author: WIEAND, Judge:

text:
    473 A.2d 1017
    Paul S. SHAFFER, Appellant, v. Robert STEWART and Liverant, Senft and Cohen.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed March 2, 1984.

      Allen H. Smith, York, for appellant.
    Albert G. Blakey, York, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

May an attorney who, without probable cause, files a caveat to the probate of a will for the sole purpose of “extracting an unwarranted settlement” be sued for malicious use of process after he and his client have agreed to a dismissal of the caveat? The trial court held that such actions could not be maintained because there had been no seizure of property. Therefore, it sustained preliminary objections in the nature of a demurrer to the complaint and entered judgment in favor of the attorney. This appeal followed. We reverse.

Richard F. Buser died August 17, 1981, leaving a will and several codicils which purported to name Paul S. Shaffer as executor and principal beneficiary. When Shaffer presented the will and codicils for probate he found that Robert Stewart, Esquire, had filed a caveat with the Register of Wills on behalf of several named persons. These persons were neither heirs of the decedent nor testamentary beneficiaries “under any colorably valid [w]ill” and, therefore, lacked standing. On or about September 29, 1981, Walter D. Fisher, who did have standing to challenge probate of the decedent’s: will, joined the caveat previously filed by Stewart. Thereafter, Stewart and his clients agreed that the clients’ interest in the will contest should be dismissed; and the proceedings continued on behalf of Fisher alone. Stewart’s filing of the initial caveat, according to the averments of the amended complaint filed by Shaffer, was done “without reasonable or probable cause” and “maliciously and in utter disregard of the Plaintiff’s rights, and with a design and purpose of causing undue delay in the administration of the Estate of Richard F. Buser and with a view toward extracting an unwarranted settlement from the Plaintiff.”

Malicious use of process is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause. Dietrich Industries, Inc. v. Abrams, 309 Pa.Super. 202, 208, 455 A.2d 119, 122 (1982). See also: Dumont Television and Radio Corp. v. Franklin Electric Co., 397 Pa. 274, 279-280, 154 A.2d 585, 587-588 (1959); Morphy v. Shipley, 351 Pa. 425, 429, 41 A.2d 671, 673-674 (1945); Triester v. 191 Tenants Association, 272 Pa.Super. 271, 279, 415 A.2d 698, 703 (1979). It must be distinguished from the separate and distinct tort of abuse of process which occurs when the legal process is utilized for some unlawful purpose, not one for which it was intended. In other words, it is a perversion of legal process. Dumont Television and Radio Corp. v. Franklin Electric Co., supra; Dietrich Industries, Inc. v. Abrams, supra; Triester v. 191 Tenants Association, supra. A cause of action for abuse of process requires “[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process ... [;] there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Di Sante v. Russ Financial Co., 251 Pa.Super. 184, 189, 380 A.2d 439, 441 (1977), quoting Prosser, Torts § 100 at 669 (2d ed. 1955). See also: Junod v. Bader, 312 Pa.Super. 92, 96-7, 458 A.2d 251, 253 (1983).

In the instant case, the averments of the amended complaint are that the caveat was filed maliciously and without probable cause in the hope of effecting a settlement on behalf of persons having no legally recognizable claim. Although appellant argues that he has causes of action for malicious use and abuse of process, it is readily apparent that if he has a cause of action, that cause can only be for malicious use of civil process. His complaint does not allege a cause of action for abuse of process. See and compare: Dumont Television and Radio Corp. v. Franklin Electric Co., supra (malicious use of process if defendant filed involuntary bankruptcy petition against bankrupt to prevent plaintiff from collecting on recently acquired judgment when defendant was not a creditor of the bankrupt); Triester v. 191 Tenants Association, supra (malicious use of process where equity action instituted without probable cause for purpose of delaying conversion to condominiums).

The tort of malicious use of process has been codified at 42 Pa.C.S. §§ 8351-8354. This statute, which became effective February 17, 1981 and is applicable to causes of action accruing thereafter, provides as follows:

“§ 8351 Wrongful use of civil proceedings
(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
(b) Arrest or seizure of person or property not required. — The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this Subchapter.”

It is apparent from a reading of this statute that the legislature has abolished the English rule which was followed in Pennsylvania for many years and which held that an action for malicious use of process could not be maintained in the absence of a seizure of the plaintiff’s person or property. In order to recover under the statutory cause of action, three essential elements must be proved: “(1) that the underlying proceedings terminated favorably to the [plaintiff]; (2) that the defendant caused those proceedings to be instituted without probable cause; and (3) malice.” Junod v. Bader, supra, 312 Pa.Superior Ct. at 95, 458 A.2d at 253.

The law in Pennsylvania has thus been brought into conformity with the Restatement (Second) of Torts § 674. With respect to the liability of an attorney for the wrongful use of civil process, the Restatement suggests in comment d:

“An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see § 675); and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676). An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.”

In the instant case, the reason given by the trial court for sustaining preliminary objections, i.e., that the complaint failed to contain an averment that appellant’s property had been seized, was erroneous. The trial court’s assignment of an invalid reason for sustaining preliminary objections in the nature of a demurrer to the complaint, however, does not relieve this court from its responsibility to determine whether the averments of the complaint nevertheless state a cause of action. When we review the complaint for this purpose, we are required to accept as true all well-pleaded facts in the complaint, as well as all inferences reasonably deducible therefrom, Graham v. Today’s Spirit, 503 Pa. 52, 55 n. 1, 468 A.2d 454, 456 n. 1 (1983); Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983); Binswanger v. Levy, 311 Pa.Super. 41, 43, 457 A.2d 103, 104 (1983); Ace v. Argonaut Insurance Co., 307 Pa.Super. 200, 202, 452 A.2d 1384, 1385 (1982); but we are not required to accept the pleader’s conclusions or averments of law. Rose v. Wissinger, 294 Pa.Super. 265, 270, 439 A.2d 1193, 1196 (1982); Dominski v. Garrett, 276 Pa.Super. 18, 23, 419 A.2d 73, 75 (1980).

The averments of the amended complaint are that Robert Stewart knew that the persons on whose behalf he filed a caveat had no standing to contest the probate of the decedent’s will and that subsequently he agreed voluntarily to a dismissal of their claims. When the caveat was filed and prevented the immediate probate of the decedent’s will, a civil proceeding had been instituted within the meaning and intent of the Pennsylvania statute. The purpose and effect of the caveat were to cause the Register of Wills to delay probate of an otherwise facially valid will until all “interested parties” had had a chance to be heard. See: 40 P.L.E. Wills § 177 (1961). The subsequent dismissal of the caveat with respect to Stewart’s clients due to their lack of standing was a.termination of the proceedings in favor of appellant. If, as appellant alleges, the caveat was filed maliciously and without probable cause and caused harm or injury, the attorney who filed the same can be made to respond in damages. See: Annot., 35 A.L.R.3d 651.

It remains to be determined whether appellant has adequately alleged that the filing of the caveat was done maliciously and for an improper purpose. The averment of the complaint is that Stewart acted to extract an unwarranted settlement from appellant. Does this aver an improper purpose for the caveat so as to render malicious the filing thereof? The answer can be found in the Restatement (Second) of Torts, § 676, where, in comment c, it is stated that civil proceedings are initiated for an improper purpose “when the proceedings are initiated for the purpose of forcing a settlement that has no relation to the merits of the claim. This occurs, for example when a plaintiff, knowing that there is no real chance of successful prosecution of a claim, brings a ‘nuisance suit’ upon it for the purpose of forcing the defendant to pay a sum of money in order to avoid the financial and other burdens that a defense against it would put upon him.” An allegation that a caveat to a will has been filed not for purposes of contesting the will but to extort a settlement in favor of disinterested parties states an improper purpose within the meaning of 42 Pa. C.S. § 8351.

A review of appellant’s amended complaint discloses that he has alleged those facts which are essential to a cause of action for malicious use of process. Whether he can prove those facts and whether he sustained damage where, as here, the contest by improper parties was promptly withdrawn voluntarily and the contest was pursued by a proper party is not before us; and with respect to such matters we express no opinion.

Reversed and remanded. Jurisdiction is not retained.

      . The amended complaint contains an averment that Stewart was acting as agent for the law firm of Liverant, Senft and Cohen. This was sufficient to state a cause of action based on vicarious liability. See: 2A Anderson, Pennsylvania Civil Practice § 1019.35. For purposes of simple reference, however, the opinion will refer to Robert Stewart as defendant and appellee.

      . Although appellant’s complaint also contains an averment that Stewart allied himself with Fisher’s counsel in pursuing the caveat on behalf of Fisher, Fisher’s claim has not been adjudicated and, in any event, Stewart cannot be liable for abuse of process because of legal assistance rendered to a legitimate claimant. In such a situation, the attorney has done no more than attempt to "carry out the process to its authorized conclusion,” regardless of what his motives in doing so may have been. See: Dietrich Industries, Inc. v. Abrams, supra, 309 Pa.Superior Ct. at 212, 455 A.2d at 125.

      . See: Act of December 19, 1980, P.L. 1296, No. 232, § 2, 42 Pa.C.S.A. § 8351.


source: Caselaw Access Project

author: MONTGOMERY, Judge: McEWEN, Judge,

license: Public Domain

text:
    473 A.2d 1021
    In re ADOPTION OF MICHAEL J.C. Appeal of BARBARA C.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1983.
    Filed March 2, 1984.
    Petition for Allowance of Appeal Denied April 30, 1984.

      Suzanne Noble, Chester, for appellant.
    Joseph E. Lastowka, Jr., Media, for appellee.
    Howard Richard, Media, for participating party.
    Before SPAETH, President Judge, and CAVANAUGH, McEWEN, BECK, MONTEMURO, MONTGOMERY and CERCONE, JJ.
   MONTGOMERY, Judge:

This is an appeal by the natural mother from an order terminating her parental rights.

Barbara C. was 17 years old at the time of Michael’s birth on April 24, 1981. Approximately one month before his birth, she decided to place her child for adoption and made arrangements with an attorney who was to act as the intermediary. While she was still in the hospital recuperating from the baby’s birth, Barbara executed an Affidavit of Consent and surrendered the child to the intermediary who then turned the child over to George and Barbara A., the preadoptive parents. On June 8, 1981, a Report of Intent to Adopt was filed. Some time during the summer, Barbara contacted the intermediary and requested visitation with Michael and his ultimate return to her. When these requests were denied, Barbara filed a habeas corpus petition, on August 12, 1981. This petition was transferred to the Orphans’ Court Division on September 14, 1981, and a hearing was scheduled for October 20,1981. On September 16, 1981, Barbara’s request for visitation was denied without a hearing. The petition to involuntarily terminate Barbara’s parental rights was not filed until October 27, 1981. Further delays ensued and hearings were finally held on January 5, 6 and 7, 1982. Ultimately, the Honorable Francis Catania entered an order terminating Barbara’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). Barbara appealed and a panel of this court affirmed with Judge Lipez dissenting. Barbara’s petition for reargument before the court en banc was granted.

Barbara first argues that the trial court erred in failing to recognize that she had timely revoked her consent to the adoption and in failing to order Michael’s return to her immediately upon such revocation. The natural parent’s “right” to revoke a consent to adoption is derived from the Adoption Act, 23 Pa.C.S.A. § 2101 et seq. The general rule is that the natural parent’s consent to an adoption is required. 23 Pa.C.S.A. § 2711(a)(3). Regardless of § 2711, however, consent is not required if the parent’s rights have already been terminated or if, after notice and hearing, the court finds that grounds for involuntary termination exist under § 2511 of the Act. 23 Pa.C. S.A. § 2714. Thus, the revocation of consent by a natural parent does not automatically halt the adoption proceeding. Rather, it triggers an inquiry into the statutory grounds for involuntary termination set forth in § 2511(a). Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981). These are:

(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(3) The parent is the presumptive but not the natural father of the child.
(4) The child is in the custody of an agency, having been found under such circumstances that the identity or whereabouts of the parent is unknown and cannot be ascertained by diligent search and the parent does not claim the child within three months after the child is found.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the condition which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S.A. § 2511(a).

In terminating Barbara’s rights, Judge Catania specifically relied on § 2511(a)(2). We are not, therefore, dealing with the six-month period set forth in § 2511(a)(1). Cf., Commonwealth ex rel. Grimes v. Yack, supra; K.N. v. Cades, 288 Pa.Super. 555, 432 A.2d 1010 (1981). For these reasons, we cannot accept appellant’s argument that her revocation of consent within six months required the trial court to return Michael to her and terminate the adoption proceeding.

Appellant’s main argument centers around the applicability of § 2511(a)(2) to the involuntary termination of parental rights of a natural parent within the factual context presented here; that is, where the natural parent voluntarily surrenders the child for adoption to an intermediary, who is not an agency (a “private” adoption), the surrender takes place prior to the mother’s discharge from the hospital after the birth, and the mother revokes her consent to the adoption within six months (so as to make § 2511(a)(1) inapplicable).

In any context, the complete and irrevocable termination of parental rights is one of the most serious and severe steps a court can take, carrying with it great emotional impact for both the parent and the child. In re Adoption of Sarver, 444 Pa. 507, 281 A.2d 890 (1971). The right to conceive and raise one’s children has long been recognized as one of our basic civil rights. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Freedom of personal choice in matters of family life, and the concomitant freedom from unwarranted governmental intrusion, is a fundamental liberty interest protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Because of the importance placed on the family unit, governmental intrusion into the family, and disruption of the parent-child relationship, is warranted only in exceptional circumstances. Even when such intrusion is warranted, it must be accompanied by every possible effort to reunite the family. Matter of M.L.W., 307 Pa.Super. 29, 452 A.2d 1021 (1982). Termination of parental rights does more than disrupt the parent-child relationship; it totally destroys it. “The termination of parental rights, however, means that the child is dead so far as that parent is concerned.” In re William L., 477 Pa. 322, 383 A.2d 1228 (1978) (Manderino, J., dissenting). The standard of proof is the same whether the termination action is brought by the state or by private individuals because of the state’s parens patriae interest. In re T.R., 318 Pa. 460, 465 A.2d 642 (1983).

Involuntary termination of parental rights can only be accomplished through the statutory scheme set forth in the Adoption Act and only as an aid to adoption. In re B.E., 474 Pa. 139, 377 A.2d 153 (1977). To effect an adoption, this statutory scheme must be strictly complied with. In re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10 (1979) . With these principles in mind, we turn to an examination of the particular statutory provision relied upon.

Prior to the Adoption Act of 1970, the only basis for terminating parental rights was abandonment. Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972). The additional grounds of parental incapacity, abuse or neglect appeared as § 311(2) in the 1970 Act. Section 2511(a)(2) of the Adoption Act of 1980, the section relied upon here, is a verbatim reenactment of § 311(2); therefore, the substantive law developed under § 311(2) is continued under § 2511(a)(2). Christner v. Christner, 366 Pa. 41, 76 A.2d 361 (1950).

In order to terminate parental rights under this “parental incapacity” section, three things must be shown: (1) repeated and continued incapacity, abuse, neglect or refusal which (2) has caused the child to be without essential parental care, control or subsistence, and (3) the causes of this incapacity, abuse, neglect or refusal cannot or will not be remedied. In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975). If any of these elements are missing or insufficiently proven, the court cannot terminate the parent’s rights. See, e.g., Jones Appeal, supra (a single act does not demonstrate continuing incapacity so as to justify termination).

Appellant contends that, since Michael was never in her physical custody, the requirements of the statute could not be proven because her conduct could not have caused him harm. While we agree with appellant that the “causation” element must be proved before parental rights can be terminated, and that this element was not sufficiently proved in this case, we need not go so far as to hold that the causation element can never be proved unless the parent has physical custody of the child. Cf., In re Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980).

Factually, the trial court relied in part on a variety of admittedly serious problems Barbara had when she was 15 and 16 years old. These included use of illegal drugs and alcohol, sexual promiscuity, one hospital admission for alleged drug or alcohol overdose, at least two incidents of alleged violence — one toward her mother and one toward a child who lived in the same apartment complex, an admission to Delaware County Children’s Cottage, dropping out of school, and taking a trip to Florida without her mother’s permission. However inappropriate such behavior might be, we believe that such behavior alone, without a showing of the effect on the child, is an insufficient basis on which to terminate parental rights.

In both neglect and custody cases, we have required such a nexus. For example, in In re Rinker, 180 Pa.Super. 143, 117 A.2d 780 (1955), it was held that a mother’s adultery and excessive use of alcohol did not warrant a finding that her children were neglected because the evidence revealed that these activities took place away from the home and the children and the children were apparently adequately cared for. In custody cases, “immoral conduct” must be shown to adversely affect the welfare of the child before it can be considered as a factor in determining custody. See, e.g., Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976) (meretricious relationship). Since the legal standard in these types of cases is less stringent than that required to terminate parental rights, we do not hesitate to use them to support our position that such a causal connection is also required in termination cases. See also, Matter of M.L.W., supra (mother’s I.Q. of 65 given undue weight); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976) (difference in income irrelevant unless it vitally affects the child’s welfare); In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (mother’s relationship with married man and mother’s career-mindedness not shown to have adverse effect on children); Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977) (father’s violence toward mother, outside the presence of the children, insufficient to deny visitation).

In the instant case, the particular incidents listed in the trial court’s opinion occurred for the most part at least one year prior to Michael’s birth and two years prior to the hearing and no evidence was presented to show that Barbara’s conduct adversely affected him; (for example, there is no evidence of addictive drug use during her pregnancy which adversely affected his health). In addition, we are cognizant of the principle that one’s past misconduct is not controlling where a parent is presently fit. Commonwealth ex rel. Horton v. Burke, 190 Pa.Super. 392, 154 A.2d 255 (1959). We cannot, therefore, affirm the termination order on this basis.

The only other evidence presented in support of the termination petition was the testimony of two psychiatrists, both of whom had evaluated Barbara solely for the purpose of this proceeding. For several reasons, we are unable to find that this testimony is sufficient to support the termination order.

In the first place, this evidence does not completely fulfill the requirements of § 2511(a)(2). The most obvious omission is the lack of testimony concerning the element of remediability. Both of appellees’ experts opined that Barbara was presently incapable of parenting. This alone is insufficient because termination cannot be ordered if there is a reasonable possibility that the causes of incapacity can be remedied. In Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982).

It is on this point that we observe a crucial distinction between what occurred in this “private” adoption and what would have been required if an agency had been involved — the elements of notice and opportunity to correct any deficiency. In response to an argument that § 311(2) (the predecessor of § 2511(a)(2) is unconstitutionally vague, our Supreme Court has held that the “remediability” requirement excludes the possibility that a parent’s rights will be terminated when the parent has insufficient notice of what conduct is required or prohibited. In re William L., supra. Indeed, in that case, Justice Roberts noted that

... the requirement that the conduct be shown to be irremediable could be met rarely, if ever, absent evidence that the deficiencies in parental conduct had been identified, and the parent was nonetheless unwilling or unable to modify the conduct to remedy the situation.

Id., 477 Pa. at 332 n. 5, 383 A.2d at 1232 n. 5.

Although the petitioner in William L. was an agency, rather than a private individual as in the instant case, this difference cannot change the burden of proving all the elements of § 2511(a)(2). See, In re T.R., supra.

We note as well that in “agency” adoptions the court must consider the services or assistance offered by or available from the agency before determining that the parent’s incapacity cannot or will not be remedied. 23 Pa.C.S.A. § 2511(a)(5). While we certainly do not mean to imply that an agency be involved in every adoption, we think it might be advisable in many “private” cases for the trial court to determine what assistance is available to the parent, whether the parent is aware of such services and whether any attempt has been made to procure such assistance. In this way the court could avoid the double standard problem often present when parental rights are terminated in a “private” proceeding when such rights could not have been terminated in an “agency” proceeding.

However, even if the experts’ opinions had addressed all the elements of § 2511(a)(2), we would be unable to affirm a termination order based only on such evidence. Both the United States Supreme Court and the Pennsylvania Supreme Court have held that an order terminating parental rights must be supported by clear and convincing evidence, a more demanding standard than the preponderance of the evidence standard permissible in other cases. Santosky v. Kramer, supra; In re T.R., supra. Since appellant had not had the opportunity of parenting her child, the experts’ opinions were basically predictions of Barbara’s parenting capabilities, based at least in part on her past conduct as enumerated above. While such information might well be an important element of Barbara’s life for therapeutic purposes, it was not relevant to terminating her parental rights. The interests of the therapist and the interests of the law are not necessarily the same. Commonwealth ex rel. Grimes v. Yack, supra.

More important, however, is the fact that the expert testimony involved in this case was predictive in nature; that is the experts were expected to render their opinion on whether Barbara would be able to parent when, because of the factual circumstances of the case, she had no opportunity to do so. The problem with relying on this type of evidence as a basis for terminating parental rights was somewhat understated by one of appellant’s experts: “Predictability is very difficult” (T.l/6/82 p. 377). Our research in this regard reveals not only that it is difficult to predict that a person will behave in a certain way but that expert opinion which predicts behavior is not particularly reliable. See, People v. Burnick, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352 (1975); and Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693 (1974) for a collection and discussion of the studies done in this area. Without other evidence of parental incapacity, we do not believe the speculative type of testimony presented in the instant case constitutes clear and convincing evidence of parental incapacity. See, Matter of Mark T., 296 Pa.Super. 533, 442 A.2d 1179 (1982) (Beck, J., Concurring Opinion).

Appellees contend that § 2511(b), a section added to the Adoption Act in 1980, modifies § 2511(a)(2) by mandating that the court take into consideration the “best interests of the child.” Specifically, this section provides:

(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

We disagree with appellees for two reasons. First, we do not find the concepts of the “best interest of the child” and the “needs and welfare of the child” to be interchangeable. The “best interests” standard traditionally has been applied to custody disputes. Commonwealth ex rel. Bender v. Bender, 197 Pa.Super. 397, 178 A.2d 779 (1962). Where the issue is visitation, or partial custody which closely resembles visitation, a stricter standard prevails; that is, visitation can be denied only if the parent possesses such severe mental or moral deficiencies as to constitute a grave threat to the welfare of the child. Scott v. Scott, 240 Pa.Super. 65, 368 A.2d 288 (1976); Commonwealth ex rel. Turner v. Strange, 179 Pa.Super. 83, 115 A.2d 885 (1955). The “best interests” standard is not the correct principle to apply to visitation cases. In re Damon B., 314 Pa.Super. 391, 460 A.2d 1196 (1983). If such a standard cannot be used to limit a parent’s relationship with her child, surely it cannot be used to sever such a relationship completely. Rather, we believe that the words “needs and welfare” mean something quite different from the “best interests.” The former phrase denotes certain minimum requirements that all children are entitled to — adequate housing, clothing, food and love — whereas the latter connotes a weighing of two adequate but unequal situations (traditionally, the respective households of mother and father). Our Supreme Court has, in the past, refused to sanction the termination of parental rights where the children are fed and clothed, are in generally good health, and are not abused although the home is “submarginal” and the children might suffer from cultural deprivation. In re Geiger, supra. As noted most eloquently by the Honorable Robert E. Woodside, the law

was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.

In re Rinker, supra, 180 Pa.Superior Ct. at 148, 117 A.2d 783 (1955).

Secondly, the addition of § 2511(b) to the Adoption Act does not abrogate the requirements of § 2511(a). Section 2511(b) does not contain an additional ground for terminating parental rights; such grounds are contained in § 2511(a) only. Thus, until the requirement of § 2511(a) are met, there is no need to consider § 2511(b). Commonwealth ex rel. Grimes v. Yack, supra. We must, therefore, reverse the order of the lower court terminating Barbara’s parental rights.

Appellees have argued that this interpretation of the Adoption Act and the result we have reached will compel an all-or-nothing result; that is, unless parental rights are terminated, nothing could be done until some harm actually occurs to the child. We stress, however, that our decision in this regard relates only to the termination of Barbara’s parental rights; the determination of custody is a separate issue. There are numerous intermediate possibilities — temporary foster care, visitation, assistance to Barbara in learning appropriate parenting skills — between irrevocably terminating her parental rights and granting her unrestricted custody.

This brings us to the final issue in this matter — the determination of who should have custody of Michael at the present time. Appellant contends that a reversal of the termination order automatically requires that custody be granted to her whereas appellees argue that the evidence supports a determination that Michael’s best interests require that custody be granted to them. The resolution of this issue is made even more difficult because Michael has now been in the custody of appellees for over two years and, because Barbara’s visitation petition was denied, he does not even know his natural mother. While some of this delay can be attributed to the court system itself (but see, In re Davis, 502 Pa. 110, 465 A.2d 614 (1983) (even “normal” delays resulting from crowded court calendars “cannot be tolerated in child placement cases.”), at least one continuance resulted because appellees’ counsel had another trial scheduled at the same time as this one. In addition, Michael’s lack of a relationship with his mother could have been avoided had appropriate visitation been ordered. We find the denial of Barbara’s visitation petition without a hearing to be a highly unusual procedure; indeed, we do not see how the trial court could possibly determine that visitation would constitute a grave threat to the child’s welfare, Scott v. Scott, supra, without receiving any evidence. Nevertheless the damage is done and the issue that must be decided is whether Michael should remain in appellees’ custody, whether appellant should be awarded custody or whether some intermediate solution is preferable.

A custody determination, of course, must be based on the present circumstances of the parties. In re Leskovich, 253 Pa.Super. 349, 385 A.2d 373 (1978). Over two years have passed since the hearings in this matter. Those hearings dealt only with the termination issue and not with Barbara’s petition for custody or visitation. Therefore, we believe the appropriate course to be to remand this matter for proper consideration of this petition and for development of the complete and comprehensive record required in custody matters. See, In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979).

The order of the court below terminating the parental rights of Barbara C. is reversed and the case is remanded for proceedings not inconsistent with this opinion. Jurisdiction is not retained.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

The respect that I have for the insight of the distinguished author of the majority opinion, my learned colleague, Judge Harry M. Montgomery, is exceeded only by my conviction that appellant should not be permitted to tear this child from the love of the couple — the parents — into whose care she had thrust the child.

Appellant was seventeen years old and single when, on April 24,1981, she was delivered of the baby boy who is the subject of this proceeding. Appellant had for some time pursued her desire to place the child for adoption by completion of arrangements through an intermediary and, three weeks before the birth of the baby, on April 2, 1981, appellant appeared before the court, together with her mother and the named intermediary, to testify upon her request that the court order the intermediary to provide for the payment to her of the sum of three thousand dollars ($3,000.00) for recuperative expenses. The court approved the proposed disbursement after full hearing, held in chambers, at which appellant, after being advised of available alternatives to the placement of the child for adoption, declared her intention to place the infant for adoption after birth and agreed that the intermediary should provide for the placement of the child for adoption. It is to be noted that during the hearing, the appellant specifically rejected the alternatives to adoption that the court had carefully detailed and stated her belief that it would be in the best interest of the child if he were to be raised in a family setting and “have a father”, a setting in which he could have a “better life”. The mother of Barbara C. at the hearing on April 2, 1981, not only expressed on the record her approval of the decision to place the child for adoption but also, in her capacity as guardian of her daughter, consented to the proposed adoption.

On April 28, 1981, four days after the birth of the baby, appellant executed an Affidavit of Surrender and Consent to Adoption and surrendered custody of the child through the intermediary into the hands and care of the adoptive couple. The mother of Barbara C. participated in the surrender of the custody of the child to the intermediary on April 28, 1981, by joinder as a witness to the execution by her daughter of the Affidavit of Surrender and Consent to Adoption. Appellees, the adoptive couple, proceeded under § 2531 of the Adoption Act of 1980 to file, on June 8, 1981, a report of intention to adopt the child. Appellant, more than three months after she had surrendered custody of the child and had executed the Affidavit of Surrender and Consent to Adoption, filed on August 12, 1981, a petition for writ of habeas corpus to secure the return of the child to her custody. The adoptive couple filed a petition for involuntary termination of the parental rights of the natural mother on October 27, 1981. The court consolidated the actions and after the completion of lengthy and intense hearing proceedings, the trial judge terminated the parental rights of the mother under § 2511(a)(2) of the Adoption Act of 1980, 23 P.S. § 2511(a)(2) (supp. 1982-83), and awarded formal custody of the baby to appellees.

The trial court set forth quite a number of findings of fact upon which it based the determination that the parental rights of appellant should be terminated and there was, in my review, abundant competent evidence to support those findings of fact.

The trial judge considered the fact that appellant ran away from home at an early age and was required to be admitted to the Delaware County Childrens’ Cottage as a result of physically abusive behavior directed by her toward her mother. The court further noted that appellant had verbally abused one small child and had admitted to police that she had assaulted a five year old child whom she was babysitting, even though appellant herself at the termination hearing denied that she had struck the child.

There was considerable testimony concerning alcohol and drug abuse by appellant that would indicate such abuse was not occasional but was part of a behavior pattern that not only preceded but also followed the commencement of her pregnancy. A substantial basis for this conclusion is demonstrated by the notes of the physician appearing in a hospital emergency room record for September 1, 1980, that appellant is “well known here, with history of drug abuse and psychological problems, also currently pregnant ... ”. These notations were made eighteen months after appellant was admitted to the hospital for drug overdose, after an admitted consumption of alcohol and “angel dust”, and transferred to a mental hospital for treatment of her suicidal ideation, where her condition was diagnosed as “Drug Dependence, Alcohol Dependence [and] Depressive Neurosis”, even though she denied any drug or alcohol problem.

The promiscuous nature of appellant was well demonstrated to the court by the testimony of her girlfriend that appellant generally had sex “with whomever she was going out with” at the time and the information supplied by her own brother that she would have intercourse with different boys even though she had just met them one-half hour earlier.

The court noted that appellant had a violent temper demonstrated not only by her assault upon the five year old child for whom she had been babysitting but also by the physical abuse upon her own mother as well as upon her own friend as a result of which formal charges were filed against appellant before a District Justice. The court concluded appellant was unable to maintain habitable living quarters as a result of testimony from a friend of appellant and from the landlord of appellant that her apartment was filthy, that there was dog feces on the floor of the apartment and that the walls of the apartment were marred with painted obscene words as well as a large hole caused when appellant hurled a saxaphone during a dispute with her mother.

The court found the behavior of the appellant during the trial itself revealed “a marked tendency to filter out the truth of her past behavior.” That conclusion is certainly exemplified by the indication of appellant that she would return to school and also secure employment but would be able to care for the child as a result of financial aid from her grandmother and public assistance as well as the help of her grandmother in the actual care of the child. That plan of appellant belied the fact that the grandmother would have been unable to provide such care by reason of a disabling nerve disease compounded by chronic back problems and ignored the inability of appellant to maintain passing grades in high school as well as her eventual decision to leave school entirely. As much as these findings reflect the character and parental incapacity of appellant, they also form a sufficient basis for the finding of the court that appellant did not have a realistic plan for the care of the child were she to be awarded custody of the child.

The determination of the court that appellant could not be a capable parent for the child would seem to be the only possible conclusion that could be drawn from a consideration of the behavior of appellant as well as of the conclusions reached by the psychiatric experts, Leo C. Freeman, M.D. and Herman D. Staples, M.D., both of whom had examined appellant shortly before the trial and had had the benefit of a psychological evaluation by Bruce E. Mapes, Ph.D., whose report forms a part of the record. Dr. Freeman concluded that “she was in no position at this time to assume the responsibility of an infant”; that she “presents a serious mental illness which makes her unable to parent”; that “the baby would be endangered if he were placed with the mother [B.C.] in her present marked emotional instability, with little tolerance to frustration and capacity for mature judgment”; and that to place the child in the custody of appellant “would be detrimental to his welfare and expose him to psychological damage.” Dr. Staples, a specialist in child psychiatry, testified that he diagnosed appellant as having a “severe personality disorder of the histrionic type”, that symptoms of such a personality disorder include depression and attempts at suicide as well as psychotic breaks with reality, and that individuals with such a disorder have poor relationships with other individuals and are very self-centered, egocentric and demanding of attention. He concluded that the disorder “would have a very unfortunate effect” upon her potential role as parent of an infant child and that she “would not be able, because of her emotional condition, to be a désirable, effective parent”. He further observed that there was an unfavorable prognosis concerning the benefit to appellant of some form of psychotherapy. While the demonstrated behavior of appellant and the medical testimony form a more than full basis for the conclusion of the court that the parental incapacity of appellant was irremediable, that conclusion becomes insurmountable upon consideration of the statement of the father of appellant, with whom she had had the better parental relationship, that she “lacks the capacity to be a mother for a child at this time because she is not caring, mature responsible and not ready to assume the obligations of a mother. I don’t feel that that child would be fed properly or clothed properly.”

The distinguished President Judge Francis J. Catania in expressing his decision declared:

This court finds that from the evidence adduced at the trial [the natural mother] has demonstrated a repeated and continued emotional pattern throughout her life, of emotional instability which has been manifested by her involvement with drugs and alcohol, her domestic problems, including her temporary commitments to Haverford State Hospital and the Delaware County Children’s Cottage, her sexual promiscuity, her inability to handle her financial affairs in a responsible fashion, and her difficulty in relating and maintaining interpersonal relations.
[Barbara C., the natural mother,] has shown a repeated and continued incapacity to parent, and the causes of said abuse have not been remedied within the meaning of the Adoption Act, 23 Pa.C.S.A., § 2511(a)(2).
Due to the psychiatric and psychological testimony presented and the record of [the natural mother’s] history this court does not believe the causes will be remedied.

The provision of the Adoption Act of 1980 which is the subject of our scrutiny in this appeal, namely, § 2511(a)(2), declares:

(a) General Rule — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

23 P.S. § 2511 (supp.1982-83).

This provision of the Adoption Act of 1980 is identical to § 311(2) of the Adoption Act of 1970. The Supreme Court, in In Re: William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1979), upheld § 311(2), the predecessor to § 2511(a)(2), in the face of constitutional challenge and construed the enactment to require proof of three elements before parental rights may be involuntarily terminated: “(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” Id., 477 Pa. at 345, 383 A.2d at 1239, citing, In Re: Geiger, 459 Pa. 636, 639, 331 A.2d 172, 174 (1975).

The majority focuses upon the second of these requirements and concludes that however delinquent and irresponsible appellant may be, § 2511(a)(2) requires that a parental incapacity be demonstrated vis-a-vis the very child who is the subject of the proceeding:

However inappropriate such behavior might be, we believe that such behavior alone, without a showing of the effect on the child, is an insufficient basis on which to terminate parental rights. (Maj. Opinion at 9.) (emphasis supplied)

This, despite the demonstration by the mother during the period prior to the birth and thereafter of those same characteristics which prove her parental incapacity — an incapacity of such a nature and so deeply seated that, according to the psychiatric prognosis provided to the hearing court, it cannot be remedied. I cannot accept the majority opinion. Rather, I share the view of the hearing judge, when he declared:

The [appellant] has made much of the argument that § 2511(a)(2) should not have been applied in this case as the [appellant] did not have physical custody of the child, and therefore, did not continuously and repeatedly abuse, neglect or refuse to care for the child. In Re Howard, 468 Pa. 71, 360 A.2d 184 (1976), and In Re Folcarelli, 457 A.2d 130, 19 D & C 3d 407 (1982). Basically, [appellant’s] argument would require the child [to] suffer some type of physical, emotional or mental impairment before a parent’s rights could be terminated under this section, even in situations where it is clear that the mental or emotional make-up of the parent is such that there is no possibility that harm to the child would not ensue. The Court does not believe that the legislature ever intended such a harsh and unthinking result. From a careful reading of the Howard case, supra, it appears that while an argument can be made that § 2511(a)(1) & (2) are not interchangeable, the real key to the case is that the incapacity cannot or will not be remedied, (emphasis in original).

The interpretation of the majority that the parental incapacity must be demonstrated vis-a-vis the very child who is the subject of the proceeding will always preclude the hearing court from the entry of a decree of involuntary termination of parental rights in every situation where the natural mother, who has formally consented to an adoption and has surrendered actual custody of the child to the adoptive parents immediately after birth, changes her mind — despite abundant and even overwhelming evidence of her continued incapacity. While a narrative reading of § 2511(a)(2) might permit such an interpretation, the consequences of such a construction are so anomalous that the legislature could not have imposed such a requirement, since such a requirement would compel, despite clear and convincing evidence that the parental capacity cannot be remedied, the return of a child to a parent to await demonstration by the parent upon the child of such incapacity. Could the legislature have possibly intended to place children in such peril? And because Providence may spare a few of such children from a permanent, irreparable harm as a result of such parental incapacity or abuse and neglect, can it be said the legislature would engage in a type of Russian roulette with all of said children?

It is not necessary to respond to such entreaties to conclude the legislature did not intend to impose such a requirement since the legislature itself, in the immediately following sub-section of the Adoption Act, 23 P.S. § 2511(b), provided, inter alia, the following mandate:

The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child, (emphasis supplied).

I consider so clear and certain a directive as determinative of this issue.

The majority hearkens to traditional variations in the standards applicable to visitation, custody and termination cases but the legislature precluded such further liberty in termination cases when it proclaimed that “the needs and welfare of the child” were to be the primary considerations in termination cases. Nor does it seem fit or appropriate to apply the standard for cases of neglectful parents to a biological parent who abandoned — in every de facto sense— her child. Whether the description by the majority of the sacred right of parenthood is viewed as a deft rationale or an inspirational declaration, that description but serves to distract from the command of the statute that such rights are subordinate to the needs and welfare of the child and to divert from the clear and certain conclusion that the behavioral history of appellant hardly summons the vision of an individual to whom the responsibility of parenthood is sacred. However fervently lawyers may address and however carefully judges may analyze the difference between visitation, custody and termination cases and proceed to separately define “the best interests of the child” and “the needs and welfare of the child”, can it be doubted that the layman will not accept such claims of distinction but would insist that this child should be permitted to remain with the adoptive parents? I too so insist. And would so rule.

      . By order dated January 7, 1982, the putative father’s parental rights were terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1). He has never contested this determination and he is not involved in this appeal.

      . In 1982, § 2711 was amended to set forth certain requirements of a valid consent. We note at this point that the consent in the instant case does not fulfill all of those- requirements and, thus, would be invalid were those amendments applicable here. This would not change our reasoning, however. We note it only to underscore the importance of proceeding with caution in cases of this nature.

      . We do not believe this changes the settled law that consent can be revoked within six months and the child will be returned to the natural parent where the only ground for termination of parental rights would be § 2511(a)(1).

      . Any change in the status of "private" adoptions, which have long been recognized as valid, must come from the legislature.

      . It does not appear that the trial court gave too much weight to the expert testimony but rather based its order primarily on the past conduct discussed previously in this opinion.

      . Indeed, one commentator has gone so far as to state that psychiatric judgments have not been shown to be substantially more reliable and valid than “a procedure by which judges flipped coins ” Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693, 743 (1974).

      . “If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter’ ”. Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (Stewart, J., Concurring Opinion).

      . Of course, in this case, as in any custody dispute between a natural parent and a third party:
      ... the parties do not start out even; the parents have a "prima facie right to custody,” which will be forfeited only if “convincing reasons” appear that the child's best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. In re Custody of Hernandez, 249 Pa.Super. 274, 286, 376 A.2d 648, 654.
      See also, In re Desiree B., 304 Pa.Super. 461, 450 A.2d 1003 (1982); Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 444 A.2d 1299 (1982); Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980).

      . The putative father's rights were terminated under § 2511(a)(1), which provides:
      § 2511. Grounds for involuntary termination
      (a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
      (1) the parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
      The putative father has never contested this determination, and is not involved in this appeal. The petition for termination of the parental rights of the natural mother also raised § 2511(a)(1) with respect to her, but appellees abandoned this claim after pleading it in the petition, presumably as a result of the expression by the natural mother of the revocation of her consent to the adoption of the child within six months after custody was surrendered to the adoptive parents.


author: HESTER, Judge:

text:
    473 A.2d 1035
    Regis S. SOBERS, D/B/A West Penn Optical v. SHANNON OPTICAL COMPANY, INC., and David Gallaway, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed March 2, 1984.

      Allan Joseph Opsitnick, Pittsburgh, for appellants.
    Bruce L. Getsinger, Erie, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   HESTER, Judge:

Appellee sought and received an injunction prohibiting appellants Shannon Optical Company, Inc., (hereinafter Shannon) and David Gallaway from engaging in any business which was directly or indirectly competitive with appellee. It is from this injunction and from damages assessed against Shannon and Gallaway individually that appellants have filed this appeal.

Appellee purchased appellants’ business in northwestern Pennsylvania on October 29, 1976. The agreement was executed by Gallaway as President of Shannon and, in exchange for additional consideration, included a covenant by Shannon and by Gallaway individually not to compete with appellee in Erie and eight adjacent counties for a period of five years. Shortly thereafter, appellee discovered that appellants continued to solicit and procure business orders in the aforesaid areas. After repeated requests to appellants to discontinue their business in the restricted locales, appellee filed a complaint in equity seeking to enjoin appellants from further operations. On February 9, 1981, the chancellor entered a decree nisi enjoining Shannon from violating the covenant not to compete and assessing damages against it. Following the dismissal of exceptions, the order was finalized on November 23, 1981. On February 3, 1982, the court en banc entered an order, affirming the decree nisi and amending the final order to award appellee additional damages in the amount of $4,052.46 against Gallaway individually. Appellants thereafter filed this timely appeal.

Initially, appellants assert that the lower court did not have jurisdiction to amend its order of November 23, 1981. Specifically, they contend that the order was amended beyond the allowable time period as permitted by 42 Pa.C.S.A. § 5505. This provision states:

“Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.”

Appellants argue that the above-cited language required any amendment to the order of November 23, 1981, to be made prior to December 23, 1981, that is, 30 days after the entry of the original order. Thus, appellants continue, the lower court lacked jurisdiction to enter an order on February 3, 1982.

Appellants misapprehend the facts. Appellee filed a petition for clarification of the November 23, 1981, order on December 7, 1981; said petition was granted that day. At the same time, the lower court entered an order whereby it stayed all proceedings and specifically tolled all relevant time limitations. Consequently, the lower court’s amendment of its November 23, 1981, order on February 3, 1982, was timely.

Appellants’ contention that the December 7, 1981, order was prohibited by law is devoid of merit. Section 5504(a), upon which appellants rely to support this contention, states that “time limited by this chapter shall not be extended by order, rule, or otherwise.” 42 Pa.C.S.A. § 5504(a). However, a suspension of proceedings and a tolling of time limitations cannot be construed as the equivalent of an extension of time. The trial court’s action in staying the proceedings until appellee’s petitions for clarification was actéd upon was consistent with Pa.R.C.P. 1522, which empowers the court to grant any petition setting forth “a special matter or cause for which such rehearing is sought.” If such a petition is filed no later than the time for taking an appeal, it is timely and will be considered by the court. As seen above, appellee filed his petition within the 30-day appeal period. Thus, the lower court was vested with the authority to stay all proceedings until the above-mentioned petition was duly considered.

Appellants next argue that the lower court erred in dismissing their exceptions wherein they asserted various errors of law and fact. Our scope of review in these instances is limited. The findings of fact of a chancellor will not be set aside unless the error is manifest. Van Schoiack v. United States Liability Ins. Co., 390 Pa. 27, 133 A.2d 509 (1957). “The chancellor’s findings of fact, affirmed by the court en banc, have the effect of a jury verdict and will not be reversed on appeal if adequate evidence is presented to support them and they are not premised on erroneous inferences and deductions or an error of law.” Krosnar v. Schmidt Krosnar McNaughton, 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980), citing Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976).

Mindful' of our limited functions, we conclude that appellants’ exceptions were properly dismissed. In their first exception, appellants contended that the chancellor erred in his finding that certain factual evidence was irrelevant. Appellants attempted to show through testimony that they did not solicit business with appellee’s customers, but rather that the customers approached them after becoming dissatisfied with appellee’s service. The trial judge noted that “this fact is irrelevant to the issue of whether Shannon violated the contract with West Penn.” Appellants also excepted to the lower court’s conclusion that the Uniform Commercial Code was not determinative of what constitutes competition with regard to restrictive covenants.

This court has traditionally held that covenants not to compete which are ancillary to buy-sell agreements are not subject to as stringent a test of reasonableness as that applied to employment contracts. Alabama Binder & Chemical Corp v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 220, 189 A.2d 180, 182 (1963). Restrictive covenants effectuated in conjunction with employment contracts have long been enforced if designed to protect a legitimate business interest of the employer and if reasonably limited in duration and area. Boldt Machinery & Tools, Inc. v. Wallace, 469 Pa. 504, 511, 366 A.2d 902, 906 (1976). Herein, appellants concede that the agreement in question is valid. Thus, we are, in effect, asked to review the chancellor’s interpretation of the covenant.

The lower court found that appellants’ commercial transactions with its former clients violated their promise not to compete with appellee. By characterizing as irrelevant the fact that the customers sought to continue their business relationships with appellants, the chancellor was merely interpreting the covenant in a manner not inconsistent with the holdings of this Court. The covenant language stated:

“the Seller [Shannon] agrees that it will not compete directly or indirectly with the Buyer, nor will it engage in a business which is in any nature similar to the said business being purchased by the Buyer____”

Appellant Gallaway also agreed:

“not compete directly or indirectly in the business which is being sold to the Buyer herein, nor will he engage in said business, directly or indirectly, nor will he act as a representative, agent, or principal in any business which is directly or indirectly competitive or incidental to this business____”

Nowhere did it specifically state that appellants would only restrict their activities with regard to soliciting business. Rather, the covenant language was broad and general in its prohibition against engaging in any business which directly or indirectly competed with appellee. We find no error in the chancellor’s interpretation of this language according to its facial and common sense meaning. The covenant was accorded a reasonable construction in light of the buy-sell agreement and in view of the added consideration received.

Likewise, appellants’ argument concerning the application of the U.C.C. was properly rejected. Pursuant to the U.C.C., a contract for the sale of goods is formed where the offer is accepted. Since the contracts in question were formed in Allegheny County, appellants contend that their business transactions with companies in the nine county area did not constitute a breach of the restrictive covenant. This over-technical translation of the covenant not to compete finds no support in the unambiguous language recited above. Appellants promised not to compete indirectly with appellee. Negotiating a contract in Allegheny County with customers in the restricted area, calling upon those customers, and servicing their employees constitute the exact type of competition which the restrictive covenant was specifically designed to prevent.

Completion of the legal formalities in a nonrestricted county is a mere attempt to circumvent the spirit and obvious intent of this covenant and, in fact, evinces a degree of bad faith by the parties who freely accepted the consideration proffered by appellee in exchange for their promise not to compete. For the above reasons, we find adequate evidence to support the chancellor’s findings.

Finally, as to the issue of damages, appellants contend that the chancellor utilized an improper measure of damages when it awarded appellee the sum of $4,023.46. Appellant Gallaway also alleges error by the lower court for assessing like damages against him individually. Once again, we uphold the chancellor’s decisions.

The lower court awarded damages to appellee based upon the holding of this Court in Ebright v. Shutter, 254 Pa.Super. 509, 386 A.2d 66 (1978). Therein, we held:

“By the very nature of covenants not to compete, damages in the nature of lost profits are difficult to establish with mathematical certainty and only reasonable certainty will be required. Ross v. Houck, 184 Pa.Super. 448, 136 A.2d 160 (1957). Cf. Jones v. Aronson, supra [45 Pa.Super. 148 (1911) ]. Often the reasonable certainty required may be fulfilled by looking to a restitutionary measure of damages. See D. Dobbs, Remedies 150-53 (1973). Proof that the parties attached a particular value to the covenant not to compete for five years was competent evidence of the contractual loss appellees sustained during the time appellants operated a restaurant in competition with them; and, especially in the absence of alternative evidence of appellees’ actual loss, which appellants never offered, the lower court’s award should be affirmed.”

Id. 254 Pa.Super. at 515, 386 A.2d at 69. The covenant not to compete in the Ebright case had been assigned a specific value in the contract for the sale of the business. See Davis v. Buckham, 280 Pa.Super. 106, 421 A.2d 427 (1980). As in that case, the parties in the case at bar agreed that the value of appellants’ promises not to compete was $5,000.00 respectively, totalling $10,000.00.

The chancellor employed the pro rata abatement method utilized in Ebright, where the consideration paid for the covenant was apportioned over the life of the restrictive covenant, and assessed damages based on the time period during which the covenant was breached.

Appellants argue that the Ebright analysis is inapposite to the facts before us because that case involved the continuing operation of a restaurant business in a single location within a restricted area by covenantors not to compete. Herein, appellants assert that the allegedly violative conduct did not occur on each day of the five-year period or throughout the entire geographic area of the covenant. In fact, appellants contend that the chancellor’s refusal to appropriate damages among the nine counties was based upon an erroneous finding that breaches occurred in all of them. Finally, appellants claim that the burden rests upon appellee to prove lost profits, and in the absence of such proof, an award of damages is speculative, improper, and inequitable.

This Court recognized many years ago that ascertaining actual damages for breach of a covenant not to compete is a difficult process. See Stover v. Spielman, 1 Pa.Super. 526 (1896). Consequently, in those cases where it is necessary to award money damages, the amount of any abatement of the purchase price is a. question of fact for the court or jury to resolve. Ebright v. Shutter, supra, and cases cited therein. We find adequate evidence to support the chancellor’s application of the Ebright method, and we will not disturb his assessment of damages on this appeal.

For the foregoing reasons, we also reject appellants’ argument that appellee should prove lost profits. In Ebright, we adopted the pro rata apportionment measures of damages after appellants therein failed to offer evidence of appellee’s lost profits. Confronted with a similar situation, we will adhere to our above-stated conclusion.

Finally, our review of the record convinces us that the chancellor was justified in assessing damages against appellant Gallaway individually in light of his actions as representative and president of Shannon.

In sum, the lower court’s decision is fully supported by adequate evidence and is not premised on erroneous inferences or errors of law.

Order affirmed.

      . The first evidence of Shannon’s breach was a letter of quotation to a company in the restricted area on January 21, 1977. From that date until the decree nisi was entered on February 9, 1981, was the period of breach as computed by the court.

      . The only evidence of lost profits was introduced by appellee, who estimated that the illegal sales by appellants cost him $16,788.21. The uncontroverted evidence of appellee’s lost profits exceeds by a substantial amount the total damages awarded by the lower court. Thus, although appellants are correct that the covenants were not breached in all nine counties, we nonetheless find the chancellor’s award to be warranted by the breaches which did occur.


text:
    473 A.2d 1040
    COMMONWEALTH of Pennsylvania v. Irvin LEATHERBURY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1983.
    Filed March 9, 1984.
    Petition for Allowance of Appeal Denied July 11, 1984.

      Howard S. Kaplan, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Irvin Leatherbury was tried nonjury and convicted of robbery, criminal attempt-theft, simple assault and criminal conspiracy. Post-trial motions were denied, and a sentence of eighteen months to three years imprisonment was imposed for robbery. On direct appeal, Leatherbury contends that the evidence was insufficient to support the conviction, and that his speedy trial rights under Pa.R. Crim.P. 1100 were violated. In addition, he seeks a new trial based upon identification testimony of the victim which he alleges to be infirm because born of a suggestive pre-trial confrontation. Finding no merit in these contentions, we affirm.

“The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime [were] established beyond a reasonable doubt.”

Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983), quoting Commonwealth v. Pitts, 486 Pa. 212, 215, 404 A.2d 1305, 1306 (1979). See also: Commonwealth v. Biggs, 320 Pa.Super. 265, 267, 467 A.2d 31, 32 (1983); Commonwealth v. Todt, 318 Pa.Super. 55, 60-1, 464 A.2d 1226, 1228 (1983); Commonwealth v. Ruffin, 317 Pa.Super. 126, 133, 463 A.2d 1117, 1118-1119 (1983); Commonwealth v. Scarborough, 313 Pa.Super. 521, 525, 460 A.2d 310, 312 (1983).

In the early morning hours of July 15, 1980, seventy-one year old Francis Mahoney was walking along a street in Philadelphia when appellant and another man approached from behind, one on each side, and grabbed his arms. They said, “Give me your wallet and give me your money.” Mahoney “shook them off” and moved away, claiming he didn’t have any money. After a moment or two, the men turned and began to walk away. When Mahoney began cursing at them, however, they turned and again approached him. When a police car appeared, Mahoney flagged it and told Officer Fadgen what had transpired. The police officer called appellant and his companion to the car and arrested them.

Under the Crimes Code in Pennsylvania,

“(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
(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.”

18 Pa.C.S. § 3701(a)(1) (emphasis added).

“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.”

18 Pa.C.S. § 3921(a).

“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.”

18 Pa.C.S. § 901(a).

Here, there was sufficient evidence that appellant, in the course of an attempt to commit a theft, threatened the victim with or put him in fear of immediate bodily injury. When appellant and another young man came up behind this elderly man who was walking alone at 1:15 in the morning, grabbed him by both arms, and demanded his money and his wallet, the trier of the facts could infer that the young men intended to acquire the victim’s money by placing him in fear of immediate bodily injury. Neither the fact that they did not inflict bodily injury nor that they were unsuccessful in obtaining the victim’s money was controlling. An aggressive act intended to place the victim in fear that he was in danger of immediate physical harm was sufficient to elevate an attempted theft to robbery, 18 Pa.C.S. § 3701(a)(1)(iv). Whether the victim was in fact put in fear under such circumstances was not controlling. See: Commonwealth v. Hurd, 268 Pa.Super. 24, 29, 407 A.2d 418, 420 (1979); In re Gonzales, 266 Pa.Super. 468, 470, 405 A.2d 529, 530 (1979); Commonwealth v. Mays, 248 Pa.Super. 318, 321, 375 A.2d 116, 117-118 (1977).

A person is guilty of simple assault if he:

“(3) attempts by physical menace to put another in fear of imminent serious bodily injury.”

18 Pa.C.S. § 2701(a)(3). Although the victim in this case sustained no actual injuries, the circumstances under which he was accosted were sufficient to permit an inference that appellant intended by his conduct to put Mahoney in fear of imminent serious bodily injury. See: Commonwealth v. Stumpo, 306 Pa.Super. 447, 459, 452 A.2d 809, 815-816 (1982). Compare: Commonwealth v. Scott, 246 Pa.Super. 58, 369 A.2d 809 (1976).

Appellant was not deprived of a speedy trial as required by Pa.R.Crim.P. 1100. The criminal complaint was filed on July 15, 1980, thereby giving rise to a mechanical run date of January 12, 1981. Appellant, although subpoenaed, failed to appear for a preliminary hearing on July 23, 1980. He was arrested on a bench warrant the following day. A bench warrant hearing was held on July 28, when the preliminary hearing was rescheduled for August 6, 1980. Appellant again failed to appear. A second bench warrant was issued, but it was withdrawn when it was discovered that appellant had failed to post bail and had remained in custody. A preliminary hearing was thereafter held on September 29, 1981 and, after the matter had been returned to court, an information was filed and appellant was arraigned. The first trial, scheduled for December 8, 1980, was continued because the Commonwealth lacked a witness and, therefore, was not ready to proceed. The second date set for trial was January 12, 1981, but on that date defense counsel was unavailable. Trial was postponed until March 9, 1981. The Commonwealth thereupon filed a petition requesting an extension of time within which to commence trial under Rule 1100. This petition was heard on February 17, when the court ruled that periods of five and fifty-six days were excludable because of the unavailability first of appellant and then his attorney. Pursuant to this ruling, the court added 61 days, and when the 61st day fell on a Saturday, the court computed the revised run date to be March 16.

Appellant contends that the exclusion of five days because of his failure to appear for preliminary hearing was improper because it was based solely on record entries and was not supported by other evidence. There is no merit in this contention. See: Commonwealth v. Harris, 315 Pa. Super. 544, 553, 462 A.2d 725, 729 (1983). The record in this case showed, without dispute, that appellant had failed to appear on July 23, 1980 despite having had notice of his obligation to be present for preliminary hearing. Although the bench warrant was executed the following day and appellant thereafter remained in custody, the proceedings were not resumed until a bench warrant hearing was held on Monday, July 28. At that time a new preliminary hearing date was set for August 6 and new bail set at $1,500. At the very least, the five days intervening between appellant’s failure to appear and the bench warrant hearing following his arrest were excludable.

“[T]he period of excludable days is not necessarily measured by the length of time that a defendant was ‘unavailable.’ Instead, once it is determined that the defendant was unavailable, the critical inquiry is whether actual delay resulted from the defendant’s unavailability. ‘If the “unavailability” results in an actual delay in the proceedings, that delay is automatically excluded.’ ”

Commonwealth v. Colon, 317 Pa.Super. 412, 425, 464 A.2d 388, 395 (1983), quoting Commonwealth v. Millhouse, 470 Pa. 512, 517, 368 A.2d 1273, 1276 (1977). See also: Commonwealth v. Robinson, 498 Pa. 379, 386, 446 A.2d 895, 898-899 (1982); Commonwealth v. Derrick, 322 Pa.Super. 517, 530, 469 A.2d 1111, 1118 (1983); Commonwealth v. Perry, 296 Pa.Super. 359, 362, 442 A.2d 808, 810 (1982); Commonwealth v. Chapman, 271 Pa.Super. 473, 476, 414 A.2d 352, 353 (1979). Accord: Commonwealth v. Manley, 503 Pa. 482, 469 A.2d 1042 (1983).

The events which occurred following the first extension hearing on February 17 were described by Eliot Present, Esquire, an assistant district attorney, during testimony given at the second extension hearing on March 25. He said:

“... this case was originally listed on March 9th, 1981, at which time the complainant was present, and a Motion to Suppress the facts and evidence was litigated. At the conclusion of that Motion to Suppress, after argument from both myself and the Public Defender, Judge Katz held the case under advisement. We — at that time, we realized that I believe the run date of the particular matter was March 16th of 1981. That was on March 9th, 1981. The case was continued until March 17th, 1981 and the Rule at that time was waived ’til March 17th, 1981 voluntarily by the defendant and the Public Defender.
Later that afternoon, the judge informed me that he would not be sitting on March 17th, so, in order for the case to be heard before the run date, it would have to be listed on the 16th. At that time, the complainant had been served for the 17th, so I called him up later that afternoon and informed him that the case would now be listed on the 16th and would he please change his subpoena and come in that Monday. He had originally informed me that he worked ’til eight o’clock in the morning—
He originally informed me that he would prefer it being on a Tuesday, which would be the 17th, because he worked until eight o’clock in the morning that morning on the 16th. I called him and pleaded with him and informed him that the judge wasn’t sitting on the 17th and to come in on the 16th. He agreed to come in.
I believe it was later on that week, or it might have even been on the 9th, but it was some time before the end of the week — it was March 13th. Subsequently, on March 13th, as I was preparing these cases for March 16th, I got a call from Public Defender Jonathan Miller, who was going to be in Courtroom 615 the week of the 16th with myself, and he called specifically to talk to me about the Leatherbury case. He informed me that his colleague, Mr. Laver, was specially assigned to that matter, so that he couldn’t handle it.
He also informed me that Mr. Laver was on emergency assignment to Harbison and Levick on the 16th and there was a good possibility that he would be unavailable that day to come to court. He told me that he was under the impression that Mr. Laver was going to incorporate all of the testimony if the Motion to Suppress was denied, anyway, and that he thought, since Mr. Laver may not show up for court, that I should keep the witness on call.
I, subsequently, called the witness back. I said to him, in view of the fact that this defense attorney may not even be there and also in view of the fact that there was going to be a SEPTA strike, that since he had no other means of transportation — I didn’t think the attorney was even going to be there — I would keep him on call. If we needed him, I would call him that day.
So I got to court on March 16th and early in the morning, Mr. Miller informed me that there was a good possibility Mr. Laver may be able to make it in; they had changed their mind; that he was going to call the courtroom later that morning.
He, subsequently, did call the courtroom and he informed us that he would probably be arriving at about two p.m.
At that time, even though I had an entire list of cases to conduct by myself, I managed to get a phone call to Mr. Mahoney, to tell him that he was — we were going to try and bring him in; that I was going to call the detectives in our office to bring him in and that someone was going to be coming to his house to get him.
I got someone in the court. I believe it was the crier got in touch with the detective and made all the appropriate arrangements to get out and pick this man up and bring him in.
They went out to his house and, apparently, when they rang the doorbell, he had been sleeping at the time. He had worked all night—
Mr. Doyle told me that the complainant called him. Apparently, he heard the doorbell ring. He had been sleeping. By the time he got down to the front door, the detectives, who had a car full of people to take down to court, had left. He had no other way to get to court, so that the case, in fact, was continued to the earliest possible date, and Mr. Laver, at that time, asked the judge to recuse himself, because Judge Katz denied their motion and he didn’t think it would be appropriate for Judge Katz to even hear the trial at that point, so I don’t believe the case could have gone on that day unless we could have found another courtroom, but, in any event, Mr. Laver did show up, asked the judge to recuse himself and the case was continued to the earliest possible date consistent with the court’s business, which was March 26th, 1981.”

After the trial had been assigned to another judge and continued until March 27, the Commonwealth, on March 17, filed a motion to extend the time to accommodate the new trial date. Judge Sporkin heard the extension petition on March 25 and found that the inability to commence trial on March 16 before Judge Katz had not been caused by a Commonwealth failure to exercise due diligence. Therefore, he granted an extension until March 27. Trial was held and completed on March 26.

The test for determining whether due diligence was exercised is one of reasonableness under the circumstances. Commonwealth v. Wroten, 305 Pa.Super. 340, 345, 451 A.2d 678, 681 (1982); Commonwealth v. Long, 288 Pa.Super. 414, 419, 432 A.2d 228, 231 (1981). Under the circumstances here present, we agree with the trial court that the efforts of the Commonwealth to obtain the presence of the complaining witness were reasonable. It is not the role of a court to second-guess the methods used by the prosecutor to obtain the witness’ presence, even when hindsight indicates that a more efficacious method might have been used. Commonwealth v. Tann, 298 Pa.Super. 505, 507-508, 444 A.2d 1297, 1298 (1982); Commonwealth v. Long, supra, 288 Pa.Superior Ct. at 419, 432 A.2d at 231. The failure to subpoena a witness cannot be equated with a lack of due diligence, especially where the witness in question is also the complainant. Commonwealth v. Dancy, 317 Pa.Super. 578, 585, 464 A.2d 473, 477 (1983). Indeed, this Court on prior occasions has suggested that the practice of putting witnesses on call may actually be preferable to issuing a subpoena for them where there is likelihood that a case may be delayed. “It insures that when the defense is actually ready to proceed to trial, the Commonwealth will be ready, unhampered by disillusioned witnesses who have ‘given up’ on the case and stopped showing up for trial listings.” Commonwealth v. Sheppard, 305 Pa.Super. 283, 290, 451 A.2d 533, 536 (1982). See also: Commonwealth v. Daniels, 321 Pa.Super. 486, 490, 468 A.2d 814, 815-16 (1983). The trial court did not err in granting the Commonwealth’s request for an extension.

Finally, appellant contends that Mahoney should not have been permitted to testify that it was appellant who accosted him on July 15 because his identification testimony was the product of a suggestive pre-trial confrontation. Mahoney, who was unable to identify appellant in a lineup conducted shortly after the incident, readily identified appellant at the preliminary hearing as one of his assailants. Appellant argues that this identification was the product of suggestiveness inherent in the preliminary hearing setting, at which the identity of the accused was obvious. He contends that the victim’s in-court identification testimony, therefore, should have been suppressed, both because the victim had failed to identify him during a pre-preliminary hearing lineup and also because of the inherently suggestive nature of the preliminary hearing.

In determining the admissibility of identification testimony, the inquiry must be whether, under the totality of the circumstances, the identification was reliable. Commonwealth v. Silver, 499 Pa. 228, 235, 452 A.2d 1328, 1331 (1982); Commonwealth v. Sample, 321 Pa.Super. 457, 461, 468 A.2d 799, 801 (1983); Commonwealth v. Johnson, 301 Pa.Super. 13, 15, 446 A.2d 1311, 1312, modified, 499 Pa. 380, 453 A.2d 922 (1982). Where the circumstances demonstrate an independent basis for an identification, even an impermissibly suggestive pre-trial procedure will not bar an in-court identification. Commonwealth v. Derrick, supra, 322 Pa.Superior Ct. at 534, 469 A.2d at 1120; Commonwealth v. Sample, supra, 321 Pa.Superior Ct. at 462, 468 A.2d at 801; Commonwealth v. Thompkins, 311 Pa.Super. 357, 363, 457 A.2d 925, 928 (1983); Commonwealth v. Spiegel, 311 Pa.Super. 135, 144, 457 A.2d 531, 535-536 (1983). The factors to be considered in determining sufficient reliability to permit in-court identification testimony include “(1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the [out-of-court] identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.” Commonwealth v. Laurenson, 323 Pa.Super. 46, 59-60, 470 A.2d 122, 128 (1983), quoting Commonwealth v. Slaughter, 482 Pa. 538, 546, 394 A.2d 453, 457 (1978). The most important of these factors is the opportunity of the witness to view the actor at the time of the crime. Commonwealth v. Sample, supra, 321 Pa.Superior Ct. at 462, 468 A.2d at 801; Commonwealth v. Spiegel, supra, 311 Pa.Superior Ct. at 145, 457 A.2d at 536; Commonwealth v. Davis, 293 Pa.Super. 447, 452, 439 A.2d 195, 198 (1981). Here, the victim was face to face with appellant for “five to ten minutes in good light.” This was sufficient to permit a finding by the suppression court that an independent basis existed for the victim’s in-court identification.

The victim’s prior failure to identify appellant did not render his identification testimony inadmissible per se. In Commonwealth v. Zabala, 303 Pa.Super. 72, 449 A.2d 583 (1982), this Court held:

“The fact that the witnesses could not identify appellant in a photographic array does not render their in-court identifications any less admissible. The fact that they could not identify appellant earlier is relevant only to the weight and credibility of their testimony.”

Id., 303 Pa.Superior Ct. at 79, 449 A.2d at 587 (citations omitted). See also: Commonwealth v. Hurd, supra.

It is a significant fact in this case that appellant was arrested at the scene of the alleged robbery by a policeman who saw him back away from the complainant. When the victim pointed out the appellant and accused him of assaulting him, appellant was present on the scene and was immediately arrested. A subsequent suggestiveness inherent in a preliminary hearing was not likely to have produced a case of mis-identification under these circumstances.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. §§ 901, 3921.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 903.

      . Serious bodily injury is defined as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S. § 2301.

      . January 11 was the 180th day, but it was a Sunday.

      . Although appellant again failed to appear for preliminary hearing on August 6, no additional days were excluded because it was determined that he had been in custody, having failed to meet bail.

      . Appellant argues that he did not waive Rule 1100. The record is clear, however, that appellant made an oral, informed waiver and, in addition, executed a written waiver of Rule 1100.

      . This evidence was objected to as hearsay, but the hearing court overruled the objection and received the evidence. This ruling and the alleged hearsay evidence have not been challenged on appeal. The objection to the evidence, therefore, has been waived. See: Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981).