author: BECK, Judge:

text:
    597 A.2d 1220
    COMMONWEALTH of Pennsylvania v. Linda SCOTT, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1991.
    Filed Oct. 17, 1991.

      John Agner, Philadelphia, for appellant.
    Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, BECK and HUDOCK, JJ.
   BECK, Judge:

This is an appeal from judgment of sentence imposed following a non-jury verdict of guilty on one count of arson and one count of risking catastrophe. Appellant, Linda Scott, challenges the sufficiency of the evidence upon which her convictions are based. For the reasons which follow, we conclude that the evidence was insufficient to support the verdict. Therefore, we reverse.

We preface our discussion by emphasizing that we are fully cognizant of the narrow standard of review by which this court must judge sufficiency claims. The established test is whether, viewing all the evidence admitted at trial, together with all reasonable inferences which can be drawn therefrom, in the light most favorable to the Commonwealth, the jury (or the court as fact-finder) could have properly found that each element of the offense was proven beyond a reasonable doubt. See Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Vazquez, 328 Pa.Super. 86, 476 A.2d 466 (1984). While reasonable inferences must be drawn in the Commonwealth’s favor, the inferences must flow from facts and circumstances proven in the record, and must be of “such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused’s guilt beyond a reasonable doubt.” Commonwealth v. Clinton, 391 Pa. 212, 219, 137 A.2d 463, 466 (1958). The trier of fact cannot base a conviction on conjecture and speculation and a verdict which is premised on suspicion will fall even under the limited scrutiny of appellate review. Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966). Based on these principles and despite the strict standard, we conclude that the evidence at trial could not establish the elements of the charged offenses beyond a reasonable doubt.

At trial, the Commonwealth presented the following evidence. A fire marshall, Lieutenant Pelzynski, from the Philadelphia Fire Department testified that he was summoned to the row house where appellant lived with her boyfriend and two children, to investigate the causes of a fire which had occurred there just after midnight on June 22, 1989. The fire had already been extinguished when Lt. Pelzynski arrived. As a result of his examination of the patterns of smoke and heat damage to the house, Lt. Pelzynski concluded that the fire had started, and was contained, in the second floor rear bedroom of the home. The fire marshall further concluded that the fire originated in the area of the room where the bed had been located. The bed, which had been burning and was removed by firefighters before the fire marshall’s arrival, was on front lawn of the property. The mattress and box spring of the bed were damaged by fire and the fire marshall concluded that the damage was the result of an open flame rather than a smoldering fire.

Lt. Pelzynski further reported that, in his opinion, the burn patterns on the bedroom floor indicated that some type of flammable liquid had been on the floor which acted as an accelerant. He also noted that he discovered a container of charcoal lighter fluid in an open kitchen cabinet. Pictures of the bedroom indicated that there was a book of matches on a radiator cover underneath a window in the room. Finally, the fire marshall concluded that the fire was incendiary in nature and had been caused by an “open flame device of an undetermined nature” applied to a flammable or combustible liquid.

The Commonwealth’s case also contained the stipulated testimony of one of the firefighters who extinquished the blaze. His testimony as stipulated was that when he arrived he saw appellant’s boyfriend, Nathan Williams, standing in the street in front of the property. When the firefighter entered the house, he located the fire in the rear second floor bedroom and the bed was on fire. Later, the firefighter saw appellant Linda Scott arguing with her boyfriend, Nathan Williams. When asked how the fire started, Scott replied, “All I did was take some kerosene, charcoal fluid. I just sprayed a little bit, but that wasn’t enough to do anything. Then I left.” The fireman saw the same can of lighter fluid in the kitchen cabinet that had been observed by the fire marshall.

Linda Scott testified on her own behalf. She recounted her version of the events of the evening as follows. Scott and her boyfriend, Nathan Williams had been arguing about his excessive drinking and smoking crack. Williams had been acting in a “crazy,” violent manner. Scott warned Williams that she was going to leave the house and take their two year old baby with her. In response, Williams became abusive, grabbing at Scott, calling her names and threatening her. Williams at the time had a broken leg and his leg was in a cast. As a result, he was using crutches which he wielded as weapons during his argument with Scott. Flustered and frightened, Scott took the baby downstairs.

Scott realized that she left her pocketbook, her shoes and the baby’s shoes in the bedroom with Williams. Afraid to retrieve them unarmed, she went into the kitchen and grabbed some charcoal lighter fluid because it was “the first thing [she] saw.” She stated that her intentions were to defend herself. Scott testified, “If I would have threw it in his face or threw it, just throwing it on him just so he would just, you know, stop him from getting at me.” Scott further admitted that she did squirt the lighter fluid at Williams when he swung his crutches at her and that she then went downstairs. Scott testified that in order to collect herself she went outside to her rear yard, leaving the baby on the living room couch. About ten minutes later, Williams was at the rear bedroom window, shouting, “Fire.” Scott stated that she did not know how the fire started. She denied putting a match to the lighter fluid or in any way starting the fire herself.

Based on the foregoing, the trial court found appellant guilty of arson and risking catastrophe. The trial court concluded that “Ms. Scott was not believable, and ... that she did deliberately, wilfully and maliciously set the fire.”

We will address appellant’s sufficiency claim first with respect to the arson charge. In order to be guilty of arson, the Commonwealth must prove beyond a reasonable doubt that (1) there was a fire, (2) it was maliciously and willfully set, and (3) the defendant was the guilty party. Commonwealth v. Carthon, 467 Pa. 73, 354 A.2d 557 (1976); Commonwealth v. Colon, 264 Pa.Super 314, 399 A.2d 1068 (1979). Viewing the trial evidence and all legitimate inferences arising therefrom in a light most favorable to the Commonwealth, as we must, we conclude these elements cannot be inferred beyond a reasonable doubt. At best, the Commonwealth proved that the fire at appellant’s home originated when an open flame came into contact with a combustible liquid. In addition, based on appellant’s admissions at trial and to the firefighter at the scene, the combustible liquid could reasonably be inferred to be charcoal lighter fluid which appellant had squirted in the room, at Nathan Williams, prior to the fire.

The trial court summarized the inculpatory evidence against appellant in the following manner: “The trial testimony placed the defendant inside the premises at the location of the fire moments before the flames. Ms. Scott stated that after she squirted the lighter fluid on Mr. Williams she went downstairs to the backyard. Within 10 minutes, she looked up, saw smoke coming out of the window, the lights had gone out, and Mr. Williams was yelling, ‘Fire’.” This evidence, coupled with the trial court’s disbelief of appellant’s denial, apparently convinced the court that guilt was established beyond a reasonable doubt.

We recognize that the Commonwealth may establish the entirety of its case through circumstantial evidence. Indeed, in arson cases this court has recognized that circumstantial evidence frequently is the only evidence attainable. Commonwealth v. Colon, 264 Pa.Super. at 324-25, 399 A.2d at 1073. On the other hand, we have cautioned that particular care must be taken in cases where only circumstantial evidence is offered, lest we impermissibly rest a finding of guilt on conjecture. In addition, while “[tjhere is no requirement that the Commonwealth exclude all possibility that a third party may have committed the crime”, we must also guard against “reasoning from circumstances not sufficiently cogent in themselves or as connected, and particularly not sufficiently exclusive of every innocent hypothesis.”

In our view, the trial court’s verdict cannot stand on this record. First, in large part the conviction rests on the mistaken belief that appellant’s version of the story and the trial court’s conclusion that it was “self-serving” can substitute for proof in the Commonwealth’s case. This court repeatedly has emphasized that the Commonwealth has the never shifting burden to establish each element of the offenses charged beyond a reasonable doubt and that the fact that the court rejects a defendant’s explanation is “not a substitute for proof.” Commonwealth v. Peduzzi, 338 Pa.Super. 551, 557, 488 A.2d 29, 33 (1985).

An analogous case is illustrative. In Commonwealth v. Trafford, 312 Pa.Super. 578, 459 A.2d 373 (1983), the defendant was a newly employed maintenance man at an apartment complex at which a fire was reported. The telephone operator who received news of the fire paged the defendant on his beeper and he called back almost immediately. The telephone operator then called the police and the police and firemen were sent to the scene of the fire. When the first fireman arrived, he saw the defendant walking out of the apartment’s clubhouse, reporting that he had just extinguished the fire. Defendant had given contradictory stories at the scene and at trial as to his whereabouts at the time he received the call on his beeper. From the contradictory statements and the extremely abbreviated time span, the trial court concluded that defendant in Trafford must have responded to the beeper page from a location very close to the fire and that he gave false statements as to his whereabouts at the time of the fire. From these conclusions, the trial court found sufficient evidence that defendant had set the fire. This court reversed, stating:

Appellant’s presence at the scene of the fire is certainly insufficient to establish guilt. Nor is the added factor of his apparently false statements as to his whereabouts sufficient to establish a prima facie case. ‘A man charged with a crime is not required to explain anything. It is the Commonwealth’s obligation to prove guilt____ [I]f the defendant does speak and speaks unconvincingly or self-contradictorily, but the Commonwealth has not made out a prima facie case, a resulting conviction will not be allowed to stand.’ The Commonwealth can not use apparent inconsistencies in the appellant’s version of the events surrounding the fire to make up for deficiencies in its own case. Of course, appellant’s deceptions would lead one to suspect that perhaps mischief was afoot, but his willingness to mislead provides no basis in logic for concluding that he engaged in the deliberate felonious act of arson. While the evidence in the instant case may have cast a degree of suspicion on appellant, it is clear that ‘suspicion is never accepted in a court of justice as a substitute for proof.’

Commonwealth v. Trafford, 312 Pa.Super. at 582-84, 459 A.2d at 375 (citations omitted).

Likewise, in the instant case, it is impermissible to substitute the trial court’s disbelief of appellant’s testimony for the presentation of evidence beyond a reasonable doubt that appellant set the fire.

Moreover, considering the entirety of the uncontradicted evidence in the case, parts of which were even relied upon by the trial court in its opinion, it is clear to us that the reasonable inferences to be drawn from this record are equally consistent with the possibility that the fire was set by Williams instead of appellant. It is settled that, although the Commonwealth needn’t entirely disprove every conceivable hypothesis consistent with innocence, the Commonwealth’s proof must sufficiently “cast doubt on the equally likely possibility” that a third party committed the offense. The law is that:

When two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty.

Commonwealth v. Hubbard, 472 Pa. 259, 270-71, 372 A.2d 687, 692 (1977), quoting Commonwealth v. Woong Knee New, 354 Pa. 188, 221, 47 A.2d 450, 468 (1946).

Here, the trial court accepted that Williams was alone in the bedroom for about ten minutes after Scott had squirted the charcoal lighter fluid. Leaving the baby in the house, Scott left the house and went out of doors. Williams had been drinking and also was a crack smoker. There were matches on the bedroom radiator under a window that had no more connection to Scott than to Williams. Williams was downstairs and outside the building when the police and firefighters arrived to extinguish the blaze, apparently unharmed and obviously quite capable of mobility. These circumstances legitimately and reasonably support the inference that Williams, not Scott, either inadvertently or deliberately started the fire in the bedroom. In addition it is equally reasonable to infer that if appellant had put an open flame to the lighter fluid and then left the room, the flames would have immediately engulfed and even burned Williams, and that ten minutes could not have elapsed before he came to the window to shout “Fire.” The Commonwealth offered no proof sufficient to cast doubt on these inferences. While the record may have permitted the suspicion that Scott had set the fire, we find no evidence to support that conclusion beyond a reasonable doubt. Short of that, however, a criminal conviction cannot be upheld.

Finally, we address appellant’s claim regarding her conviction for risking catastrophe. The Commonwealth contends that appellant has waived the sufficiency argument on risking catastrophe. Appellant’s original sufficiency argument was based on the contention that the Commonwealth failed to prove that she started the fire, in effect challenging both convictions on this ground. The Commonwealth argues that the mere fact that appellant squirted the lighter fluid was sufficient for a conviction of risking catastrophe and that since appellant did not specifically challenge the conviction on that ground in post-verdict motions, her claim is waived. The Commonwealth further argues that even if not waived, the sufficiency argument is meritless because appellant’s admitted action of squirting the lighter fluid at Williams is sufficient to support the conviction. We reject these arguments.

The record at trial indisputably indicates that the Commonwealth’s proof on both charges rested on supposed proof that Scott was “the one who started the fire that particular night.... [and] therefore [was] guilty of the charge of arson and risking a catastrophe.” Commonwealth’s closing argument, Trial Transcript at 55. Therefore, in post-verdict motions the sufficiency argument was framed in terms of a lack of proof that the “defendant started the fire.” We consider this challenge adequate to raise the sufficiency argument on both counts, in light of the evidence and arguments at trial. The Commonwealth never intimated, argued or proved that the act of squirting some charcoal lighter fluid alone, without proof that she thereafter intended to and did set the liquid on fire, was sufficient to convict appellant of risking a catastrophe. Whatever may be the merits of this contention by the Commonwealth in another context, this record contained no proof from which the fact-finder could conclude that appellant, by squirting the lighter fluid and leaving the room, consciously created a risk of widespread destruction that “expose[d] society to an extraordinary disaster.” Commonwealth v. Hughes, 468 Pa. 502, 512, 364 A.2d 306, 311 (1976).

We hold that the Commonwealth’s proof at trial was insufficient to support appellant’s convictions for arson and risking a catastrophe.

Judgment of sentence reversed and appellant ordered discharged.

      . Although all parties appear to assume that the flammable liquid involved in the conflagration was charcoal lighter fluid, there was also uncontradicted evidence that Williams was drinking corn liquor in the bedroom just before the fire started.

      . Commonwealth v. Akers, 392 Pa.Super. 170, 180-81, 572 A.2d 746, 751 (1990).

      . Commonwealth v. Trafford, 312 Pa.Super. 578, 579-80, 459 A.2d 373, 374 (1983), quoting Rodriguez v. United States, 232 F.2d 819, 812 (5th Cir.1956).


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    597 A.2d 1225
    Geraldine T. SZYMANSKI-GALLAGHER v. CHESTNUT REALTY COMPANY, a General Partnership, Philadelphia Police, Fire & Park Police, Federal Credit Union v. M. COHEN & SONS, INC. t/a the Iron Shop. Appeal of CHESTNUT REALTY CO., a General Partnership.
    Superior Court of Pennsylvania.
    Submitted June 4, 1991.
    Filed Oct. 18, 1991.

      Curtis P. Cheyney, III, Ardmore, for appellant.
    Lawrence G. Metzger, Philadelphia, for Szymanski-Gallagher, appellee.
    Joseph M. Toddy, Philadelphia, for Philadelphia Police, Fire & Park Police Federal Credit Union, appellee.
    Elizabeth David, Philadelphia, for M. Cohen & Sons, appellee.
    Before McEWEN, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order granting summary judgment in favor of appellee credit union. Appellant had sought indemnification against appellee pursuant to a written clause in lease agreements between appellant and appellee credit union after a credit union employee was injured on the premises and instituted a personal injury action against appellant. Appellee asserted the defense of the Workmen’s Compensation Act immunity provisions. Appellant asserts generally that the court erred in finding the indemnification clause at issue insufficient to impose liability upon appellee credit union. We vacate the order appealed from and remand for a continuation of proceedings.

The underlying plaintiff, Geraldine Szymanski-Gallagher, was injured on the premises of her employer Philadelphia Police, Fire & Park Police Federal Credit Union while working there, and in the course of her employment there. Specifically, it is alleged that she tripped and fell on a stairway connecting floors leased by the credit union from appellant realty company. Plaintiff filed a personal injury action against appellant and others. Appellant filed a complaint joining the credit union as an additional defendant claiming that it had contracted to indemnify appellant against financial loss resulting from usage of the stairway in question. Appellee credit union sought summary judgment arguing that the indemnification provision was insufficient at law to negate the immunity provision of the Workmen’s Compensation Act. The trial court granted summary judgment stating that the clause in question did not expressly waive the statutory protection afforded by 77 P.S. § 481(b). This appeal followed.

An employer’s immunity from suit by an employee for an injury occurring at work is well documented and will not be rehashed here. This statutory immunity extends not only to actions by employees, but also to actions for contribution or indemnification by another party who is being sued by the injured employee for the injury sustained at work. Thus, in this situation, although it is not an employee seeking damages from the employer, because the claim for damages emanates from a work related injury, the employer enjoys an immunity from suit by a third party or joint tortfeasor as well.

In our view, this immunity is not as absolute. The precise statutory language states:

In the event injury or death to an employee is caused by a third party, then such employe, ... may bring [an] action at law against such third party, but the employer, ... shall not be liable to a third party for damages, contribution or indemnity ... unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

77 P.S. § 481(b). Thus, under the language of the statute, where an employer previously agrees in writing to indemnify the third party for damages, the employer can be held so liable. The main controversy in this appeal relates to the content of the written provision used as a basis for holding the employer liable. More specifically, the question we must answer is whether or not this written provision must expressly waive the workmen’s compensation immunity or whether there must simply be an express agreement to be liable for indemnification/contribution damages? For the reasons that follow, we hold that the requirements of § 481 are met if there is an express undertaking to indemnify or be liable for damages and that it is not necessary to expressly waive the workmen’s compensation immunity.

A major reason we are willing to hold as just stated is that to do so simply enforces the literal wording of the statute itself. That is, the language of the statute indicates that for an employer to be liable to a third party for damages, contribution or indemnification, such liability must be expressly provided for in a written agreement between the third party and the employer. It would seem that all that is necessary by the language of the statute is a written agreement where the employer agrees to be liable to the third party. Although, as a practical matter such an agreement could be viewed as having the effect of “waiving” the employer’s immunity provided under the workmen’s compensation act, the language of the act does not state that the employer must expressly waive the statutory immunity.

To impose such a requirement through judicial interpretation would have the effect of re-writing the Act and significantly changing the requirements from those stated in the language of the Act. Appellee has offered no cases in support of its position squarely holding that such language is necessary. Virtually all of the cases discussing this particular aspect of the Workmen’s Compensation Act deal with the delineation of what constitutes an “express” agreement to indemnify. There appears to be only one recent case, which is discussed infra, that suggests something more than an express agreement to indemnify is necessary. By far, the clear focus of the cases seem concerned only that the employer actually have agreed to indemnify the third party. Thus, in cases where the proffered written agreement constituted less than an express agreement to actually indemnify the third party, the writings were found lacking. Consider the following examples.

In Gerard v. Penn Valley Constructors, Inc., 343 Pa.Super. 425, 495 A.2d 210 (1985), this court found a purported indemnification clause insufficient to satisfy the Act. The provision stated:

Subcontractor will submit to Contractor before the commencement of work insurance certificates showing that Subcontractor is covered by workmen’s compensation insurance as required by law, and also public liability insurance for property damages, personal injury or death.

Quite notably there is no language at all that indicates that the subcontractor agreed to pay damages to, or indemnify the contractor should the contractor be held liable for an injury resulting from performance of the work. It is not surprising therefore that the court found this clause insufficient under the Act to impose liability upon the employer. Such a clause could hardly be considered an express agreement to indemnify.

Similarly, in Potts v. Dow Chemical Co., 272 Pa.Super. 323, 415 A.2d 1220 (1980), the subject clauses purported to limit the liability of Dow to “that directly resulting from the sole negligence of [Dow] in the performance of this contract.” Nevertheless, there was no language that indicated U.S. Steel, the purported indemnitor, would pay damages to Dow for any liability imposed upon Dow, and Dow’s efforts to seek indemnification were summarily thwarted. In Babjack v. Mt. Lebanon Parking Authority, 102 Pa.Cmwlth. 499, 518 A.2d 1311 (1986), a clause in the lease contract stating that the lessor “shall not be liable for personal injury to the Lessee, Lessee’s employees or guests, which might arise from the condition of the Premises....” was also found lacking under the statute because, although implying an intent to limit liability, thus shifting liability to lessee, there was no specific language that lessee would pay for any liability imposed upon the lessor.

A review of these cases reveals that they do not contain an express agreement to indemnify. At best, there is an implied promise to indemnify. However, the Act, as well as caselaw, requires more than a promise by implication, it requires an express undertaking. As previously stated, there has been little suggesting that more than an express implication to indemnify, i.e., an express waiver of the § 481 immunity, is necessary to satisfy the § 481 requirements.

In Potts v. Dow Chemical, supra, for example, the court discussed the applicable section of the Act stating “[w]e agree that Section 303(b) of the Workmen’s Compensation Act specifically creates an exception in favor of liability of an employer when it is based on an express agreement of indemnity. In the instant case, however, Dow’s pleadings demonstrate clearly that there was no contract of indemnity.... An agreement to indemnify is an obligation resting upon one person to make good a loss which another has incurred or may incur by acting at the request of the former, or for the former’s benefit.” 415 A.2d at 1221. Notably, nowhere in this discussion does the court suggest that language “waiving” the statutory immunity is necessary to impose liability based upon an agreement to indemnify. In Babjack, supra, the Commonwealth Court, in finding no basis for liability notes that the clause in question is “not an express undertaking by Appellee to indemnify Appellant for injuries suffered by Appellee’s employees.” 518 A.2d at 1313. Again there is no hint that more than an express undertaking to indemnify is necessary to impose liability. The lower court, however, appears to have placed significant emphasis on almost gratuitous language in Remas v. Duquesne Light Company, 371 Pa.Super. 183, 537 A.2d 881 (1988), suggesting that the clause must expressly “waive” the statutory immunity provided by the Act. We do not think this approach is necessary or proper.

In Remas, the court considered a clause in a contract between Duquesne Light and Gregg Security which called for Gregg to indemnify and hold harmless Duquesne Light for liability on a cause of action “which may be made or had against the Company [Duquesne Light] by reason of any act committed by the Contractor, its agents, servants or employees other than an act performed by the Contractor, its agents, servants or employees at the specific instruction of the Company.” The trial court found this language insufficient to impose liability on an indemnification theory. We affirmed stating “[t]he lower court determined that the indemnity clause in the Duquesne-Gregg agreement did not constitute an agreement by Gregg to indemnify and hold Duquesne harmless in the event Duquesne’s negligence caused injury to a Gregg employee, within the contemplation of the Workmen’s Compensation Act. We agree.

The Act requires an express provision for the statutory employer to assume an indemnity obligation in such circumstances.” 537 A.2d at 882-883. (Emphasis in original). A review of the clause in question establishes that the purported indemnity clause had a limited scope. It related to liability imposed upon Duquesne Light for acts committed by Gregg. However, the allegations asserting liability on the part of Duquesne Light did not allege acts committed by Gregg. Rather, the allegations were that the injury was caused by failure of Duquesne Light to properly maintain and to clear ice and snow from the area where the plaintiff had fallen. As such, it is clear that there was no obligation under the clause to indemnify for those damages and it is equally clear that the lower court had properly granted preliminary objections in the nature of a demurrer.

If that was the extent of the discussion in Remas there would seem to be little room for confusion. However, the panel added that “Gregg did not expressly agree, in the indemnity clause quoted above, to waive its statutory protection, and to assume unlimited liability for damages arising from harm suffered by its own employees as a result of the neglect of Duquesne.” Id. 537 A.2d at 883. This is an entirely correct statement. Clearly, Gregg did not agree to such an undertaking. Nor did Gregg expressly waive the statutory immunity of the Act. However, nowhere in the opinion is it established that an express waiver is necessary to implicate indemnification liability. Although a correct statement, the language offered by the court, perhaps unfortunately, created an impression that an express waiver is necessary under the statute. However, as indicated above, none of the cases preceding Remas suggested that an express waiver is necessary to impose such liability, nor does the language of the statute itself. Nor is such a rule required to support the result of Remas. Consequently, we cannot conclude that Remas holds as such. Rather, we conclude that all the statute requires is an express agreement to indemnify that fairly implicates liability under the facts alleged.

Turning to the clause in question and the facts underlying the present appeal, the clause in question was part of a lease agreement between appellant and the credit union. It states:

11(b). Lessee also agrees to be responsible for and to relieve and hereby relieves lessor from all liability by reason of any damage or injury to any person or thing which may arise from or be due to the use, misuse, or abuse of all or any of the elevators, hatches, openings, stairways, hallways of any kind whatsoever, which may exist or hereafter be erected or constructed on said premises, ... whether such damage, injury, use, misuse, or abuse be caused by or result from the negligence of lessor, his servants or agents or any other person or persons whatever.

A fair reading of the subject clause suggests that it meets all statutory and caselaw requirements for imposing liability upon appellee credit union. The agreement of the credit union to be liable to appellant for liability imposed upon appellant relating to the use of the stairway is expressly provided for. The agreement of lessee to be “responsible for and to relieve lessor from” liability for injury to any person is express language of indemnity. The obligation to indemnify lessor is' not merely implied from the language used, it is directly provided for. The language “any person” encompasses an employee of the credit union. Indeed, inasmuch as the stairway in question connected two floors being leased by the credit union, it appears more than foreseeable that an injury on the stairway might involve an employee. Lastly, the clause in question indicates lessee’s obligation to relieve lessor from liability even if the injury should result from the negligence of the lessor. Thus, the clause clearly covers the present situation, and unlike the clause in Remas, even suggests that the lessee could be held liable over for damages which were occasioned by the lessor’s own negligence.

Since the clause in question must be deemed to meet the requirements of the Act, we vacate the order appealed from and remand for proceedings consistent with this opinion.

Order vacated, remanded for further proceedings. Jurisdiction relinquished.

      . By this statement we do not wish to abridge prior caselaw regarding the required specificity of expression regarding indemnification for the indemnitee’s own negligence. There is an entire body of law indicating that for the indemnification to encompass the indemnitee’s own negligence the agreement must expressly provide for such indemnification. See, Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961), and subsequent cases. In fact, often the discussion as to whether a clause expressly provides for indemnification has focused on this very aspect. However, the clause in this case clearly covers liability resulting from appellant’s own negligence. See text of the subject clause, infra.

      . Black’s Law Dictionary, Fifth Edition, defines indemnity thusly:
      "A collateral contract or assurance, by which one person engages to secure another against an anticipated loss or to prevent him from being damnified by the legal consequences of an act or forbearance on the part of one of the parties or of some third person. Term pertains to liability for loss shifted from one person held legally responsible to another person.”
      Similarly, indemnify is defined as follows: ”[t]o restore the victim of a loss, in whole or in part, by payment, repair, or replacement. To save harmless; to secure against loss or damage; ...”


author: POPOVICH, Judge:

text:
    597 A.2d 1230
    TULLY DRILLING COMPANY, INC., Appellee, v. Hubert B. SHENKIN and Lucille H. Shenkin, Appellants.
    Superior Court of Pennsylvania.
    Argued July 16, 1991.
    Filed Oct. 21, 1991.
    Mark R. Zimmer, Honesdale, for appellants.
    Peter G. Loftus, Scranton, for appellee.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   POPOVICH, Judge:

We are asked to review the December 7, 1990, order (reduced to judgment thereafter) denying a Motion in Arrest of Judgment, Motion for Judgment Notwithstanding the Verdict, and Motion for a New Trial by the defendants/appellants, Hubert S. Shenkin and Lucille B. Shenkin, his wife. We reverse in a case of first impression.

A review of the record in a light most favorable to the verdict-winner, plaintiff/Tully Drilling Co., indicates that a mechanic’s lien was filed on December 9, 1983, by the plaintiff for installation of a well on property owned by the defendants and situated at Lake Como, Pennsylvania.

On July 11, 1988, the defendants filed a motion to strike the mechanic’s lien on the ground that the plaintiff “ha[d] not commenced any action to obtain judgment upon its Claim for Lien” as required by 49 P.S. § 1701(b). A rule to show cause why the case should not be dismissed for want of prosecution was issued on July 12, 1988, and made returnable for answer and hearing on August 16, 1988.

In reply, the plaintiff filed an answer in which it was alleged that an action had been commenced to obtain judgment upon its claim (in the form of a complaint) and the procedure to be followed for compelling judgment upon default was set forth in Pa.R.Civ.P. 1659 and required the owner (“defendants”) to praecipe the prothonotary to enter a rule upon the claimant (“plaintiff”) to file a complaint within twenty days after service of the rule or be forever barred from doing so.

The plaintiffs complaint asserted that an oral agreement had been entered into on or about August 11, 1983, for casing a well and making it operational. The work was completed on August 16, 1983, for a total cost of $6,930.06, the payment of which had been attempted with the issuance of a check in the amount of $3,000.00 by the defendants with the notation that it was for payment in full.

By order dated August 16, 1988, the defendants’ request for relief was denied for failure to “follow[ ] the procedure for compelling judgment upon default as specified in Pa.R.C.P. 1659”. A motion for reconsideration was denied. After this, the defendants filed an answer and new matter asserting the bar of Section 1701(b)’s two-year period for the untimeliness of the complaint. This was followed by an answer from the plaintiff denying the applicability of the statute of limitations in new matter. A motion for summary judgment was also submitted by the defendants, but it was denied because the court held that genuine issues of material fact were present.

Following a non-jury trial, in which the court held in favor of the plaintiff, post-trial motions were submitted and denied. The order was reduced to judgment and this appeal followed.

The first issue framed for our consideration is:

Whether a claimant’s failure to file a complaint on a mechanic’s lien claim within the time required in 49 P.S. § 1701(b) requires the striking of the claim upon application of the owner?

It is the position of the defendants that the time-frame within which a mechanic’s lien claim is to be “commenced” is controlled by the two-year period in 49 P.S. § 1701(b). Because the plaintiff “did not commence an action on [its] mechanic’s lien claim within the two-year period”, the defendants argued they were entitled to have their motion to strike granted.

It has been consistently held:

A mechanic’s lien is strictly statutory, to obtain in rem rights in the nature of collateral security for the payment of a debt owed for work done or materials supplied. It is essentially intended as a means for collection of the debt and is not designed to afford a sole means for determining whether the debt is a valid obligation or whether damages may otherwise lie for breach of contract: Halowich v. Amminiti, 190 Pa.Superior.Ct. 314, 154 A.2d 406 (1959). The Mechanics’ Lien Law of August 24, 1963, P.L. 1175, 49 P.S. § 1101 et seq., must be strictly complied with in establishing and enforcing the right to a lien: McCarthy v. Reese, 419 Pa. 489, 215 A.2d 257 (1965). We believe, in view of the express, limited purpose of the act, that any question of interpretation of the applicable rules of procedure should likewise be resolved in favor of a strict, narrow construction, so as to insure against mechanic’s lien proceedings becoming unduly complicated and broadened beyond the degree intended by the legislature.
Accordingly, we view defendnts’ [sic] complaint against additional defendant as an attempt to interpose a new and different cause of action, contrary to the direction of Rule 1657. In view of this determination there is no need for us to speak to the alternative argument raised by additional defendant’s preliminary objections.

Raymond S. Hess, Inc. v. Kutner, 13 Pa.D. & C.3d 556, 559 (1978), aff’d 268 Pa.Super. 610, 413 A.2d 1125 (1979). Accord Brann & Stuart Co. v. Consolidated Sun Ray, Inc., 433 Pa. 574, 253 A.2d 105, 106 (1969).

From our review of the record and sparse case law, we conclude that no “action was commenced”, as that phrase has been defined by the Rules of Civil Procedure, with the filing of the mechanic’s lien on December 9, 1983, by the plaintiff.

Pursuant to Section 1701(a) and (b) of the Mechanics’ Lien Law of 1963, the Rules of Civil Procedure govern the practice and procedure to obtain a judgment once a lien has been filed, and, under Pa.R.Civ.P. 1653, actions upon mechanics’ liens “shall be commenced by filing ... a complaint” with the prothonotary. This did not occur here until September 9,1988, well beyond the two-year statute of limitations referred to in Section 1701(b).

As has been oft-stated by this Court and the Supreme Court:

Every practitioner has recognized that strict compliance with Mechanics’ Lien Law is necessary in order to effect a valid claim.
* * * * * *
The right to a mechanic’s lien is purely a creature of statute and it is only available if the conditions of the legislature are strictly followed. Where the words of a statute are clear, the courts should not be requested to go beyond the requirements of the act to determine who was and who was not dilatory and responsible for the delay.

Brann & Stuart Co., supra, 433 Pa. at 576-78, 253 A.2d at 106; Trustees of C.I. Mortgage Group v. Stagg of Huntington, Inc., 247 Pa.Super. 336, 372 A.2d 854 (1977).

Under existing law, the proceedings in mechanics’ lien cases fall into two distinct, consecutive stages: (1) filing and perfecting the claim of a mechanics’ lien; and (2) instituting and prosecuting an action sur claim of a mechanics’ lien. The papers relating to each stage are entered in separate dockets, kept in separate files, and bear separate designations of court term and number. Procedure for the first state is governed exclusively by statute: Sections 501 through 510 of the Mechanics’ Lien Law of 1963, 49 P.S. Sections 1501 through 1510; that for the second stage is regulated — pursuant to Sections 701(a) and 706(b) of the Law, 49 P.S. Sections 1701(a) and 1706(b) — by the Pennsylvania Rules of Civil Procedure, No. 1651 through No. 1660.

Schwartz & Baker v. Racing, Inc., 25 Monroe Leg.Rptr. 125, 126 (1967). Accord Prettyman v. Shelton, 17 Pa.D. & C.3d 243, 244 (Chester Cty.1980); Renan, Inc. v. PNL, Inc., 67 Pa.D. & C.2d 430, 431 (Beaver Cty.1974); see also McCarty v. Reese, 419 Pa. 489, 215 A.2d 257, 258 & n. 1 (1965).

With the predecessor to the present Act of 1963, once a lien was filed a writ of scire facias had to be filed within two years after the lien was entered and indexed in the mechanics’ lien docket.

Under the mechanics’ lien law of June 4, 1901, P.L. 431, § 10, the issuance of such a writ within such period is mandatory in order to assure the continuance of the lien, “unless the owner, by writing filed before the expiration of that time, waive the necessity for so doing for a further period not exceeding three years____”
It would seem to be the settled law in Pennsylvania that where a claimant fails to issue a scire facias within two years of filing his lien, and there has been no waiver by the owner, the lien will be stricken off: Klein v. Shepherd et al., 25 Luz.Leg.Reg.Rep. 166. (1926); Walck v. Schlier et al., 18 Luz.Leg.Reg.Rep. 406 (1916); Hamaker v. Keath Planing Mill Co., 41 Lanc.L.R. 244 (1926).

Cassel v. Stump et al., 62 Montg.Co.L.R. 12, 13 (1945).

Consistent with the Mechanics’ Lien Law of 1901, the only occasion on which the waiver of the two-year statute of limitations for issuing a writ of scire facias would be condoned was upon the written consent of the owner (“debt- or”), and then the period could not exceed three years. See, e.g., Yanks v. Stadt et al., 25 Luz.Leg.Reg.Rep. 374 (1929); Iandorio v. Martello, 24 Luz.Leg.Reg.Rep. 210 (1926).

With the enactment of the Mechanics’ Lien Law of 1963, the reference to the three-year period was omitted as unnecessary in view of subsection (d) of Section 1701: It provides that the judgment must be recovered within five years from the date of filing, excluding therefrom time expended to dispose of motions, petitions or appeals taken from any order in the cause, totalling the two-and three-year period allowed by the Act of 1901. See Comment — Joint State Government Commission 1964 Report following 49 P.S. § 1701 (1965); see also 49 P.S. § 1701(d).

However, “[t]he two-year period for commencing action to obtain judgment on the claim remains unchanged.” Id. Thus, with the plaintiff’s failure to file a complaint until September 9, 1988, (three months short of five years from the date of filing the mechanic’s lien claim), it failed to “commence an action” as required upon a joint reading of Section 1701(a), (b) and Rule 1653.

To permit an owner to praecipe a claimant to file a complaint (via Rule 1659 after more than two years have elapsed between the lien claim filing and the complaint) would render nugatory 49 P.S. § 1701(b)’s two-year statute of limitations for commencing an action following the filing of a claim. Furthermore, such an interpretation of the statute fails to give effect to all its provisions, a clear violation of the Statutory Construction Act, 1 Pa.C.S.A. § 1921. We will not attribute to the Legislature such an absurd result. Id. at § 1922.

If the Legislature had intended to dispense with the requirement that a complaint must (“shall”) be filed within two years of the filing of a lien, the lawmakers could have excised it from the Mechanics’ Lien Law of 1963, as occurred with the deletion of the proviso allowing for an extension of up to three years for the issuance of a writ of scire facias with the consent of the owner. If the Legislature had intended to do so, it would have been very simple for it to have said that all such actions shall be brought within five years of the filing of the lien pursuant to Section 1701(d). Compare Donahue v. Knaus, 169 Pa.Super. 372, 375, 82 A.2d 532 (1951).

The Legislature having chosen not to eviscerate the two-year statute of limitations in subsection (b) of Section 1701, we may not do so by judicial fiat by giving Rule 1659 such a reading that it could be invoked beyond the two-year time frame set forth under the Mechanics’ Lien Law of 1963 and eliminate a statutory sine qua non. This is beyond the authority of this Court. We believe that our reading of the applicable Rules and statute ameliorates the two. Although some duplication of function arises, the Rules and statute interact and flourish without either one being neutralized. See generally Schwartz & Baker, supra, 25 Monroe Leg. Rptr. at 126.

For the reasons herein stated, we find that the court below erred in failing to grant the defendants’ motion to strike the mechanic’s lien of the plaintiff. Accordingly, we will reverse the order of December 7, 1990, and the judgment entered thereafter, with the direction that judgment be entered in favor of the defendants.

Judgment reversed and case remanded for proceedings consistent with the disposition herein made. Jurisdiction is relinquished.

      . We take exception to the trial court’s determination that the plaintiff filed its mechanic’s lien on September 21, 1983. The record indicates a time-stamp on the face of the lien reading December 9, 1983, as the date the document was received by the prothonotary. See Appellee’s Brief at 5.

      . Section 1701(b) reads: "Time for Commencing Action. An action to obtain judgment upon a claim should be commenced within two (2) years from the date of filing unless extended in writing by the owner.” Act of August 24, 1963, P.L. 1175, No. 497, art. VII, 49 P.S. § 1701(b) (1965).

      . Rule 1659 provides: "If a claimant has filed a claim and does not file a complaint, the prothonotary, upon praecipe of an owner, shall enter a rule as of course upon the claimant to file a complaint within twenty (20) days after service of the rule, or be forever barred from so doing. If the claimant fails to do so, the prothonotary, upon praecipe of the owner and proof of service, shall enter judgment for the defendant.”

      . Section 1701(a) and (b) read:
      (a) Practice and Procedure. The practice and procedure to obtain judgment upon a claim filed shall be governed by the Rules of Civil Procedure promulgated by the Supreme Court.
      (b) Time for Commencing Action. An action to obtain judgment upon a claim filed shall be commenced within two (2) years from the date of filing unless the time be extended in writing by the owner.

      . Rule 1653 provides in relevant part: “An action shall be commenced by filing with the prothonotary ... a complaint____”

      . Section 1701(d) now reads:
      (d) Limitation on Time of Obtaining Judgment. A verdict must be recovered or judgment entered within five (5) years from the date of filing of the claim. Final judgment must be entered on a verdict within five (5) years. If a claim is not prosecuted to verdict or judgment, as provided above, the claims shall be wholly lost; Provided, however, That in either case, if a complaint has been or shall be filed in the cause and if the cause has been or shall be at issue, all time theretofore or thereafter consumed in the presentation and disposition of all motions and petitions of defendants, substituted defendants and intervenors in the cause, and in any appeal or appeals from any order in the cause, from the date of perfection of such appeal to the date of return of the certiorari from the appellate court to the court of common pleas, shall be excluded in the computation of the five (5) year period herein provided.
      As amended December 28, 1972, P.L. 1640, No. 343, § 1, 49 P.S. § 1701(d) (Supp.1991-92).

      . See note 3, supra.

      . Because of our ruling, we need not address the other issues proffered.


author: TAMILIA, Judge: BROSKY, Judge,

text:
    597 A.2d 1234
    Robert DONNELLY, Appellant, v. Denise M. LINDENMUTH.
    Superior Court of Pennsylvania.
    Argued July 31, 1991.
    Filed Oct. 21, 1991.

      Yale F. Edeiken, Allentown, for appellant.
    J. Karen Arnold, Bellefonte, for appellee.
    Before MONTEMURO, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

Appellant, Robert Donnelly, takes this appeal from the Order of October 10, 1990 denying his petition for contempt and vacating the April 20, 1990 Order directing appellant, appellee, Denise M. Lindenmuth, and appellee’s minor child, Tyler, to submit to human leukocyte antigen (HLA) blood tests. Apart from the birth of Tyler, this case has its nascence in a complaint in custody filed by appellant on March 27, 1990 to obtain partial custody of Tyler, born December 7, 1989. Appellant’s complaint averred, inter alia, Tyler resided with appellee, appellant was Tyler’s natural father, appellee was Tyler’s natural mother, and Tyier was born out of wedlock. On April 20, 1990, the parties, represented by counsel, appeared before a special custody master to contest the matter. By agreement of the parties, stipulation of counsel and with the approval of the court, it was ordered that the parties and Tyler submit themselves to HLA blood tests, the costs of which were to be paid in advance by appellant. Appellant deposited $300 with the Domestic Relations sections of the Court of Common Pleas of Northampton County to cover the costs of the HLA blood tests. The Domestic Relations section notified both parties they were required to appear on September 5, 1990 for tests, but on that date, appellee failed to appear with Tyler and on September 24, 1990, appellant filed a petition for contempt against appellee. On October 9, 1990, appellee filed a petition to vacate the Order averring, inter alia, that she failed to appear for testing because at the time she entered the agreement, the Supreme Court’s most recent pronouncement on the issue of blood testing, John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, _ U.S. _, 111 S.Ct. 140, 112 L.Ed.2d 107 had not been published. Appellee further averred the decision of the Supreme Court in John M., supra, made the Order of court compelling blood testing void. The trial court, on October 10, 1990, then entered the Order which forms the basis of this appeal.

We are called upon now by appellant to determine whether the trial court abused its discretion in vacating an Order requiring the natural mother of a child of allegedly disputed parentage and her child to undergo blood tests, pursuant to the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. § 6131 et seq. (Repealed. 1990, Dec. 19, P.L. 1240, No. 206, § 6, effective in 90 days, now codified at 23 Pa.C.S. § 5104), in light of the Supreme Court's subsequent decision in John M., supra. The portion of the Uniform Act on Blood Tests upon which appellant relies states:

Authority for test
In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.

42 Pa.C.S. § 6133, repealed, currently at 23 Pa.C.S. § 5104(c). While the Act creates a statutory right to obtain blood testing to determine paternity, the right is not absolute and must be balanced against competing societal/family interests.

In this case, appellant seeks to rebut the presumption of legitimacy. This presumption is time-honored and one of the strongest presumptions known to the law. John M., supra; Minnich v. Rivera, 509 Pa. 588, 506 A.2d 879 (1986); Cairgle v. American Radiator Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951); Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990); Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1990). “Traditionally, that presumption could be rebutted only by proof that a husband was incapable of procreation or had no access to his wife during the relevant period.” Michael H. v. Gerald D., 491 U.S. 110, 124, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91 (1989), rehearing denied, 492 U.S. 937, 110 S.Ct. 22, 106 L.Ed.2d 634.

No such proof has been produced in this case and we find the Supreme Court’s holding in John M., though based on a slightly different factual scenario, persuasive and controlling in the case before us. As noted by a recent panel of this Court:

In John M., the Supreme Court decided that a man who alleged that he was the father of a child born during the marriage of the mother to another man (the “husband”) had no right to compel the husband to undergo blood testing under the Act. The mother and her husband had always and were presently living together with the child in question and their other three children as an intact family. The court based its decision primarily on the fact that section 6133 of the Act only required that the court order blood testing of the mother, child and alleged father. In John M., the petitioner, who was not the mother’s husband, sought to have the court order blood tests of the mother’s husband, the presumptive father, for the purpose of disproving the husband’s paternity.

Faust v. Faggart, 406 Pa.Super. 357, _, 594 A.2d 660, 663 (1991). While the Supreme Court acknowledged the alleged father had certain rights and interests in establishing his paternity, the Court also recognized the substantial “rights and interests of others involved in and affected by its decision, namely the mother, her husband, the family unit and the Commonwealth. When we factor in those rights and interests, we find that the scales weigh heavily ... against court-ordered blood tests.” John M., supra, 524 Pa. at 315-17, 571 A.2d at 1385.

In this case, although the putative father sought to compel the natural mother and the child to submit to blood tests rather than the husband, as was the case in John M., we find the underlying theory posited by the Supreme Court equally applicable to any situation in which an alleged father seeks to compel testing of any member of an existing family, whether it be father, mother or child.

Aside from the compelling policy considerations militating against the use of blood tests in this case, we find no evidence appellant has met his burden of proof of overcoming the presumption by clear and convincing evidence to the contrary. Burston v. Dodson, 257 Pa.Super. 1, 390 A.2d 216 (1978). As stated previously, appellant has not refuted appellee’s assertion she has been married continuously since 1986, more than three years before Tyler’s birth. Appellant has provided no evidence appellee and Tyler had not lived with the husband continuously or in any way rebutted the presumption Tyler was not the product of appellee’s marriage. As Chief Justice Nix stated in a Concurring Opinion in John M., in which a majority of the Court joined, “[A] third party who stands outside the marital relationship should not be allowed, for any purpose, to challenge the husband’s claim of parentage.... [T]he presumption in this situation is irrebuttable and conclusive....” Id., 524 Pa. at 323, 571 A.2d at 1389. Significantly, Chief Justice Nix then offered in a footnote that it would also follow that a third party standing outside the marital relationship is not entitled to compel either the mother or the child to undergo testing. Id. at n. 1. Since the presumption of legitimacy has not been rebutted and the fact the child was born during marriage has not been refuted, paternity is not an issue in this case and a blood test is not relevant. See Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988).

For the foregoing reasons, we find the trial court did not abuse its discretion in following the Supreme Court’s decision in John M., which we find applies to any situation in which a party attempts to rebut the presumption that a child born to a married woman is the child of that marriage. As it relates to any issues of due process, this finding is completely supported by the holding of the United States Supreme Court in Michael H., supra. We affirm the Order of October 10, 1990, however, we direct the Court of Common Pleas of Northampton County to return to appellant any unused monies which he remitted in advance for the costs of blood testing.

Order affirmed.

BROSKY, J., concurs.

BROSKY, Judge,

concurring.

I am in agreement with the majority’s finding that the trial court did not abuse its discretion in vacating the Order requiring appellee and her son to undergo blood tests pursuant to 23 Pa.C.S. § 5104. I am also in agreement with the analysis employed by the majority. However, I do not wish to have conveyed by the language of the majority view that the sanctity of the family unit may never be disturbed by the husband and/or wife in the determination of paternity of a child. This concurrence is to cite some instances where at the request of a wife or husband the court did compel blood testing of a third party alleged to be the biological father of the wife’s child.

In reviewing the caselaw dealing with the right of a wife or husband to compel blood testing of a putative father it is necessary to examine the facts of each particular case; those facts are determinative of the specific holdings. The fact that a man and a woman are still married does not preclude the wife from compelling the blood test of a putative father in order to determine paternity of the wife’s child. Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1990); 23 Pa.C.S. § 5104(c). A husband or live-in paramour can also compel blood testing of a putative father. Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988).

We note that in the cases in which the wife or husband was not permitted to compel testing of the putative father the family unit was still intact, the husband had consented to paternity by holding the child out as his own and/or providing financial support, the wife’s first husband had been ordered to provide child support, or the husband had assumed parental responsibilities with knowledge that his biological paternity was questionable. See Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990); Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990); Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988).

I submit this Concurring Opinion for the purpose of stressing that, while a wife, husband, a family unit and this Commonwealth have substantial rights and interests in insuring that a family unit remains intact where viable, court ordered blood testing of a putative father remains an option available to a husband or wife in certain circumstances.

      . Although appellee filed no answer to appellant’s complaint, in her brief she asserts she has been married to her present husband since September 21, 1986, and thus Tyler was not born out of wedlock. Appellant does not dispute this assertion, which this Court accepts and considers crucial to our disposition of this case.

      . John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 111 S.Ct. 140, was argued December 12, 1989, and decided March 19, 1990.

      . We also adopt the dicta of the Supreme Court in John M., supra, that:
      Since the legal distinction between “legitimate" and “illegitimate" children has now been eliminated in the Commonwealth by statute, the phrase "presumption of legitimacy” is now meaningless. Thus, this Court will no longer use the phrase “presumption of legitimacy" to describe the "presumption that a child born to a married woman is a child of the marriage," and therefore of the woman’s husband.

        Id., 524 Pa. at 311-15, 571 A.2d at 1383-84, n. 2.


author: JOHNSON, Judge: CERILLO, Judge,

text:
    597 A.2d 1237
    COMMONWEALTH of Pennsylvania v. Craig VAN ALLEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 15, 1991.
    Decided Oct. 9, 1991.
    Hugh A. Donaghue, Media, for appellant.
    William H. Ryan, Jr., Dist. Atty., Media, for Com., appellee.
    Before CIRILLO, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

This is an appeal from the Order entered on October 18, 1990, dismissing Craig Van Allen’s first petition for relief under the provisions of the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq., without a hearing and without appointment of counsel. We vacate the order and remand for appointment of counsel.

Following a jury trial, Van Allen was found guilty of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1) and terroristic threats, 18 Pa.C.S.A. § 2706. By Order dated May 16,1988, the trial court denied Van Allen’s post verdict motions and on June 7, 1988 imposed judgment of sentence of four to ten years imprisonment. Van Allen appealed to the Superi- or Court which affirmed the judgment of sentence on January 10, 1989. Commonwealth v. Van Allen, Memorandum Opinion, January 10, 1989, No. 1967 Philadelphia 1988, 388 Pa.Super. 666, 560 A.2d 241. Subsequently, Van Allen filed a Petition for Allowance of Appeal which was denied on August 30, 1989, 523 Pa. 631, 564 A.2d 1260.

On June 20, 1990, Van Allen, submitted a PCRA petition pro se and in forma pauperis, therein requesting appointment of new counsel to represent him throughout post conviction proceedings. (The record is not clear as to when Van Allen’s trial counsel withdrew from representing Van Allen). Van Allen’s petition presented two substantive issues: 1) the trial judge’s instructions to the jury were improper; and 2) the victim's testimony at trial was not credible and was perjured.

Following the filing of an Answer by the Commonwealth, the trial court on October 18, 1990, dismissed Van Allen’s petition without a hearing and without appointing counsel. In its Opinion, the trial judge concluded that Van Allen’s challenge to the propriety of the trial court’s jury instructions was addressed by the Superior Court, the highest appellate court to which Van Allen had the right of review, therefore, the propriety of the jury instructions had been previously litigated and could not be the basis for post-conviction relief under 42 Pa.C.S.A. § 9543. In addition, the trial court concluded that the second issue raised in Van Allen’s petition, concerning the credibility of the victim’s testimony, had been waived.

Van Allen subsequently filed an application for leave to file and proceed on appeal in forma pauperis and for appointment of counsel. On February 19, 1991, the court granted his petition and appointed counsel to represent Van Allen on appeal. On appeal, Van Allen argues that the trial court erred in summarily dismissing his first PCRA petition without an evidentiary hearing and without appointing counsel to advise or assist Van Allen during his first PCRA petition. Van Allen asserts that pursuant to Pennsylvania Rule of Criminal Procedure 1504, and in light of his indigence, he should have been permitted to amend his first PCRA petition with the aid of counsel before the court considered the merits of his initial PCRA petition. We agree.

Pennsylvania Rule of Criminal Procedure 1504 provides in pertinent part:

Rule 1504. Appointment of Counsel; Forma Pauperis
(a) When an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first motion for post-conviction collateral relief.
(b) On a second or subsequent motion, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided in Rule 1508, the judge shall appoint counsel to represent the defendant.

Further, the Comment to Rule 1504 provides:

Consistent with Pennsylvania post-conviction practice under former Rules 1503 and 1504, it is intended that counsel be appointed in every case in which a defendant has filed a motion for post-conviction collateral relief for the first time and is unable to afford counsel or otherwise procure counsel. However, the rule now limits appointment of counsel on second or subsequent motions so that counsel should be appointed only if the judge determines that an evidentiary hearing is required.

(Emphasis ours).

It is clear from our review of the record that Van Allen filed his first petition for post-conviction collateral relief alleging indigence and requesting the appointment of counsel to assist him. The trial court, after determining that Van Allen’s issues raised in the pro se petition lacked merit, dismissed Van Allen’s petition without an evidentiary hearing and without appointing counsel. We hold that the failure to appoint counsel for Van Allen was error.

Rule 1504 is drafted in mandatory language. Commonwealth v. Tunicliff, 402 Pa.Super. 294, 586 A.2d 976 (1991). The rule provides that where a first-time petitioner satisfies the judge that he is indigent, the judge shall appoint counsel. Thus, before the trial court disposes of a first post conviction petition, it must first make a determination as to the petitioner’s indigence and if the petitioner is indigent, the court must appoint counsel to assist in the preparation of said petition. Commonwealth v. Keeney, 367 Pa.Super. 16, 19, 532 A.2d 33, 34 (1987).

In Tunicliff, supra, it was apparent from the trial court’s appointment of appellate counsel that the petitioner was indigent. Both requests for the appointment of counsel (during her initial PCRA petition and on appeal) alleged the same facts to establish her indigence. We held that if Tunicliff deserved counsel on appeal, she deserved counsel when her request was first made. We, therefore, remanded to the trial court so that Tunicliff could present her PCRA petition with the benefit and advice of counsel.

Similarly, in the instant case, the trial court appointed appellate counsel to represent Van Allen on appeal from the denial of his PCRA petition. Like in Tunicliff, Van Allen alleged the same facts in both requests for appointment of counsel, thus, it must follow that Van Allen was indigent when he first requested appointment of counsel. We hold that since Van Allen was indigent, the trial court erred in disposing of his first PCRA petition without appointing counsel. We, therefore, remand to the trial court so that Van Allen may present his first PCRA petition with the benefit of advice of counsel.

Accordingly, we vacate the order dismissing Van Allen’s PCRA petition and remand the case for proceedings consistent with this Opinion.

Order vacated and case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

CIRILLO, J., files a concurring opinion.

CERILLO, Judge,

concurring:

The majority has properly disposed of this appeal. However, because I disagree with the current state of the law, I am unable to join in the majority’s decision.

I agree with the trial court’s determination that appellant Craig Van Allen is ineligible for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. The trial court has properly concluded that the petition is frivolous and without support in the record, and under these circumstances I do not endorse the appointment of counsel. I recognize that this is Van Allen’s first PCRA petition. The majority has correctly construed Pennsylvania Rule of Criminal Procedure 1504, which requires the appointment of counsel for an indigent defendant on the first post-conviction relief petition. Nonetheless, I write separately to voice my disagreement with this requirement.

As the majority has stated, this case was directly appealed to this court and the judgment of sentence was affirmed. A petition for allowance of appeal was denied by the Pennsylvania Supreme Court. In his pro se PCRA petition, Van Allen raised two claims: (1) the trial court erred in its instructions to the jury; and (2) the testimony of the victim, Van Allen’s sister, was perjured. The jury instruction issue has been previously litigated, and the issue of the victim’s credibility has been waived. See 42 Pa.C.S. § 9543(a)(3), 9544(a), (b). In the alternative, Van Allen's claim that his sister’s testimony was perjured, without more, raises no basis for statutory relief. 42 Pa.C.S. § 9543.

It is patently clear that Van Allen is not entitled to collateral relief under the statute. Id. See also Commonwealth v. Williams, 389 Pa.Super. 489, 567 A.2d 709 (1989). Despite the frivolity of this appeal, the current state of the law requires appointment of counsel. See Pa.R.Crim.P. 1504(a) and comment. See also Commonwealth v. Kaufmann, 405 Pa.Super. 335, _, 592 A.2d 691, 694 (1991) (trial court’s authority to summarily dismiss a petition for post-conviction relief under Pa.R.Crim. 1507 must be read in conjunction with Pa.R.Crim.P. 1504, which provides for appointment of counsel for petitioner who is indigent and seeks initial review of petition for post-conviction relief); Commonwealth v. Perry, 386 Pa.Super. 534, 563 A.2d 511 (1989) (it is only on second and subsequent PCRA petitions that the new rules render the appointment of counsel discretionary with the trial court).

The former statute authorizing post-conviction relief, the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq., was partially repealed and substantially modified effective April 13, 1988. See 42 Pa.C.S. § 9541-9546. In the former statute, the legislature specifically provided that appointment of counsel was not required where the pauper petition was frivolous:

... If appointment of counsel is so requested and the court is of the opinion that a hearing on the petition is required, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel. The appointment of counsel shall not be required if the petitioner’s claim is patently frivolous and without a trace of support in the record as provided by section 9549 (relating to hearing on petition).

42 Pa.C.S. § 9551(b) (emphasis added), repealed, April 13, 1988, P.L. 336, no. 47, § 4. There is no comparable provision in the new statute, evidencing the legislature’s intent to abrogate the former section. See 1 Pa.C.S. § 1961. Section 1961 of the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq., provides that provisions of the former statute which are omitted from the reenactment “shall be deemed abrogated, and only the new or changed provisions shall be deemed to be the law from the effective date of the reenactment.” 1 Pa.C.S. § 1961. I remain dissatisfied, however, in my attempts to reconcile this construction with the new provisions enacted by the General Assembly in the Act of April 13, 1988. The new provisions clearly reflect a “legislative perception that courts had been too generous in entertaining claims for relief under the former statute” as reflected in the Commonwealth v. Brimage, 398 Pa.Super. 134, 140 n. 12, 580 A.2d 877, 880 n. 12 (1990). Cf. Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988) (recognizing the problems posed by repetitive post-conviction petitions); Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981); Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980).

Moreover, I discern no need to limit the trial court’s authority to summarily dismiss a frivolous petition by requiring appointed counsel to “separate the grain from the chaff” as a means to ensure effective appellate review. Perry, 386 Pa.Super. at 539 n. 2, 563 A.2d at 513 n. 2. I am confident that the practiced eye of the trial court can effectively perform this function.

      . Pennsylvania Rule of Criminal Procedure 1504(a) provides:
      When an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first motion for post-conviction collateral relief. Pa.R.Crim.P. 1504(a).