date of the ultimate judgment of the case. Rea v. Ford Motor Co., 560 F.2d 554, 557 (3d Cir.1977), cert. den. 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281. Where lost income is redeemable, however, “the testimony must show with a fair degree of certainty not only the diminution of income or profit but that it is fairly attributable to the wrong complained of. See Platou v. Swanton, 59 N.D. 466, 474-75, 230 N.W. 725, 728 (1930).

Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 126, 464 A.2d 1243, 1261 (1983). (emphasis added).

At trial, the appellant testified that she had been hospitalized several times between November 1977 and October 1982 to receive treatment for injuries suffered in the automobile accident. She also stated that, at least during the first eight-day hospitalization, she was unable to “conduct her business”. Otherwise, the record indicates that Ms. Serhan returned to work shortly after the accident. Beyond this the only evidence relating to lost earnings were the prof erred tax returns.

I note initially that, with the possible exception of appellant’s 1977 income tax return, we have no indication as to what the excluded evidence would have revealed. Accordingly, I do not believe that we can properly conclude that the tax returns would have demonstrated that the appellant (or Sara Sheen Draperies) actually lost income following the accident. The burden is on the appellant to show “with a fair degree of certainty” the diminution of income. Dela-hanty, supra. On the record before us, I would not find that the trial court acted improperly in refusing to admit the 1977-1981 tax returns.

Moreover, notwithstanding whether the tax returns would have evinced a loss, the appellant also failed to introduce any testimony that the claimed losses were “fairly attributable to the wrong complained of.” Delahanty, supra. Although Ms. Serhan stated that she was hospitalized and, on one occasion, unable to work, she never testified that as a result she was unable to secure new business or fulfill prior contracts. Unlike the hourly wage earner, Ms. Serhan’s absence from work would not necessarily translate into a loss of earnings. Because the appellant failed to satisfy this prerequisite of laying an adequate foundation for her claim, in my opinion the trial court did not abuse its discretion in rejecting the proferred tax returns.

In order to support her claim for reduction of earning capacity, the appellant proposed to introduce into evidence her federal tax returns for 1973 through 1975, when she was employed by Bergman’s Department Store, and for 1977 through 1981, when she was self-employed. The trial court also refused to admit this proof.

At trial, the appellant presented evidence of the injuries which she suffered as a result of the motor vehicle accident: continuous neck and back problems; pain in her right leg and arm; bladder injury necessitating regular medical attention, including the continuous use of prescription medications; and the likelihood of long-term surgical and drug treatments for her bladder condition. The jury, in answer to a special interrogatory, found that the appellant’s injuries were both serious and permanent.

It is the law of this Commonwealth that “[i]n order to collect for the loss of future earnings, a plaintiff must establish that his economic horizon has been shortened.” O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 280, 423 A.2d 1251, 1255 (1980). In satisfying this burden of proof, more is required than simply showing permanent injury. See, e.g., Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923 (1944); Carroll v. Pittsburgh Rys. Co., 200 Pa.Super. 80, 187 A.2d 293 (1962). Rather, the plaintiff’s burden has been outlined as follows:

The loss of earning power and its amount must appear by proper and satisfactory proof and not left to mere conjecture: Frysinger v. Phila. R.T. Co., 249 Pa. 555, 560 [95 A. 257, 259 (1915)]. The value of such services as plaintiff performed prior to the accident and of such as she could perform thereafter, was the subject of proof, without which no recovery for diminution thereof can be sustained (Kost v. Ashland Borough, 236 Pa. 164 [84 A. 691 (1912) ] for, before an allowance can be made for loss of earning power, it must be fairly proved: Helmstetter v. Pitts. Rys. Co., 243 Pa. 422 [90 A. 203 (1914) ]. “Earning power which is to be compensated in such cases must necessarily be the subject of substantive proof.” (Bog-gess v. B. & O. Railroad Co., 234 Pa. 379, 390 [83 A. 356, 360 (1912)]), without which it is error to submit the question to the jury: McKenna v. Citizens’ Natural Gas Co., 198 Pa. 31 [47 A. 990 (1901) ].

McCaulif v. Griffith, 110 Pa.Super. 522, 532, 168 A. 536, 540 (1933) (quoting Zimmerman v. Weinroth, 272 Pa. 537, 540, 116 A. 510, 511 (1922)). Thus, while the plaintiff need not prove the extent of his loss to a degree of mathematical certainty, “there must be some evidence from which a jury can reasonably infer that earning power will probably be reduced or limited in the future.” Kearns v. Clark, 343 Pa.Super. 30, 42, 493 A.2d 1358, 1364 (1985).

A fair degree of latitude is often afforded to the jury in this regard. For example, in a case where a claim for loss of future earning capacity was made on behalf of an eighteen year old college student, this court opined: “Where, as here, the evidence discloses the age, physical and mental conditions, and habits of the injured person, a determination of future earning capacity may be made by the fact-finder in reliance upon the knowledge and common sense acquired through the experiences of life.” Marinelli v. Montour R. Co., 278 Pa.Super. 403, 419, 420 A.2d 603, 611 (1980) (citations omitted). Similarly in other instances the court has allowed impairment of earning capacity to go to the jury on evidence of the nature of the plaintiffs occupation and his injuries. See, e.g., Gary v. Mankamyer, 485 Pa. 525, 403 A.2d 87 (1979) (lay evidence concerning the nature of plaintiffs duties as a practical nurse and the difficulties which she experienced in performing those duties following the accident was sufficient to take the question of the extent of her disability and its impact on her earning capacity to the jury); DiChiacchio v. Rockcraft Stone Products Co., 424 Pa. 636, 225 A.2d 913 (1967) (evidence that carpenter would suffer indefinitely from nervousness and dizziness and that as part of his occupational duties he was required to climb ladders and scaffolds was sufficient to allow jury to find reduction of earning power); Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983) (plaintiffs own testimony that he could no longer perform his job as a print press operator due to permanent injury to his knees was sufficient to afford the jury a reasonably fair basis on which to determine loss of earning capacity). In those cases, the evidence was such that the jury could reasonably infer a reduction in earning capacity based on their own knowledge and experiences.

In other instances, however, it is necessary for the plaintiff to produce more direct evidence that the injuries suffered will effect a reduction in earning capacity. For example, in Powell v. Montgomery, 27 Ohio App.2d 112, 272 N.E.2d 906 (1971), the plaintiff sustained a variety of personal injuries including permanent damage to his wrist. At the time of the accident, the plaintiff was employed as a factory worker for General Motors, although the specifics of his duties were apparently not disclosed at trial. In considering his claim for loss of earning capacity, the Ohio court analogized to claims for future pain and suffering:

The general rule appears to be that if the injury is of an objective nature (such as the loss of an arm, leg, or other member) the jury may draw their conclusions as to future pain and suffering from that fact alone (the permanency of such injury being obvious); whereas there must be expert evidence as to future pain and suffering or permanency where the injury is subjective in character.

Id. at 119, 272 N.E.2d at 911-12 (quoting Day v. Gulley, 175 Ohio St. 83, 86, 191 N.E.2d 732, 734 (1963)). The court continued, holding that “if the injury is such that by its nature, impairment of earning capacity must necessarily follow, additional evidence would be unnecessary to establish such impairment. We are of the view, however, that the evidence of injury in this case [where a general factory worker suffers permanent injury to his wrist] is not of that nature.” Powell, 27 Ohio App.2d at 122, 272 N.E.2d at 913. In certain circumstances, therefore, the plaintiffs burden in establishing a reduction of earning capacity requires more than showing the nature of the injury and the general nature of the plaintiffs occupation; rather, there must be specific evidence showing that the injury will prevent the plaintiff from engaging in a particular type of work. Cf. Janson v. Hughes, 309 Pa.Super. 399, 455 A.2d 670 (1982) (requirement satisfied by evidence from plaintiff’s experts that plaintiffs injury would preclude his engaging in work involving heavy lifting).

In the case at bar, the appellant presented testimony regarding the nature and permanency of her bladder condition. That evidence disclosed that Ms. Serhan must monitor her daily intake of fluids and that she must take Urecholine four times daily, a drug designed to stimulate the bladder for urination. She also stated that at the time of trial she felt soreness in her neck and back and pain in her right arm and leg. One of her experts, Dr. Groblewski, testified that “she [appellant] has a chronic back injury, which is going to last her, and then she has a bladder dysfunction.”

With respect to her business, the appellant offered only a general description of her occupational duties. She testified that she consults with clients in their homes concerning decorating ideas (she was the “chief salesperson”) and only that she owns several “machines for the ocnstruction of the draperies and slipcovers.” Appellant failed to articulate, beyond what has been stated, any of the physical demands of her work from which the fact-finder could infer an impairment of capabilities in light of her injuries. Moreover, appellant failed to introduce any direct evidence in the form of either her own testimony or that of an expert, that her ability to perform her occupational chores was in any way curtailed by her injuries or would be hindered in the future. Absent some proof, either direct or by reasonable inference, that the appellant’s physical condition affected her ability to produce an income, Ms. Serhan failed to sustain her burden of proof, thereby removing from the case any issue of reduced earning capacity. Accordingly, any evidence of her earnings to show such loss was properly excluded by the trial judge within the just exercise of his discretion.

Additionally, even if the evidence was sufficient to support a finding of loss of earning capacity, the tax returns for 1977-1981 proferred by the appellant would nevertheless have remained inadmissible. Inasmuch as the appellant was operating her sole proprietorship during those years, the tax returns would indicate the profits or losses of the business.

The pertinent rules are that profits realized from a business with invested capital or which employs the labor and skill of several individuals may not be shown to establish loss of the owner’s earning power. This is the general rule: James v. Ferguson, 1960, 401 Pa. 92, 162 A.2d 690; Bell v. Yellow Cab Co., supra, 399 Pa. 332, 160 A.2d 437; Dempsey v. City of Scranton, 1919, 264 Pa. 495, 107 A. 877; Baxter v. Philadelphia and Reading Railway Co., 1919, 264 Pa. 467, 107 A. 881, 9 A.L.R. 504. The reason, of course, is that profits are generally speculative, may come from sources other than the owner, and are usually dependent on other factors, such as the condition of the market, the value of labor, the availability of credit, and the like. In such cases the measure of loss of earning power is the value of the owner’s services in the business.
On the other hand there are exceptional cases of small, personal businesses where little capital or labor is needed and where in consequence the profits are the direct result of the owner’s labor and so are the best available measure of his earning power: see cases cited just above.

Sherin v. Dushac, 404 Pa. 496, 172 A.2d 577, 578 (1961).

I do not believe that the record supports a finding that the appellant falls into the latter category of “exceptional cases.” On the contrary, the evidence presented at trial revealed as the en banc lower court noted:

Plaintiff’s business utilizes nine machines; an improved workshop; “paraphenalia” related to a “drapery, slipcover upholstering” business; “quite a lot of things to handle, samples, a very, very immense amount of displays;” and a large work area “for all the machinery and equip-ment____” Likewise Plaintiff stated she must “sublet” her work when she “cannot fulfill” her obligations.

Lower court op. at 3. Accordingly, it appears that the appellant’s business is one which is “invested with capital or which employs the labor and skill of several individuals.” Sherin, supra. The profits of this business, as reflected on Ms. Serhan’s tax returns, therefore could not be shown to establish loss of earning power. Hence, the trial court properly refused to admit that evidence.

Requested Jury Instructions

The second issue raised by the appellant is whether the trial court erred in refusing to charge the jury on loss of past earnings and reduction of earning power, as requested by the appellant. (Again, however, this court does not have the benefit of reviewing the specific charges proposed by the appellant in the trial court.) As detailed above, (1) the appellant failed to offer sufficient evidence to raise an issue of lost past wages and (2) the appellant failed to offer sufficient evidence to raise the question of diminished earning capacity. The trial court therefore properly refused to instruct the jury on these claims for damages.

For the foregoing reasons, I would find that the appellant is not entitled to a new trial.

      . The earlier tax returns were also admissible to prove the value of plaintiff’s interior decorating services to Sara Sheen Draperies. She-rin v. Dushac, supra.

      . Proof of a loss or impairment of earning capacity has been described as follows:
      The extent of future harm to the earning capacity of the injured person is measured by the difference, viewed as of the time of trial, between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm. This difference is the resultant derived from reducing to present value the anticipated losses of earnings during the expected working period that the plaintiff would have had during the remainder of his prospective life, but for the defendant’s act. (On the determination of the prospective length of life, see Comment e). Accordingly, the trier of fact must ascertain, as nearly as can be done in advance, the difference between the earnings that the plaintiff probably would or could have received during his life expectancy but for the harm and the earnings that he will probably be able to receive during the period of his life expectancy as now determined. In this computation, there are considered the type of work that the plaintiff has done and the type of work that, in view of his physical condition, education, experience and age, he would have been doing and will be likely to do in the future during the working period of his life, together with all other matters reasonably relevant.

      Restatement (Second) of Torts § 924 comment d (1979) (emphasis added). Thus, in showing reduction of earning capacity, the plaintiff may attempt to prove an impairment of his ability to perform the requirements of an occupation in which he has been employed and/or an occupation in which he likely would have been employed, but for the accident. Compare Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982) (loss of earning capacity based on plaintiff's prior employment as truck driver) with Hall v. George, 403 Pa. 563, 170 A.2d 367 (1961) (lost earning capacity of 18 year old student based on evidence of his ambitions to be a school teacher). See also Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985) (where plaintiff had not been regularly employed as beautician for 16 years prior to the accident, but had maintained her license and skills as a beautician, practiced her trade on a casual, part-time basis, and engaged in discussions pointing toward a return to that occupation, question of impairment of earning capacity was properly submitted to the jury); Gottlob v. Hillegas, 195 Pa.Super. 453, 171 A.2d 868 (1961) (issue of reduced earning capacity properly excluded where plaintiff offered no evidence that she had ever been gainfully employed or that she would be employed in the future).

      . With respect to appellant's prior employment at Bergman’s Department Store, she stated simply: "At Bergman’s I was responsible for the custom drapery department and getting to many, many customers as an interior decorating consultant with draperies, heavy clientele.”

      . Additionally, while appellant testified that certain of her social activities were restricted as a result of the accident, she did not suggest that she had inténded or was prepared to enter into a profession or occupation in which she would have been similarly restricted. See note 2 supra.

      . I do note, however, as did the court in Massman v. City of Philadelphia, 430 Pa. 99, 241 A.2d 921 (1968), that the appellant's injuries and the inconvenience they may cause are not to be disregarded. Rather, those factors ought to have been taken into consideration by the jury in determining appellant’s pain and suffering.

      . Ms. Serhan also explained on cross-examination:
      There’s a system in the drapery business where you arrange to have work sewn, like slipcovers, installation work. In the business, I can’t do everything myself that I’m not equipped to do. I have a person who does installation of drapery rods, I have another person who does the slipcover sewing....
      N.T. at 225.

      . Cf. DeFulvio v. Holst, 272 Pa.Super. 221, 414 A.2d 1087 (1979). In DeFulvio, the plaintiff was engaged as a partner in a commercial refrigerator and air conditioning repair business. The business employed no workers other than the two partners and it required little capital investment. Accordingly, that court concluded that the case was within the exception to the general rule and evidence of the partnership’s earnings was admissible to show the plaintiff’s impaired earning capacity.


source: Caselaw Access Project

author: SHOYER, Judge: SPAETH, President Judge,

license: Public Domain

text:
    500 A.2d 141
    Jerry W. LEWIS, Appellant, v. SCHOOL DISTRICT OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed Oct. 25, 1985.

      Paul M. Perlstein, Philadelphia, for appellant.
    Martin Horowitz, Philadelphia, for appellee.
    Before SPAETH, President Judge, and JOHNSON and SHOYER, JJ.

       The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   SHOYER, Judge:

This case is an appeal from an Order of the lower court denying Petitioner’s motion to compel arbitration by his employer.

The appellant, while in the course of his employment, was injured in an automobile accident caused by an uninsured motorist. The appellant received workmen’s compensation benefits from his employer and then demanded uninsured motorist benefits. The employer, appellee herein, denied these benefits. The appellant then filed a Petition to Compel Arbitration citing Modesta v. SEPTA, 503 Pa. 437, 469 A.2d 1019 (1983). This petition was denied and this appeal followed.

The appellant claims that because of the holding in Modesta, that self-insureds are required to maintain uninsured motorist coverage under the Uninsured Motorist Act, he is entitled to such benefits.

The appellee, in its brief, contends that the appellant’s recovery is limited to the benefits received under the Workmen’s Compensation Act.

The lower court, in its opinion, cited Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980), for the authority that workmen’s compensation is the exclusive means of recovery for an employee injured in the scope of his employment. The lower court correctly stated that while Modesta holds that self-insurers must provide uninsured motorist coverage such insurance does not compel coverage to an employee covered by workmen’s compensation, but is reserved for those not injured in the course of their employment.

We affirm.

In Turner v. SEPTA, 256 Pa.Super. 43, 389 A.2d 591 (1978) (a unanimous opinion by the full Court), an employee of SEPTA was injured in a collision between the bus he was driving and another vehicle. This Court, in denying the employee’s claim for no-fault benefits, stated that an injured employee’s sole remedy against his employer is the Workmen’s Compensation Act. Section 303, 77 P.S. § 481(a) of the Workmen’s Compensation Act states as follows:

“(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.” (Emphasis supplied)

This section of the Act, as amended, became effective on February 3, 1975. The Uninsured Motorist Act, as amended, became effective on January 1, 1969. We believe the language and reasoning in the Turner case can be applied to a claim by an employee for uninsured motorists benefits as well as No-fault benefits. In Footnote No. 2 in Turner, it is stated:

“2. Were we to decide that the Workmen’s Compensation Act and the No-fault Act were in any manner irreconcilable, the iron-clad exclusivity provision contained in the 1974 amendment to Section 303 would control. ‘Whenever the provisions of two or more statutes enacted finally during the same General Assembly are irreconcilable, the statute latest in date of final enactment irrespective of its effective date, shall prevail.’ Statutory Construction Act, Act of May 28, 1937, P.L. 1019, art. IV, § 65, 46 P.S. § 565.
“We are of the opinion that if any exception had been created by the No-fault Act, the legislature would surely have seen fit to incorporate the exception when it amended Section 303 of the Workmen’s Compensation Act. ‘Any question as to the intention of the legislature that the remedy created by the Workmen’s Compensation Act be exclusive is removed by [the 1974 amendment].’ ...” The opinion of the majority in Wagner, supra, relied on

Turner and upheld its reasoning despite a strong attack made by the minority. It should also be observed that the Modesta Court in Footnote No. 3 stated that the Uninsured Motorist Act and the No-Fault Act “both ... relate to the same class of persons and deal with the same subject, they are in pari materia and must be construed together.”

We believe that the legislature has clearly indicated its intentions to exclude employees injured in the scope of their employment from both No-fault and Uninsured Motorists’ benefits, leaving their only remedy the benefits under the Workmen’s Compensation Act.

Affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I should hold that the Workmen’s Compensation Act does not bar appellee’s liability to pay uninsured motorist benefits.

Modesta v. SEPTA, 503 Pa. 437, 469 A.2d 1019 (1983), establishes the employer’s responsibility to provide uninsured motorist coverage. There the Court held that it was of no consequence that the employer was self-insured. Modesta does not, however, control our decision here, for there the claimant was not the driver of the employer’s motor vehicle but a passenger. The question we must decide, therefore, is whether the employer’s responsibility to provide uninsured motorist coverage is for some reason eliminated when the claimant is an employee who was injured while in the course of his employment. Appellee argues, and the trial court held, that the responsibility is indeed eliminated by the provision of the Workmen’s Compensation Act that

[t]he liability of an employer under this act shall be exclusive and in place of all other liability to such em-ployes____ 77 P.S. § 481(a).

I am not persuaded by this argument. Appellee’s responsibility under Modesta to provide uninsured motorist coverage was not a “liability of [appellee as] an employer.” When a carrier, or a self-insured, provides uninsured motorist coverage, it is providing coverage, not for its own liability, but for the liability of someone else, who should have had but did not have his own coverage. 40 P.S. § 2000(a); Estate of Rosato v. Harleysville Mutual Casualty Co., 328 Pa.Super. 278, 476 A.2d 1328 (1984) (Uninsured Motorist Act ensures that innocent victims recover damages they would have received if uninsured tortfeasor had insurance); Provident Washington Insurance Co. v. Rosato, 328 Pa.Super. 290, 476 A.2d 1334 (1984) (same). The bar of the Workmen’s Compensation Act is therefore inapplicable.

Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980), is not to the contrary. There the employee’s claim was not for uninsured motorist benefits but for No-fault benefits. The essence of the No-fault Act is that it eliminated any cause of action by the claimant against the other driver. Brunelli v. Farrelly Bros., 266 Pa.Super. 23, 28, 402 A.2d 1058, 1060 (1979). Therefore, the responsibility of an employer to provide No-fault coverage was a responsibility to provide coverage for the employer’s own liability. It was on this basis that the Court in Wagner held that the employer’s liability under the No-fault Act as to an employee was barred by the Workmen’s Compensation Act.

I should reverse the order of the trial court and remand the case for arbitration.

      . Uninsured Motorist Act, Act of August 14, 1963, P.L. 909, as amended December 19, 1968, P.L. 1254, No. 397, effective January 1, 1969, 40 P.S. Secs. 2000, et seq.

      . Workmen’s Compensation Act, 77 P.S. § 481(a), as amended 1974, December 5, P.L. 782 No. 263, § 6, effective in 60 days.


author: PER CURIAM: BECK, Judge, TAMILIA, Judge,

text:
    500 A.2d 144
    COMMONWEALTH of Pennsylvania v. Detlev TESSEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1984.
    Filed Oct. 25, 1985.

      JoAnne F. Tyler, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and TAMILIA, JJ.
   PER CURIAM:

The judgments of sentence for burglary, receiving stolen property, and criminal trespass are affirmed.

SPAETH, President Judge:

This is an appeal from judgments of sentence for burglary, receiving stolen property and criminal trespass. Appellant argues 1) that the trial court erred in admitting appellant’s confession into evidence because the Commonwealth did not establish the corpus delicti of burglary by independent evidence; 2) that the guilty verdicts for both theft and burglary were erroneous; and 8) that trial counsel was ineffective in failing to move to suppress appellant’s confession. We find appellant’s arguments to be without merit. We therefore affirm the judgment of sentence for burglary.

The incident out of which this case arises occurred on November 6, 1980, at the Treadway Motor Inn in Northeast Philadelphia. At approximately 1:00 a.m., two women, Lisa Haley and Judy Kennedy, registered at the inn. The night auditor, Leon Gates, gave them the key to room 217. (N.T. at 28) About twenty minutes later, the women returned to the desk and asked for a larger room. Gates assigned them to room 212, and they returned the key to room 217. (N.T. at 27-29) No one checked room 217 when the key to it was returned. Some time later, however, Gates heard a “rumbling noise” above him, and after calling the police, he went to the landing to investigate. There he and apellant saw each other in the hallway, and appellant turned and walked away in the opposite direction. (N.T. at 30-31) At an unspecified time later in the morning, Gates went to check room 217 and discovered that the television set was missing. (N.T. at 31, 34)

The next afternoon, at approximately 1:30 p.m., Philadelphia Police Lieutenant Baker executed a valid search warrant at appellant’s home. He found a television set there with serial numbers matching that which had been stolen from room 217. Lieutenant Baker arrested appellant and took him to the police station where, after being duly warned of his Miranda rights, appellant signed a statement that read in relevant part:

I went to the Treadway Inn on the Boulevard. I knew a girl named Judy and another girl named Lisa who had gotten a room there; the numbers I don’t know. It was a one bedroom. The girls changed rooms, and I went back to the first room and took the T.V. and left. (N.T. at 39)

Appellant was charged with two separate counts of theft by receiving stolen property, criminal trespass, burglary, and theft. At a consolidated proceeding on November 10, 1981, appellant pleaded guilty to the two counts of receiving stolen property, and, after waiving his right to a jury trial, was tried and found guilty of criminal trespass, burglary, and theft. He was sentenced to two to five years for burglary, to be served concurrently with his sentence in .an unrelated case, and he received suspended sentences for receiving and criminal trespass; no sentence for theft was imposed. After his post-verdict motions were filed, argued, and denied, he took this appeal.

-1-

Before a defendant’s confession may be admitted into evidence, the Commonwealth must establish by independent evidence, that is, independent of the confession, that the crime charged in fact occurred (the corpus delicti). See Commonwealth v. Cockfield, 465 Pa. 415, 350 A.2d 833 (1976); Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974); Commonwealth v. Leslie, 424 Pa. 331, 335, 227 A.2d 900 (1967); Commonwealth v. Moyer, 277 Pa.Super. 172, 419 A.2d 717 (1980). The reason for this rule was stated in Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940): “The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed.”

Crimes may be said to have three aspects: an “occurrence of the specific kind of injury or loss;” “somebody’s criminality ... as the source of the loss,” and finally, “the accused’s identity as the doer of this crime.” 7 J. Wigmore, Evidence § 2072, at 524-25 (Chadbourn rev.1978) (emphasis omitted). The corpus delicti includes only the first two of these three. Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974); Commonwealth v. Herman, 288 Pa.Super. 219, 230, 431 A.2d 1016, 1022 (1981).

Under our Crimes Code, “[a] person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.” 18 PA.C.S.A. § 3502(a); Commonwealth v. Stasiak, 305 Pa.Super. 257, 264, 451 A.2d 520, 523 (1982). Therefore, on a charge of burglary, before the defendant’s confession may be admitted into evidence, the Commonwealth must establish, first, that “a building or occupied structure, or separately secured or occupied portion thereof,” not “open to the public” was entered — Wigmore’s “specific kind of injury or loss” — and second, that the entry was “with intent to commit a crime therein” and was not “licensed or privileged” — Wigmore’s “somebody’s criminality ... as the source of the loss.” See Wigmore, supra, at 524-25. This may be done by circumstantial evidence. Commonwealth v. Gonzales, 297 Pa.Super. 66, 73, 443 A.2d 301, 304-05 (1982). Thus, evidence of forced entry, flight, or possession of tools or unauthorized entry, may be sufficient in certain circumstances to establish that a burglary has occurred. See, e.g., Commonwealth v. Wiltrout, 311 Pa.Super. 115, 457 A.2d 520 (1983) (evidence of prying open plywood panels); Commonwealth v. Tingle, 275 Pa.Super. 489, 495, 419 A.2d 6, 9 (1980) (evidence of forced entry and possession of burglary tools); Commonwealth v. Nutter, 256 Pa.Super. 111, 117, 389 A.2d 626, 628-29 (1978) (evidence of forced entry, ransacked premises and presence within burglarized premises in possession of “large sturdy screwdriver.”) While the Crimes Code definition of burglary has abandoned the common law requirement of “a breaking,” nevertheless the cases in which circumstantial evidence establishes a burglary require that there be some evidence of surreptitious entry to establish the element of entry with felonious intent. See Commonwealth v. Crowson, 267 Pa.Super. 46, 48, 405 A.2d 1295, 1296 (1979) (no burglary where “no evidence that [the defendant] entered the ... residence surreptitiously or by force” and in fact “no evidence at all regarding the manner of entry by appellant.”) See also In Re Wood, 277 Pa.Super. 606, 419 A.2d 1316 (1980) (no burglary where defendant resided in house from which car keys were stolen because no unprivileged entry); Commonwealth v. Tilman, 273 Pa.Super. 416, 417 A.2d 717 (1980) (no burglary where, inter alia, automobile dealership might have been “open to the public” when defendant entered.)

-a-

In the present case, to establish by independent evidence that a burglary occurred, the Commonwealth did not have to show that appellant entered room 217 with felonious intent, but merely that someone did so. When we look at the evidence in the light most favorable to the Commonwealth as verdict winner, however, we cannot find that it met this burden.

The evidence has been summarized above. Briefly restated, it was as follows. For twenty minutes, from 1:00 a.m. to 1:20 a.m., Lisa Haley and Judy Kennedy were authorized to enter room 217, although not for the purpose of removing a television set. Following the return of the room key, no one other than hotel staff was authorized to enter, but the Commonwealth presented no evidence that anyone did so. Some time later, Gates, the night clerk heard a “rumbling” on the upstairs landing and when, after calling police, he went to investigate, he saw appellant, but no television set. Upon seeing Gates, appellant turned and walked away from him. Some time later in the morning, Gates discovered that the television set was missing from room 217. Thus, the independent evidence the Commonwealth presented from which we might infer that appellant committed a burglary was that appellant was present on the landing at some time after the women returned the key to room 217, and that when Officer Baker searched appellant’s room the next day, he found there the television set stolen from room 217.

The evidence of appellant’s mere presence near the scene of a crime could not, without more, establish the element of entry with felonious intent. See Commonwealth v. Roscio-li, 454 Pa. 59, 309 A.2d 396 (1973) (evidence of burglary insufficient to submit to jury where it established that defendant was nearby in a telephone booth while burglary in progress and where glass from window in burglarized building found near booth); Commonwealth v. Manson, 230 Pa.Super. 527, 531, 327 A.2d 182, 184 (1974) (evidence that defendant stood near side of building from which boards had been removed from window and household goods inside building were piled near window insufficient because “Commonwealth’s evidence consisted of nothing more than [the defendant’s] presence near the point of entry to the burglarized premises.”) See also Commonwealth v. Keller, 249 Pa.Super. 384, 388, 378 A.2d 347, 349 (1977) (evidence establishing defendant’s presence near vandalized vacuum cleaner in car wash insufficient to prove theft from the coin box because “mere presence of an individual at the scene of a crime is not a sufficient circumstance upon which guilt may be predicated”); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966) (Commonwealth’s evidence that defendant was present at the scene both before and after robbery insufficient to establish that he had participated in robbery).

Aside from evidence of appellant’s presence at the inn, the Commonwealth offered no evidence of the supporting circumstances from which one could infer appellant’s entry with felonious intent. Thus, it offered no evidence of forced entry, see Commonwealth v. Wiltrout, supra; or of possession of tools, see Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979); or of flight, see Commonwealth v. Addison, 271 Pa.Super. 273, 413 A.2d 402 (1979). The only independent evidence offered against appellant was evidence that he possessed the stolen television set the next afternoon. While this did indeed establish that a theft occurred from room 217, and appellant has not substantively challenged his conviction of theft, it did not, without more, establish that the theft was accomplished incident to a burglary. See Commonwealth v. Crowson, supra (although victim’s television set and lamp were found in defendant’s apartment the day after break-in, conviction for burglary vacated because no evidence regarding manner of entry from which felonious intent might be inferred).

-b-

Despite the Commonwealth’s failure to prove the corpus delicti of the burglary with which appellant was charged, the trial court did not err in admitting appellant’s confession as evidence that a burglary had occurred and that appellant had committed it. Where a defendant’s confession relates to two separate crimes with which he is charged, and where independent evidence establishes the corpus delicti of only one of those crimes, the confession may be admissible as evidence of the commission of the other crime. This will be the case only where the relationship between the two crimes is sufficiently close to ensure that the policies underlying the corpus delicti rule are not violated. Here, we have concluded, the relationship between the theft and the burglary was sufficiently close to permit the court, upon proof of the corpus delicti of the theft, to admit appellant’s confession as evidence that appellant had committed not only the theft but also the burglary.

In Commonwealth v. Stokes, 225 Pa.Super. 411, 311 A.2d 714 (1973), we first discussed when a confession of one crime is admissible as evidence of another crime. In that case the defendant was charged with, among other crimes, playfully or wantonly pointing a firearm, 18 Pa.C.S. § 4716 (repealed), and attempting to discharge a “loaded arm[]” with intent to commit murder, 18 Pa.C.S. § 4711 (repealed). The evidence was:

When two police officers entered an apartment at the request of the tenant, they observed appellant in the bedroom pointing a rifle at them. As the officers retreated from the apartment, one officer fired a shot. Venturing back in, the officer saw appellant “raising his rifle again.” Appellant closed the bedroom door. The officers called for reinforcements, and when these arrived, appellant threw out his rifle and surrendered.
Id., 225 Pa.Superior Ct. at 413, 311 A.2d at 715.

We held, on the basis of this evidence, that the Commonwealth had established the corpus delicti of the crime of pointing a firearm. It was therefore proper to admit appellant’s confession of that crime. This confession, however, was the only evidence of the intent necessary to prove the commission of the crime of “attempting to discharge”. We nevertheless held the confession admissible to establish that crime as well. We reasoned that the two crimes were closely related in that they “arose from a single transaction” and had an element “in common.” Id., 225 Pa.Superior Ct. at 414-15, 311 A.2d at 715. Because of this relationship, the policies underlying the corpus delicti rule were not violated: the Commonwealth had proved by independent evidence that a crime had in fact occurred. See Commonwealth v. Turza, supra. We cautioned, however, that “[p]erhaps if the two crimes were distinct, in time or nature or both, the case would be different.” Id., 225 Pa.Superior Ct. at 415, 311 A.2d at 715.

We relied on Stokes in Commonwealth v. Steward, 263 Pa.Super. 191, 397 A.2d 812 (1979). There the defendant was charged with the crimes of aggravated assault and attempted robbery. The victim, a police officer, was seated on a park bench on stakeout duty. The defendant walked past him and then doubled back. When the officer made a sudden move, the defendant shot him. This evidence established the corpus delicti of aggravated assault and enabled the Commonwealth to introduce appellant’s confession into evidence. The confession provided the only evidence that when appellant had doubled back, he had done so with the intention of robbing the officer. The confession alone, therefore, proved the commission of the inchoate crime of attempted robbery. We held that under Stokes the confession was admissible for this purpose, reasoning that the two crimes “arose out of the same criminal episode” and that the injury suffered by the officer was a common element linking the two crimes. Id., 263 Pa.Superior Ct. at 198, 397 A.2d at 815. See also Commonwealth v. Tucker, 461 Pa. 191, 201, 335 A.2d 704, 709 (1975). Finally, in Commonwealth v. Rieland, 324 Pa.Super. 115, 471 A.2d 490 (1984), the defendant was charged with, among other crimes, burglary and criminal conspiracy. We concluded that evidence independent of the defendant’s confession established that a burglary had occurred. On this basis, the confession was admissible. Again relying on Stokes, we held that the confession was also admissible to prove the commission of the inchoate crime of criminal conspiracy, despite the lack of any “common element,” because “[t]he crimes of burglary and conspiracy arose from a common transaction. ...” Id., 324 Pa.Superior Ct. at 122, 471 A.2d at 493.

Here, appellant’s confession related to the two substantive crimes with which he was charged, burglary and theft. The Commonwealth offered independent evidence of the corpus delicti of theft, thereby rendering appellant’s confession admissible. While, as we have discussed above, there was no independent evidence establishing the occurrence of a burglary, nevertheless, on the facts of this case the burglary and theft were sufficiently related to render the confession admissible to prove that a burglary had occurred and that appellant had committed it.

In reaching this conclusion, we recognize that here, as was not the case in Commonwealth v. Stokes, supra, Commonwealth v. Steward, supra, or Commonwealth v. Rieland, supra, both crimes with which appellant was charged were substantive crimes; the Commonwealth did not prove the corpus delicti of a substantive crime and then use the confession to prove the commission of an inchoate crime. This distinction, however, is not significant. As in Commonwealth v. Steward, supra, the facts that established the injury — the theft of the television set — were the same for both crimes. Appellant’s “unlawful taking” of the television set was the theft, and the theft was the predicate of the burglary. Stated otherwise, the burglary was the means by which the theft was committed. Indeed, because of their close relationship, the theft and burglary merged for sentencing purposes. See infra. Finally, as in Commonwealth v. Rieland, supra, the two crimes were linked temporally, for they “arose from a common transaction, albeit not exactly a singular transaction____” Id., 324 Pa.Superior Ct. at 122, 471 A.2d at 493.

-2-

Appellant also argues that since he was charged in the same information (# 1456) with burglary, theft, and receiving stolen property, he could not be “adjudged guilty” of all three charges, and that therefore his sentence for theft and receiving must be vacated. (Brief for Appellant at 9-10) In support of this argument, appellant relies on 18 Pa.C. S.A. § 3502(d), which provides:

Multiple convictions — A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.

As to the burglary and theft charges, appellant’s argument is without merit. The “conviction]” referred to in § 3502(d) refers not to the verdict but to the judgment of sentence. Thus, while a defendant may be charged with and adjudged guilty of both burglary and theft, he may not be sentenced for both crimes. See Commonwealth v. Jefferson, 307 Pa.Super. 18, 452 A.2d 881 (1982); Commonwealth v. Hardick, 268 Pa.Super. 103, 407 A.2d 458 (1978) (HOFFMAN, J., concurring); Commonwealth v. Black, 267 Pa.Super. 598, 407 A.2d 403 (1979). Here, appellant’s sentence of two to five years was imposed for burglary alone; no sentence was imposed for theft.

As to the sentence for receiving stolen property: since the statutory definitions of the crimes of theft and receiving render it logically impossible that one person be both the thief and receiver of the same item, we have held that the same person may not be sentenced for theft and receipt of the same property. See Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624, 631 (1975) (“[bjecause these crimes are by their definition inconsistent, ... a judgment of sentence can only be imposed for one or the other____”) Appellant could not therefore be sentenced for receiving the same television set that he was convicted of stealing. However, since he has not been sentenced for stealing the television set, 18 Pa.C.S. § 3502(d) is inapplicable.

Nevertheless, I should vacate the judgment of sentence for receiving stolen property. The sentence imposed was a “suspended sentence.” However, the Sentencing Code provides for no such sentence. See 42 Pa.C.S. § 9721(a); Commonwealth v. Ferrier, 326 Pa.Super. 331, 473 A.2d 1375, 1378 (1984) (indefinitely suspended sentence not a sanctioned sentencing alternative); Commonwealth v. Maguire, 307 Pa.Super. 80, 84 n. 7, 452 A.2d 1047, 1049 n. 7 (1982) (“Sentencing Code contains no provision for a ‘suspended’ sentence.”) The sentence was therefore an illegal sentence — a fact that we may notice sua sponte. See Com monwealth v. Brown, 290 Pa.Super. 448, 453, 434 A.2d 838, 840 (1981); Commonwealth v. Schilling, 288 Pa.Super. 359, 370 n. 15, 431 A.2d 1088, 1093 n. 15 (1981); Commonwealth v. Jellots, 262 Pa.Super. 17, 19, 396 A.2d 461, 462-63 (1978); Commonwealth v. Betoni, 254 Pa.Super. 26, 28, 385 A.2d 506, 507 (1978).

The same observation may be made of the judgment of sentence imposed for criminal trespass. This, too, was a “suspended sentence”, and I should find it illegal and therefore vacate it. I should not, however, remand for resentencing on this conviction. See Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307, 1313-16 (1985).

-3-

Appellant finally argues that his trial counsel was ineffective in failing to file a motion to suppress his confession on the ground that it was made involuntarily because he was under the influence of drugs at the time he made it. A claim of ineffectiveness must be raised by new counsel at the first opportunity. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Casner, 315 Pa.Super. 12, 16, 461 A.2d 324, 326 (1983). Here, appellate counsel is not the same as trial counsel, and this appeal is her first opportunity to raise the ineffectiveness claim. The claim is therefore properly before us.

In evaluating claims of ineffective assistance of counsel, we are first to decide whether the claim is of arguable merit. See Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). If the claim is of arguable merit, we are then to decide whether counsel’s actions had any reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352 (1967). Here, appellant’s claim is without arguable merit. No evidence suggests either that he engaged in habitual or occasional drug abuse or that he was under the influence of drugs at the time of his arrest. Moreover, in the guilty plea and jury waiver colloquy, trial counsel specifically noted that on the basis of her review of all the evidence, she believed that a motion to suppress appellant’s confession “would not be legally successful” and would be construed by the court as “frivolous,” and appellant indicated that he understood her decision, and by implication he acquiesced in it. (N.T. at 15).

The judgment of sentence for burglary is affirmed.

BECK, J., files a concurring opinion.

TAMILIA, J., files a concurring opinion.

BECK, Judge,

concurring:

I join Judge Spaeth’s opinion with the exception of that portion relating to suspended sentences. Use of suspended sentences in this Commonwealth has been subject to varying interpretations. In my view it would be best to have the issue squarely before the court and briefed before determining whether to abandon its use, as Judge Spaeth would have us do, or to retain its use, as Judge Tamilia would have us do. I therefore would refrain from deciding the issue since it was not raised by the parties.

TAMILIA, Judge,

concurring:

I concur in the result, however, I take exception with that portion of Judge Spaeth’s Opinion at page 19 et seq. in its discussion regarding suspended sentences.

Judge Spaeth relies on footnote 7 in Commonwealth v. Maguire, 307 Pa.Super. 80, 452 A.2d 1047 (1982) which ultimately suggests there is no provision for suspended sentences in the Sentencing Code, 42 Pa.C.S.A. § 9721, and better practice would avoid its use. This falls short of declaring it an illegal sentence. Likewise, Judge Spaeth cites Commonwealth v. Ferrier, 326 Pa.Super. 331, 473 A.2d 1375, 1378 (1984) as not sanctioning suspended sentences as a sentencing alternative, when in fact Ferrier can fairly be interpreted to mean an indefinitely suspended sentence as not being equated with probation, thereby not being subject to subsequent revocation. Commonwealth v. Brown, 290 Pa.Super. 448, 453, 434 A.2d 838, 840 (1981) permitted the Superior Court to sua sponte question the legality of a sentence, remand to have it determine whether it intended not to sentence or to enter a “sentence of no further penalty.” Brown also considered, after Commonwealth argument, that suspended sentences may have some role to play in sentencing in Pennsylvania. In one recent case, Commonwealth v. Button, 332 Pa.Super. 239, 481 A.2d 342 (1984) (Spaeth, P.J. concurring), just such a role was illustrated and suggested by the trial judge. The suspension of sentence, on lesser charges to the life sentence imposed, was treated by the trial court as a procedural stay, pending resolution of the appeal on the major charges. It permits the trial court to retain jurisdiction to impose sentence on some counts in the event the more serious charge is dismissed on appeal, thus assuring the defendant will not emerge unpenalized. The suspended sentence, of course, would not be a final appealable order. I believe, although it is something of an additional burden, we must recognize suspended sentences, when realistically applicable in unusual situations, where lack of flexibility in the Sentencing Code requires it.

The use of the term suspended sentence, following conviction and sentence to prison (suspending confinement), is a common expression of probation and has so been construed and as such is an appealable judgment, and entitles a defendant to all due process rights, Commonwealth v. Harrison, 264 Pa.Super. 62, 398 A.2d 1057 (1979). The area which creates some confusion is suspended sentence upon conviction, without more, which most generally can be construed to mean the alternative provided in the sentencing code, 42 Pa.C.S.A. § 9721(a)(2) a determination of guilt without further penalty, it too being a final sentence. It is frequently used by the trial court to emphasize that the defendant has been found guilty, and to make certain that he realizes that for whatever reasons deemed pertinent by the court, and despite the power to enter a custodial sentence, the court imposed no further restrictions. I believe, coming from the trial judge, the statement “I find you guilty as charged and hereby suspend sentence” carries a much heavier psychological and, therefore, deterrent impact than “I find you guilty and discharge you without further penalty” — which to the public (and defendant) implies a pat on the wrist.

The legislature has recognized the utility of the suspended sentence in Offenses Against the Family, Chapter 43 of the Crimes Code.

18 Pa.C.S.A. § 4321, Willful separation or nonsupport provides:

(a) Offense defined. — A person is guilty of a misdemean- or of the third degree ...
(c) Effect of conviction and sentence on support orders.— (2) In any such case, the court may suspend sentence upon and during compliance by the defendant with any order for support as already made or as thereafter modified. If no such order shall have been made, then the court trying the defendant may make such order for the support by the defendant of his wife and children or either of them, which order shall be subject to modification by the court on cause shown, and may suspend sentence upon and during the compliance by defendant with such order upon entry of bond by defendant with surety approved by the court, conditioned on compliance with such order, (emphasis added)

I do not believe the judgments of sentence for receiving stolen property and criminal trespass ought to be vacated. It would appear that the suspended sentence on that lesser charge (receiving stolen property) was imposed out of consideration of the sentence on the major charge (burglary). We may not presume that the trial judge intended no sentence under these circumstances, should the sentence as to burglary or theft be overturned on appeal. In Commonwealth v. Goldhammer, 507 Pa. 306, 489 A.2d 1307 (1985), while the Supreme Court held it would constitute double jeopardy to remand for sentencing on a suspended sentence, when other charges on which sentences had been imposed had been vacated in prior appeals (such not being the case here, see Button, supra), it did not hold suspended sentences to be invalid per se. This illustrates the need to retain the concept of suspended sentence in those cases of merger or when a sentence would be considered excessive if imposed. Otherwise, to protect against a possible washout of all charges on appeal, it would be necessary for the trial court to sentence on all counts and charges with the attendant irrationality that would create. Admittedly, retaining the usage and practice of utilization of suspended sentence will create some difficulties, but to declare them illegal will produce more. This is a question which requires consideration by the Pennsylvania Criminal Rules Committee and the Sentencing Commission and one which should not be decided by judicial decision.

      . He also discovered, upon checking room 212, that the television set was missing from that room as well, and, in another proceeding, Ms. Haley and Ms. Kennedy were charged with and convicted of that theft. (N.T. at 35)

      . When Lieutenant Baker executed the search warrant at appellant’s home, he found a second television set with serial numbers matching those on a set reported stolen from the Treadway Inn on November 5, 1980. The second count of theft by receiving stolen property relates to this earlier incident.

      . Information No. 1455 charged appellant with criminal trespass, 18 Pa.C.S.A. § 3503; Information No. 1456 charged appellant with burglary, 18 Pa.C.S.A. § 3502; theft by unlawful taking or disposition, 18 Pa.C.S.A. § 3921; and theft by receiving stolen property, 18 Pa.C.S.A. § 3925. A third information, Information No. 1457, related to another incident not relevant here.

      . See 18 Pa.C.S. § 3921(a):

        Movable property. — A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

      . He has challenged the conviction procedurally, however. See infra.

      . Aggravated Assault, 18 Pa.C.S. § 2702, is defined, in relevant part, as:
      § 2702. Aggravated assault
      (a) Offense defined. — A person is guilty of aggravated assault if he:
      (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; ...

      . Criminal attempt, 18 Pa.C.S. § 901, is defined as:
      § 901. Criminal attempt
      (a) Definition of attempt. — A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. Robbery, 18 Pa.C.S. § 3701 is in turn defined in relevant part as:
      § 3701. Robbery
      (a) Offense defined.—
      (1) A person is guilty of robbery, if, in the course of committing a theft, he:
      (1) inflicts serious bodily injury upon another;
      (2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission.

      . See, supra.

      . Criminal Conspiracy, 18 Pa.C.S. § 903, is defined as:
      § 903. Criminal conspiracy
      (a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
      (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
      (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

      . The Commonwealth also relies on Commonwealth v. Daniels, 281 Pa.Super. 334, 422 A.2d 196 (1980). In that case, the defendant was charged with one crime, possession of heroin with intent to deliver, 35 P.S. § 780-113(a)(30). The panel held that the Commonwealth had established the corpus delicti of this crime by presenting sufficient evidence in the form of thirty-three packets of uniformly packaged heroin found in the same room as the defendant. In dictum, the panel cited Commonwealth v. Stokes, supra, to support the proposition that even had the Commonwealth’s evidence established only the lesser included offense of possession, that would have been sufficient to establish the corpus delicti of the greater crime of possession with intent to deliver. We need not, and do not, decide whether Stokes should be read so broadly.
      We also note that Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974), cert. denied, 420 U.S. 937, 95 S.Ct. 1147, 43 L.Ed.2d 414 (1975), and Commonwealth v. Leamer, 449 Pa. 76, 295 A.2d 272 (1972), are inapposite to our decision. These cases hold that on a charge of felony murder, proof of the corpus delicti does not require proof both of a homicide and of the underlying felony, but that “the corpus delicti of a felony murder is established in the same way that the corpus delicti for any homicide case is established. It is not necessary to prove, independent of the confession, that the death occurred during a felony." Commonwealth v. Weeden, supra, 457 Pa. at 444, 322 A.2d at 348, citing Commonwealth v. Learner, supra.

      . See the Court Commitment Continuation Sheet, by which the court informs prison officials of the sentence it has imposed: there, appellant’s sentence is recorded as two to five years for the offense of burglary, and the statutory reference is to § 3502 [burglary], not § 3921 [theft],

      . We refer to the first count of receiving in Information No. 1456; the second count of receiving relates to another incident. See note 2, supra.

      . See note 4 supra for the statutory definition of theft. Compare 18 Pa.C.S.A. § 3925(a): "Receiving stolen property”:
      Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

        . 42 Pa.C.S. § 9721(a) provides:
      (a) General rule. — In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise- provided by law, consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:
      (1) An order of probation.
      (2) A determination of guilt without further penalty.
      (3) Partial confinement.
      (4) Total confinement.
      (5) A fine.
      This section is couched in mandatory language and therefore provides the exclusive sentencing alternatives available to a sentencing court. See Commonwealth v. Pierce, 497 Pa. 437, 440, 441 A.2d 1218, 1219 (1982) ("The unambiguous 4 language of [§ 9721(a)] empowers a sentencing court to fashion a sentence which includes one or more of five alternative punishments, and permits these punishments to be imposed consecutively or concurrently.” Note 4 reads: "1 Pa.C.S. § 1921(b) ... states: "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”) A "suspended sentence” is not among the five sentencing alternatives provided; it is therefore illegal, and I should not sanction its continued use. See Commonwealth v. Button, 332 Pa.Super. 239, 481 A.2d 342 (1982) (SPAETH, P.J., concurring). Moreover, a trial court that imposes a “suspended sentence” may mean to impose one of two entirely different penalties. The court may mean to impose "indefinite probation,” which, because it is not a sanctioned alternative, must be vacated. See Commonwealth v. Ferrier, 326 Pa.Super. 331, 473 A.2d 1375 (1984). Or the court may mean to impose “guilt without further penalty,” which is a sanctioned penalty. We should not be required to remand to the trial court to determine what sentence was intended. See Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981). The suggestion by TAMILIA, J. that because of its inherent ambiguity a "suspended sentence” provides the trial court with greater sentencing flexibility than 42 Pa.C.S. § 9721(a) provides, and that such a sentence may well have a "heavier psychological ... impact” upon defendants, should, in my view, be addressed to the legislature, which has decided that there should be no such sentence.


author: BROSKY, Judge:

text:
    500 A.2d 154
    Kenneth Balmaine LAWRENCE, Appellant v. Ruby Rebecca Barnett LAWRENCE, Appellant
    at No. 2968PHL84,
    at No. 3020PHL84.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Oct. 25, 1985.

      Jacqueline M. Roberts, Philadelphia, for appellant (at 2968) and for appellee (at 3020).
    I.B. Sinclair, Media, for appellant (at 3020) and for appel-lee (at 2968).
    Before BROSKY, WATKINS and HOFFMAN, JJ.
   BROSKY, Judge:

These are cross-appeals from an order awarding no alimony pendente lite and awarding counsel fees. We find no error in that portion of the order which declines to set an alimony pendente lite obligation. However, we vacate and remand for reconsideration of that portion of the order which awards counsel fees. This is deemed to be necessary because the Court of Common Pleas indicates in its opinion that it considered, in making the award of counsel fees, an impermissible factor; namely, which of the two parties commenced the divorce action.

In its opinion, the court noted that the “wife earns approximately Eighteen Thousand ($18,000.00) Dollars per year while the ... husband earns Ten Thousand to Eleven Thousand ($10,000-$! 1,000) Dollars per year.” Part of the court’s opinion supporting its award of counsel fees to the wife states: “She is the Defendant in the divorce action. It was the Respondent who chose to bring the divorce action, thus causing the Petitioner to defend herself.” Therein lies the error.

The history of the allocation of counsel fees and costs in a divorce action shows changes in the law in this Commonwealth. These variations over time are certainly to be expected in this area of the law which, after all, reflects societal attitudes about the nature of marriage, the economic situation of women and the equality of the sexes. At no point in this 170 year span has the identity of the petitioner in the divorce action been a factor in determining which party is to pay costs and fees.

The first rule of law on this issue that is discoverable in our Commonwealth’s legal history is contained in a statute enacted in 1815.

The Act of 1815, in its twelfth section enacts, that the court may award costs to the party in whose behalf the decree or sentence (that is of divorce) shall pass, or that each party shall pay his or her own costs, but the act does not authorize the imposition of all the costs upon the successful party.

Shoop’s Appeal, 34 Pa. 233, 235-6 (1859). Thus, initially, costs could be imposed on the losing party in a divorce action — at the court’s discretion.

This statutory provision, which, in any eventuality, precluded the winning party from paying more than his own costs, was evidently not always followed. One ante-bellum Chancellor wrote, “On general principles independent of the statute, I am convinced that the husband, plaintiff or defendant, is obligated to pay the expenses incurred by his wife in prosecuting or defending a divorce.” Melizet v. Melizet, 1 Parson’s Sel. Eq. Cas. 77, 78 (1843). This lack of deference to the statute was, no doubt, motivated by a recognition of the basic proposition that it takes money to make access to the courts a meaningful right, and was grounded in the assumption that it was the wife who would lack those economic resources. In any event, we can observe here, 140 odd years ago, the imposition of costs irrespective of who brought the action in divorce, albeit, only on the husband.

This theme — costs allocated as to need regardless of petitioner status — is amplified in an 1856 case:

It has been the uniform practice to allow a wife destitute of a separate estate who is either suing or defending a case of divorce, such reasonable sum as will enable her to carry it on. She cannot sue in forma pauperis, for she is not a pauper if she is the wife of a man who has property. To deny her the means of paying for process and professional aid is to deny her justice. The amount is a question for the discretion of the court.

Breinig v. Breinig, 26 Pa. 161, 165 (1856). (Again, what may appear to us today to be a sexist bias, may have only been a recognition of the economic condition of wives.)

Nearly twelve decades passed before this rule of law was changed. In 1974, applying this state’s Equal Rights Amendment, it was held unconstitutional for only the wife to be able to collect counsel fees and expenses.

Section 46 has been interpreted as allowing the courts in appropriate cases to provide the wife, who is either suing or defending in divorce, a reasonable sum as will enable her to maintain herself during the pending action and provide for the necessary expenses of that action.
... As noted by the opinion in the Superior Court for reversal:
“If the purpose of the Act ..., is to insure that lack of financial ability will not prevent an action or defense by a wife in a divorce case, then this intent may only be implemented by legislation which would also preserve a husband’s similar rights to bring or defend a divorce action where he lacked the financial ability and his wife has sufficient ability to pay.”

Henderson v. Henderson, 458 Pa. 97, 100-101, 327 A.2d 60, 62 (1974). Left unchanged was that portion of the law which concerns us — that the recipient may be either the petitioner or the respondent in the divorce suit.

Just last year this Court reiterated both the new sex-blind principle (laid down in Henderson) and the two old principles of petitioner-status irrelevance (appearing in Melizet) and of need, (implicit in Melizet and enunciated in Breinig). It also went on to detail relevant factors to be considered in ascertaining need.

The court is, therefore, permitted to make such awards in its discretion, whenever it deems that the awards are necessary for either spouse to maintain or to defend a divorce action.... The court makes this determination by examining the size of the moving party’s estate, the value of counsel’s services, and the ability to pay.

Semasek v. Semasek, 331 Pa.Super. 1, 14, 479 A.2d 1047, 1054 (1984).

There is, then, a long-standing consistency in the law with regard to the irrelevance of whether or not the party seeking fees and costs had initiated the divorce proceeding. An excerpt from a respected treatise may explain why, in light of this tradition, the instant error occurred.

“The rule is founded upon elementary principles of justice. The denial of support to an injured wife during the pendency of her suit against her husband, or of the counsel fees and expenses occasioned thereby, would, by the closing of his purse, surrender to his control her right to secure redress. Even stronger is the need where the wife is the respondent; for by cutting her off from support and the means of employing counsel and meeting the expenses of the litigation, the libelant could prevent her from contesting his suit, however unfounded it might be.” 2 Freeman, Law of Marriage and Divorce in Pennsylvania, § 429, at 890 (2d Ed. 1957).

Wiegand v. Wiegand, 242 Pa.Super. 170, 176, 363 A.2d 1215, 1218 (1976).

It may indeed be that where the destitute spouse is the defendant in a divorce suit, that the appearance of need for counsel is “[e]ven stronger” and the possibility of injustice perhaps even greater. The economic inability to defend against an “unfounded” suit may be more insupportable to our sense of fair play than the economic inability to institute a founded suit. But, and this is the crux of the matter, the economic ability to institute suit is also a strong need. Both needs can be met; no choice between them is necessary. The fact that Freeman, as quoted in Wiegand, felt that the ability to defend was “[e]ven stronger” does not mean that the right to costs and fees does not exist when the needy party has instituted the suit.

To hold that a respondent can recover counsel fees simply because the petitioner instituted the action necessarily implies that a petitioner could never, no matter-how needy, recover counsel fees.

A moment’s reflection reveals the consequences of such a holding. This Commonwealth’s legal scheme would then be saying, in one part, that under certain circumstances one has a right to a divorce — that it is one’s legal right and that this Commonwealth has seen fit to protect one’s interests with this remedy — and, in another part, that one cannot compel the payment of monies that would enable that person to assert that right (although we will compel payment to enable one to defend).

Suppose, for example, that the plaintiff in a divorce action is a wife physically abused by her husband. Are we to say to her that because she is in the position of seeking to destroy her marriage, we will not enable her economically to pursue the ease, but that we would give the same person counsel fees and costs to seek to preserve the marriage? We think not.

We will not view our hypothetical plaintiffs efforts to be legally vindicated with opprobrium. She is not a “home-breaker” to be penalized by being denied her right to counsel fees and costs — or even by considering her plaintiffs status as a factor to be considered in their award.

As a plaintiff in a divorce action our hypothetical plaintiff is asserting, through the legal system, legal rights. The exercise of the legal system to obtain those rights and remedies is an act to be greeted with approbation.

We had, of course, supposed, for purposes of illustration, that the plaintiff was a physically abused wife. The plaintiff could, of course, be an abused husband, or have a wholly meritless case, or, even be the victimizer. The point is that we do not know that yet, and without the ability to obtain counsel, we will never know. We must assume that each case has the merit of our hypothetical, or, more accurately, at least has the right to be heard — irrespective of who is the plaintiff or defendant, or who ultimately prevails on the merits. Economic need of one party and economic ability of the other, must determine the allocation of the financial burden to pay counsel fees and costs.

In view of the disparity of the income of the parties (and that it is the payor who makes approximately one half as much as the payee), and in view of the court’s statements regarding the payor having instituted the divorce action, we conclude that the latter factor was significant in the trial court’s decision.

We also hold, as a matter of law, that the factor was not a legally relevant, or permissible, element to consider. Consequently, we vacate the award of counsel fees and costs and remand for reconsideration in light of the principles we have enunciated.

Affirmed as to alimony pendente lite and reversed as to counsel fees and costs, and remanded for reconsideration consistent with this opinion. Jurisdiction relinquished.

      . That appeal is brought by the petitioner, wife.

      . That appeal is brought by the payor, husband.

      . Curiously, only the wife could, under this act, commence a divorce action!

      . As late as 1957, Freeman was still assuming that it would be the wife who was the destitute spouse.