author: CIRILLO, President Judge:

text:
    563 A.2d 139
    CENTRAL DELAWARE COUNTY AUTHORITY, Appellant, v. GREYHOUND CORPORATION, the Boeing Company, Philadelphia Electric Company, Adwin Realty Company, Baldwin Tower Corporation, Century Warehouse, Inc., Sidney M. Baer and Belle K. Baer, H/W, Cathryn Scott, Kathryn Malizia, Exxon Corporation, Bell of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued May 18, 1989.
    Filed Aug. 8, 1989.

      Edward C. Toole, Philadelphia, for appellant.
    Kurt Denke, Philadelphia, for Greyhound Corp., appellee.
    Richard C. Biedrzycki, Philadelphia, for Exxon Corp., appellee.
    Harriet F. Withstandley, Philadelphia, for Bell of Pennsylvania, appellee.

      Before CIRILLO, President Judge, and ROWLEY and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment entered by the Court of Common Pleas of Delaware County quieting title in the defendants, the successors and assigns of the Baldwin Locomotive Works. Greyhound Corporation is the only defendant to have filed a brief in this court. The appellant, Central Delaware County Authority [the Authority], purchased eleven acres of land from Baldwin in 1941, and another three acres in 1950. The deeds from those transactions include the following language:

It is specifically covenanted, stipulated and agreed between the parties hereto that the said tract of land while in the ownership and possession of the said Central Delaware County Authority and its successors, shall be kept available for and shall be used only for public purposes, by the said Central Delaware County Authority and its successors or any other public instrumentality or other agency which may hereafter acquire title to the same. In the event that at any time hereafter said use shall be abandoned so that the said tract shall cease to be used for said public purposes, then and in such event The Baldwin Locomotive Works, its successors and assigns, shall have the right to repurchase, retake, and reacquire the same upon the payment, either to the Central Delaware County Authority if owner thereof, or to any successor in right thereto, or to the municipalities for which the said vendee or its successors shall be acting, the sum of fifty-five hundred dollars ($5,500) above mentioned and herein provided to be paid therefore; or in the event of dispute, the said sum may be paid into Court in any appropriate proceeding for the benefit of any and all parties entitled to the same. In any such case, vendee shall have the right to remove all improvements.
PROVIDED, HOWEVER, that if the Baldwin Locomotive Works does not pay the sum of fifty-five hundred dollars ($5,500) to the said Authority, or otherwise as above provided, within six months after the date when the Authority or its successors in title abandon the said property for public purposes, or the date when notified by the Authority of its intention to abandon the property, then and in such event this covenant shall become void and of no effect.

The Authority is still in possession of the land, and maintains the sewage treatment plant it had erected there. The plant had remained in operation for some twenty-six years; at this time, however, sewage which had been treated at that site is piped elsewhere for treatment. The Authority now wishes to either sell the property, or find an alternate use for it. It filed suit in 1983 requesting a judgment from the court as to the validity of the above provisions in the deeds. The Authority argued that those provisions violated the rule against perpetuities and that they were void as unreasonable restraints on the alienation of the property in question. The rule against perpetuities claim was submitted to the Honorable Frank T. Hazel for disposition, while testimony was taken by the Honorable Clement J. McGovern on the Authority’s restraint on alienation claim. Judge Hazel found that the provisions in question did not violate the rule against perpetuities. Judge McGovern found that the restrictions did not constitute a restraint on alienation.

The Authority filed post-trial motions concerning both issues; these motions were denied by Judge McGovern. It then praeciped for the entry of judgment, and appealed from the entry of that judgment. Three issues are raised on appeal to this court:

(1) Whether the Court below erred in concluding that the Rule Against Perpetuities did not render the restrictive covenants contained in Plaintiffs 1941 and 1950 deeds null and void?
(2) Whether the Court below erred in concluding that the covenants are not unreasonable restraints on alienation?
(3) Whether the Court below erred in failing to consider the testimony of Plaintiffs expert witness and related exhibits on marketability and valuation?

The Authority argues that the rule against perpetuities should render the provisions in the deeds about which it complains void. It contends that the trial court erred in finding that the estate conveyed to it was a fee simple subject to a condition subsequent, and that the grantor’s assigns thereby retained a right of reentry also known as a power of termination, an interest which is excepted from the rule against perpetuities. The Authority argues that the interest controlled by Greyhound is a repurchase option, and is therefore subject to and void under the rule against perpetuities.

A fee simple subject to a condition subsequent arises where a provision in an instrument provides that upon the happening of a certain event, the grantor has the right and power to terminate the conveyed estate. Emrick v. Bethlehem Township, 506 Pa. 372, 378, 485 A.2d 736, 739 (1984); Stolarik v. Stolarik, 241 Pa.Super. 498, 506, 363 A.2d 793, 797 (1976). It differs from a fee simple determinable estate which automatically ends upon the happening of a stated condition; the fee simple subject to a condition subsequent requires an action of the grantor to retake the estate upon the happening of the stated condition. Higbee Corporation v. Kennedy, 286 Pa.Super. 101, 106-107, 428 A.2d 592, 595 (1981); Stolarik, 241 Pa.Super. at 506, 363 A.2d at 797. Of these two estates, the language in the deeds in question more clearly creates a fee simple estate subject to a condition subsequent. The grantor, its successors, or assigns must do an act to terminate the estate; the estate does not merely revert to the grantor when the estate is no longer used for public purposes. However, that act involves the payment of a purchase price, and so requires further consideration on our part in light of the Authority’s argument that the interest was merely a repurchase option.

The trial court found that repayment of the purchase price was merely part of the action required to terminate the estate, and that, therefore, the provision did not create a repurchase option. This court is not bound by the trial court’s conclusions of law. We may draw our own conclusions from the facts as established. Minteer v. Wolfe, 300 Pa.Super. 234, 238, 446 A.2d 316, 318 (1982). With this in mind, we must consider the deeds in question to determine whether or not the trial court erred in finding that the provisions in question created a power of termination. The pertinent language in the deed provisions states:

In the event that at any time hereafter said use shall be abandoned so that the said tract shall cease to be used for said public purposes, then and in such event The Baldwin Locomotive Works, its successors and assigns, shall have the right to repurchase, retake, and reacquire the same upon the payment ... [of] the sum of fifty-five hundred dollars ($5,500) above mentioned and herein provided to be paid therefore____

(emphasis added). The trial court held that “the mere inclusion of terms pursuant to which reentry is accomplished will not negate the intent of the parties and this Court concluded that such intention was to reserve in the Grantor a vested right of reverter upon the occurrence of the condition subsequent.”

We note, however, Comment c to section 394 of the Restatement of Property (1944):

If the language and conveyance of an estate in fee simple are otherwise reasonably susceptible of two constructions, under one of which it creates either a possibility of reverter or power of termination, and under the other of which it creates an option to repurchase, the latter of the two constructions is preferred. The fact that the exercise of the reserved privilege requires the parting with of money or other consideration by the reserving conveyor is sufficiently indicative of the intent of the conveyor to create an option____ The finding of the option, under these facts, furthers the protective policy which underlies the rule against perpetuities, and is in accord with the general constructional preference for covenants rather than conditions.

4 Restatement of Property § 394, comment c (1944). See also Sapper v. Mathers, 286 Pa. 364, 367, 133 A. 565, 566 (1926) (policy of law is to keep land free from impediments, law endeavors to strip devises and grants of restrictive covenants); 28 Am.Jur.2d § 140 (1966) (conditions tending to destroy estates such as conditions subsequent are not favored in law; no provision will be held to create such a condition if language will bear any other reasonable interpretation).

While the language in the deeds certainly can be read as creating a fee simple subject to a condition subsequent— the condition being the cessation of public use which would permit the assignees or successors of the grantor to exercise its power of termination in some fashion — the language also states that the grantor, its successors, or assigns shall have the right to repurchase and reacquire the property upon the occurrence of that condition. Under the restatement provision quoted above, this language creates a repurchase option. This has been the result reached by other jurisdictions considering similar deed provisions. See Bond v. Kennedy, 213 Ark. 758, 212 S.W.2d 336 (1948) (clause stating that when ceased to be used for school purposes the grantor or anyone else owning land could have land at specific price of $60 was not reverting clause, but was option clause permitting grantor to repurchase land upon the happening of a contingency); Alamo School District v. Jones, 182 Cal.App.2d 180, 6 Cal.Rptr. 272 (1960) (provision stating that if land was ever abandoned for school purposes grantor had right to repurchase for consideration mentioned found to be contingent option to repurchase, not right of entry for condition broken); Gearhart v. West Lumber Co., 212 Ga. 25, 90 S.E.2d 10 (1955) (provision stating that property will be used for school purposes only, and if provision is violated, grantor has right to repurchase did not create conditional estate dependant on a condition subsequent); Bates v. Bates, 314 Ky. 789, 236 S.W.2d 943 (1950) (provision stating that the grantor would have the land at the same price when it ceased to be used as school house property not possibility of reverter but option personal to grantor); Emerson v. King, 118 N.H. 684, 394 A.2d 51 (1978) (clause which provided that if grantees chose to sell or convey interest in property, or upon death of the survivor of the two, grantor would have option to repurchase created a fee simple defeasible subject to repurchase provisions); Gange v. Hayes, 193 Or. 51, 237 P.2d 196 (1951) (provision stating that if lumber company ceased operations for period of twenty-four consecutive months, grantor, successors, or assigns could demand a warranty deed for the property upon payment of original purchase price less annual rental for time company possessed land, was option to repurchase rather than reversionary interest).

Having determined that the provision in question creates an option to repurchase, we must then determine whether the law of this Commonwealth requires the rule against perpetuities to be applied to this repurchase option. The Restatement of Property is clear that an option to repurchase reserved in favor of the conveyor and unlimited as to time is subject to the rule against perpetuities. 4 Restatement of Property § 394. Greyhound, however, argues that in Pennsylvania, options to repurchase property are contractual obligations, and therefore not subject to the rule.

We note that under section 401 of the Restatement of Property, a transaction which is exclusively contractual is not subject to the rule. Comment b defines “exclusively contractual” as a transaction which “concerns no specific land____” 4 Restatement of Property § 401, comment b. Although section 401 seems to contemplate that options such as the one presented to us here are within the rule against perpetuities — the repurchase option here involves a right to repurchase specific land — there are other pertinent considerations in this case which affect our determination of the issue. The supreme court of this Commonwealth, in a similar case, has held that Pennsylvania law does not recognize a blanket condemnation of all remote options. Southeastern Pennsylvania Transit Authority v. Philadelphia Transportation Co., 426 Pa. 377, 385, 233 A.2d 15, 19 (1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1259, 20 L.Ed.2d 161 (1968).

In Southeastern Pennsylvania Transit Authority v. Philadelphia Transportation Co., supra, the supreme court discussed a deed provision conveying property from the City of Philadelphia to the Philadelphia Transportation Company (PTC). In 1907, PTC leased the property from the City, and the City reserved the right to repurchase the property “ ‘upon July 1st, 1957, or upon the first day of any July thereafter by serving six month’s notice ...,’” SEPTA, 426 Pa. at 383, 233 A.2d at 15, and upon the payment of a specified amount. After several decades of what the supreme court termed the “financial misfortune” of PTC, the agreement was amended in certain parts, but the repurchase option remained unchanged. Southeastern Pennsylvania Transportation Authority (SEPTA), as the City’s assignee, moved to purchase the property from PTC pursuant to the agreement, and a declaratory action was brought based on the contention that the option agreement violated the rule against perpetuities.

The supreme court, in considering the case, indicated that it found the right reserved by the City to be purely contractual, because it gave the City no right to PTC’s property, until the option was exercised. Id., 426 Pa. at 385, 233 A.2d at 19. This finding was not important to the supreme court’s disposition of the case, however. Instead, the court rested its decision upon its determination that the right to the free and unfettered use of property was outweighed by considerations of public policy:

The historical purpose of the rule against perpetuities was to destroy serious hindrances to the beneficial and prosperous use of property____ In this case, the danger of fettering the free use of property is outweighed by considerations of public concern and welfare.

Id.

The SEPTA court found these public policy considerations to be the difference between the case before it, and the case of Barton v. Thaw, 246 Pa. 348, 92 A. 312 (1914). See SEPTA, 426 Pa. at 385, 233 A.2d at 19 (citing Barton, 246 Pa. at 364, 92 A. at 316). In Barton, the supreme court held that a repurchase option was void under the rule, affirming the opinion of the trial court with approval. The trial court there stated:

We cannot conceive of a more violent breach of the rule against perpetuities. Such an impress on land ought not to be sustained, and it cannot be. It isolates the property. It takes it out of commerce. It removes it from the market. It halts improvements. It prevents the land from answering to the needs of growing communities. No homes can be built or towns laid out on land so encumbered, because the land always remains subject to be taken under the option. It is not a matter which affects the rights of individuals only. The welfare of the public is at stake. It is contrary to the well settled public policy of the state that such an option or right to purchase land should be held to be good. It was for the express purpose of destroying such serious hindrances to material and social prosperity and progress that the rule against perpetuities was brought forth.

Barton, 246 Pa. at 364, 92 A. at 316. In Barton, then, public interest required a strict application of the rule; failure to find the repurchase option void in that case would have created restraints on the alienation of the property with no benefit to the public.

We agree with the supreme court in SEPTA v. PTC, supra, and the trial court in the instant case, that were we to find the rule against perpetuities applicable to this particular option contract, we would be creating a climate in which grantors would not freely give their properties for public use. The public benefits from our determination not to apply the rule here because the Authority will either find another public use for the property, or sell it to some entity who can. The trial court pointed out, and we agree, that “[t]he public is [best] served by governmental capacity of obtaining, without expense, real estate upon which a public use can be conducted.” If no public use continues on the property in question, then, as the grantor wished, the property may be purchased by its assigns and successors. As the trial court states, “Such is an impetus to private and corporate largesse [to allow] public use.” We find, therefore, that the policies and considerations behind the rule against perpetuities are not served by its application in this case.

The Authority next argues that the provisions in the deed requiring that the property be used for public use only are invalid as unreasonable restraints on alienation. The Authority argues that should it wish to sell the property, the group of potential buyers for a property limited to public use is smaller than that group of potential buyers for a property which can be put to any use whatsoever. Therefore, the Authority argues that the provisions directly as well as indirectly affect the alienation of the property.

A restriction upon the use of property does not fit into the definition of restraints on alienation set out by section 404 of the Restatement of Property. Section 404 indicates that because a use restriction is not violated by the making of a later conveyance, it is not within the definition of a restraint on alienation. See 4 Restatement of Property, Introductory Note to Part II, at 2375. The Restatement does point out, however, that a use restriction may limit the likelihood that a property interest will be alienated. Id. Section 437, entitled “General Rule Determining Validity of Other Restraints,” states that restraints on the use of property are “normally valid.” Id. at § 437, comment b. “Unless contrary to the general welfare, or violative of some rule of law, a given restraint is valid____” Id. at comment a. In fact, the provisions in question here are intended to benefit the public welfare. Under the Restatement, then, these restrictions on the use of the property should not be considered restraints on alienation.

The Authority, however, would have us adopt the reasoning of the Eighth Circuit Court of Appeals in Falls City v. Missouri Pacific Railroad Co., 453 F.2d 771 (8th Cir.1971). That court held that although most use restrictions are valid, if they affect marketability by unreasonably limiting the class of persons to whom the property may be conveyed, they are void and unenforceable. Id. at 773-74. Further, the court stated that because the grantor had limited the use of the land to use as a divisional headquarters, it had, in practical effect, created a restraint on alienation: “Thus, even though the conditional restraint is couched in terms of marketability of property ..., it unreasonably affects the market-ability of the land adversely by completely restricting alienation. It is therefore void and unenforceable____” Id. at 774. The Authority further argues that Pennsylvania law follows this rationale. In Grossman v. Hill, 384 Pa. 590, 122 A.2d 69 (1956), our supreme court found that the ostensible “use” restriction in that case impermissibly restrained alienation because the restriction provided that a ten foot portion of one lot could only be used in connection with another lot. Id., 384 Pa. at 596, 122 A.2d at 72. The court pointed out that finding that the provision was a restriction on use rather than on alienation would “enable any grantor to restrain the alienation of property in defiance of the rule by the mere device of limiting its “use” to the grantee and his heirs forever, or, as here, attaching its “use” in perpetuity to another designated property.” Id. Grossman, however, was overruled on procedural grounds. See In re Mather’s Estate, 410 Pa. 361, 371 n. 6, 189 A.2d 586, 591 n. 6 (1963); Reading Co. v. Willow Development Co., 407 Pa. 469, 471, 181 A.2d 288, 289 (1962).

In any case, we find that the situation before us differs from that in either Grossman or Falls City. In both of these cases, alienation was completely blocked by the deed restrictions on use. While the restriction in Grossman was called a restriction on use, in fact, it was an attempt to prevent alienation of the land. Here, the property is not completely unalienable. Rather, the group of entities to whom it may be conveyed is small. The question which must be answered is whether or not that group is unreasonably small. We think that it is not. It was the intent of the grantor to provide land for public use.

Further, the restriction in the present case clearly affects use only. The land may be alienated even if the Authority cannot find a buyer who will put it to public use. In that event, the repurchase option will come into effect and Greyhound, or any of the other of the successors or assignees of the grantor, may buy the property under the terms of the deed within six months. If they decline to do so, the restriction is nullified and the property may be sold by the Authority regardless of the use to which it will be put. If the Authority is not satisfied with the purchase price contained in the deed, it has only itself to blame. It did not have to accept the terms. If, on the other hand, Greyhound or another entity does exercise that option, the restriction has been abrogated. The successors and assigns of Baldwin Locomotive Works may then resell to anyone they choose for any purpose, if they in fact choose to do so. We do not see that this restriction works any restraint on alienation.

The last issue raised by the Authority concerns the admissibility of evidence of marketability and valuation. The trial court ruled the evidence was irrelevant. An appellate court will reverse the ruling of the trial court only for an abuse of discretion or error of law. Concorde Investments Inc., v. Gallagher, 345 Pa.Super. 49, 57-58, 497 A.2d 637, 641 (1985). Moreover, as the trial court noted, whether or not the evidence is considered the result will remain the same. We agree, and therefore find this argument merit-less. .

Affirmed.

      . This language is from the 1941 deed. The 1950 deed is substantially similar, with the exclusion of the phrase, “by the said Central Delaware County Authority and its successors or any other public instrumentality which may hereinafter acquire title to the same," found in the first paragraph above. Further, repurchase of the three acres conveyed in the 1950 deed is conditioned upon payment of $2970.00.

      . Greyhound claims that this appeal was untimely, arguing that the Authority should have appealed from the December 21st "order,” filed by Judge McGovern, rather than filing post-trial motions. Although that finding was captioned as an order, it was couched in terms of a judgment:
      AND NOW, this 21st day of December, 1987, it is hereby ORDERED, and DECREED, and ADJUDGED that Judgment is entered on behalf of Defendants and against Plaintiff. Restrictive covenants in the 1941 and 1950 deeds are not unreasonable restraints on alienation, and are valid and binding.
      The Plaintiff shall be forever barred from asserting any right, lien, title or interest in land inconsistent with this judgment.
      An examination of the docket discloses no notation that this document was considered a final judgment. In fact, it is not noted on the docket at all. Notice of the document is included in the record; it designates the document filed as an order, rather than as a judgment. Final judgment is recorded on the docket as having been entered on May 23, 1988.
      We are of the opinion that the “order" in question was mischaracterized as a “judgment" by the trial court, and that it was proper for the Authority to file post-trial motions, rather than taking an immediate appeal. In Shonberger v. Oswell, 365 Pa.Super. 481, 530 A.2d 112 (1987), the trial court entered no verdict against the appellants, instead, that court labelled its findings "judgment.” The trial court then heard post-trial motions, and denied them, entering a final judgment. This court held that because the erroneously labelled judgment was entered before the filing and denial of post-trial motions, its entry was premature and void, and so did not begin the appeal period. Id., 365 Pa.Superior Ct. at 483 n. 1, 530 A.2d at 113 n. 1. The situation is sufficiently similar to the instant case to be controlling.

      . The rule against perpetuities states that an interest must vest, if it vests at all, within twenty-one years of a life in being. In re Lewis' Estate, 349 Pa. 571, 573, 37 A.2d 482, 484 (1944). The purpose behind the rule is to avoid the postponement of the vesting of an estate or interest beyond a set period in order to protect free alienability of land. Barton v. Thaw, 246 Pa. 348, 352-354, 92 A. 312, 313-314 (1914). “[I]f an unlimited time were allowed for the creation of these future and indestructible estates the alienation of lands might be henceforward forever prevented by the innumerable future estates which the caprice or vanity of some owners would prompt them to create.” Id., 246 Pa. at 355, 92 A. at 314.

      . The conditional language which indicates that one estate or the other has been created, see Stolarik, 241 Pa.Super. at 506, 363 A.2d at 797, (e.g., "if,” "upon the condition that,” “provided that," a stated condition occurs, then the estate created, "shall be null and void," or "shall result back”), is present here.

      . Greyhound also raises an estoppel argument here, claiming that the Authority is estopped from asserting the rule here because it accepted the provisions in the deed in order to obtain the conveyance of the land at a low cost. Because we find that public policy considerations militate against applying the rule against perpetuities to options for repurchase of land granted for public use, we see no need to address this argument.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    563 A.2d 146
    Sandra HATTER and Michael Hatter, h/w, Appellants, v. Dr. Marc LANDSBERG.
    Superior Court of Pennsylvania.
    Argued April 18, 1989.
    Filed Aug. 16, 1989.

      Thaddeus J. Bartkowski, II, Philadelphia, for appellants.
    Leslie A. Miller, Philadelphia, for appellee.
    Robert B. Hoffman, Harrisburg, filed a brief on behalf of amicus curiae.

      Before CIRILLO, President Judge, and CAVANAUGH and HESTER, JJ.
   HESTER, Judge:

Sandra and Michael Hatter appeal from the order entered by the Philadelphia Court of Common Pleas on June 9,1988, granting summary judgment to appellee, Dr. Marc Lands-berg, and dismissing their complaint. Appellants contend that the trial court erred in dismissing their complaint by misconstruing and misapplying 42 Pa.C.S. § 8305, enacted March 25,1988, which abolishes causes of action for wrongful birth and wrongful life, and by not permitting them to amend their complaint. We reverse.

Appellee initially argues that we should quash this appeal pursuant to Pa.R.A.P. 2101 for appellants’ failure to include a statement of jurisdiction and the text of the order appealed from in disregard of Pa.R.A.P. §§ 2111, 2114 and 2115. We exercise our discretion by declining to take such action in view of the seriousness of the issues involved and since effective appellate review is not precluded by these deficiencies. See Bolus v. United Penn Bank, 363 Pa.Super. 247, 267 n. 2, 525 A.2d 1215, 1225 n. 2 (1987); Commonwealth v. Rose, 265 Pa.Super. 159, 166 n. 6, 401 A.2d 1148, 1152 n. 6 (1979); Pa.R.A.P. 105.

We now turn to the merits. A motion for summary judgment is governed by Pa.R.C.P. 1035 which, in pertinent part, provides:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Pennsylvania Supreme Court recently stated:

[I]n considering a motion for summary judgment, the lower court must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and any affidavits filed by the parties. From this thorough examination the lower court will determine the question of whether there is a genuine issue as to any material fact. On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists. All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Goodrich-Amram, [2d], § 1035(b): 3, p. 432.

Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 175-76, 553 A.2d 900, 903 (1989); see also Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970 (1989).

The record viewed in this light reveals the following facts. On July 7, 1980, appellee performed a tubal ligation by a laparscopic procedure on appellant to prevent her from conceiving. In December, 1982, appellant wife’s family physician informed her that she was pregnant. She delivered by Cesarian section on October 1, 1983. During the course of this delivery, her obstestrician observed that one of her fallopian tubes showed no evidence of tubal ligation. He would testify at trial that this indicated to him that appellee negligently performed the tubal ligation. Appellant filed the present wrongful conception action seeking damages for pre and post-natal expenses, pain and suffering, and emotional distress for both herself and her husband. A count on behalf of the child in the form of a wrongful life action was not included.

42 Pa.C.S. § 8305 (1988) provides:

(A) Wrongful Birth. — There shall be no cause of action or award of damages on behalf of any person based on a claim thát, but for an act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to provide a defense against any proceeding, charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known as The Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners.
(B) Wrongful Life. — There shall be no cause of action on behalf of any person based on a claim of that person, that, but for an action or omission of the defendant, the person would not have been conceived or once conceived, would or should have been aborted.

Following the completion of discovery, but prior to trial, appellee filed a motion for summary judgment, alleging that the recent enactment of 42 Pa.C.S. § 8305 barred appellants’ suit as a matter of law. The trial court granted appellee’s motion and stated that summary judgment would have been proper even in the absence of the statute based on current case authority.

It is clear that 42 Pa.C.S. § 8305(b) precludes only an action by a child or his representative for the child’s own wrongful life resulting from a negligently performed contraceptive procedure or abortion. Thus, 8305(b) does not bar this action by appellants for their own expenses and pain and suffering resulting from an improperly performed contraceptive procedure. Accordingly, we must determine whether the trial court was correct in determining that § 8305(a) bars Such an action.

Appellants argue that the phrase “once conceived” in section 8305(a) demonstrates the limited scope of that section and does not bar recovery for costs resulting from negligence occurring prior to conception. Instead, they contend, Section a is directed solely at prohibiting suits for the nonperformance or negligent performance of an abortion. Appellants argue that the legislative history of 42 Pa.C.S. § 8305 clearly indicates that the bar against “wrongful birth” in § 8305(a) does not apply to an action for “wrongful conception,” which is an action seeking damages for negligence occurring prior to conception. In support of this argument, appellants cite the following statements by the sponsors of the law in debate in both the Senate and the House on the senate bill prior to its enactment:

Senator Rocks: It is not the objective of this legislation to provide immunity to any doctor who does harm to a pregnant woman or to her child, but, rather — and this is the intent of what the wrongful life and wrongful birth legislation is about — to stop a court-engendered policy which views the birth of a child, be that child handicapped or otherwise, a damaging event for which someone should be punished in order to prevent this quality of life ethic from becoming so persuasive that a handicapped child is routinely considered better off dead and of less value than what we would call “a normal child” and to prevent the practice of medicine, especially obstetrics and gynecology, from becoming coerced into accepting eugenic abortion as a condition for avoiding what are particularly wrongful birth lawsuits____ As a matter of public policy, the failure to kill an unborn child, handicapped or normal, should never constitute a wrong____

Pa. Senate Leg. 1961 (March 22, 1988).

Senator Rocks: [0]n the facts of the legislation in front of us ... the physician described with the so-called botched or fully negligent sterilization, nothing in this legislation would prevent an action fully calling into account the negligence of that physician. In fact, that suit would be on the grounds of wrongful conception. It could be brought today and should be brought tomorrow. Nothing in the legislation in front of us deals with that. In that hypothetical situation, while I would hope it would not happen, that physician would be fully liable to the fullest extent of the court’s decision for both his or her negligence and the financial damages involved.

Pa. Senate Leg. 1963 (March 22, 1988).

Similar questions and statements were made in the House:

MR. McHALE. Thank you, Mr. Speaker, Mr. Speaker, I have a number of questions related to very specific instances that might arise under the terms of this amendment.
My first question relates to a negligent procedure performed by a doctor prior to conception. And specifically, if a doctor were to negligently perform a contraceptive procedure — for instance, a tubal ligation that was improperly performed — and thereafter the patient were to become pregnant and subsequently gave birth to a child, would your amendment, if adopted, have any impact upon a possible cause of action that could be brought against that physician for the negligent performance of that medical procedure?
MR. FRIEND: The answer to that is no, Mr. Speaker. This would not. In fact, if you look at the language — we were very careful about this — under “Wrongful birth,” we say, “there shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born.” So it would in no way bar a wrongful conception action.

Pa. House Leg. 307-308 (February 24, 1988).

Appellee counters that it is improper for us to consider the legislative history for this statute since the language of the statute is clear and unambiguous in precluding any damages resulting from the birth of a child, and the remarks of individual legislators in debate represent only their view and not that of the proposing or enacting body. See Martin’s Estate, 365 Pa. 280, 74 A.2d 120 (1950); National Transit Co. v. Boardman, 328 Pa. 450, 197 A. 239 (1938); Tarlo’s Estate, 315 Pa. 321, 172 A. 139 (1934); Zemprelli v. Thornburg, 47 Pa.Cmwlth. 43, 407 A.2d 102 (1979); see also 1 Pa.C.S. § 1939. We disagree.

Legislative history is relevant in construing a statute when the statute is unclear. See 1 Pa.C.S. § 1939. 42 Pa.C.S. § 8305(a) states that it bars an action by any person on the basis that a person should not have been bom. (Emphasis added.) It is unclear from this language whether or not the term “wrongful birth” includes actions for negligent conception, since the damages from negligent conception constitute the expenses and suffering resulting from birth and, thus, also might be construed to fall within the bar. Consequently, we deem the statutory language unclear, and in order to construe it must proceed to ascertain the reason why the act was necessary, the object to be obtained by its passage, the circumstances under which it was enacted, and the mischief that it remedied. 1 Pa.C.S. § 1921(c); Coretsky v. Board of Comr’s of Butter, 520 Pa. 513, 555 A.2d 72 (1989).

Our review of the legislative history indicates that the legislature primarily was concerned with eliminating suits brought by children or their parents in an effort to recover damages for the failure to abort a child or negligently aborting a child. The legislature’s expressed overriding concern was to prevent law suits leading to eugenic abortions of deformed or unwanted children. The legislators also specifically state that this legislation was not intended to bar cases of “wrongful conception” resulting from negligently performed sterilization. We therefore find that the trial court improperly granted appellee summary judgment on the basis of 42 Pa.C.S. § 8305(a).

The trial court also indicated that even in the absence of 42 Pa.C.S. § 8305(a), its decision would be the same based on current case authorities. This also was incorrect. On analogous facts involving an alleged improper sterilization and birth, the supreme court held that the plaintiff was entitled to relief under basic contract and tort theories for loss of earnings and pain and suffering resulting from the negligently performed tubal ligation including pre and postnatal costs. Mason v. Western Pennsylvania Hosp., 499 Pa. 484, 453 A.2d 974, 976 (1982). It stated:

Thus, if the plaintiff sustains her burden of proof, she is entitled to recover all medical expenses and lost wages related to pre-natal care, delivery, and post-natal care, as well as compensation for pain and suffering incurred during the pre-natal through post-natal periods.
We agree with the majority of the Superior Court and the majority of jurisdictions which have considered the issue that the financial and emotional costs of raising a healthy child are not compensable. In light of this Commonwealth’s public policy, which recognizes the paramount importance of the family to society, we conclude that the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child. (Footnote omitted.)

Id., 499 Pa. at 486-87, 453 A.2d 976.

Appellants therefore argue that the trial court improperly dismissed their claim for medical expenses, wage loss, and pain and suffering resulting from the pregnancy. The trial court stated that these damages should have been pleaded specifically in a separate count. Appellants argue that even if their pleading was inartful, the trial court should have permitted appellants to amend their complaint.

We find that appellants properly pleaded and alleged facts which establish a cause of action falling squarely within the supreme court’s holding in Mason. In count I of their complaint, appellants sought damages as a result of the wife’s pregnancy, and in count II, appellant’s wife also sought damages for her husband, resulting solely from the pregnancy. The damages for relief under counts I and II clearly fall within those permitted by the court in Mason. Appellants claim damages for pre and post-natal costs incident to the pregnancy and birth following the alleged negligent sterlization. We conclude these allegations were pleaded properly and should not have been dismissed. In count III of the complaint, appellants state damages that clearly relate to expenses and inconvenience of raising their child, which clearly are barred by our supreme court’s decision in Mason v. Western Pennsylvania Hosp., supra. We find this authority conclusive; therefore the trial court properly granted summary judgment on count III.

Summary judgment reversed as to counts I and II of the complaint, affirmed as to count III, case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . In count III of their complaint, appellants do seek damages on their own behalf for the birth of their child. Appellants argue herein that the trial court erred in striking this count. We disagree, as discussed in the text.


author: KELLY, Judge:

text:
    568 A.2d 151
    William GLABBATZ and Deborah Glabbatz, h/w, v. TERMINAL FREIGHT HANDLING CO. a/k/a Terminal Freight Cooperative Association and V.S.P. Personal Touch, Inc. Appeal of TERMINAL FREIGHT HANDLING CO. a/k/a Terminal Freight Cooperative Association.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1989.
    Filed Aug. 17, 1989.

      Louis S. Croce, King of Prussia, for appellant.
    Robert Keller, Philadelphia, for V.S.P. Personal Touch, Inc., appellee.
    Before KELLY, JOHNSON and MELINSON, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether a trial court abused its discretion in denying allowance to file a late joinder complaint against an additional defendant under Pa.R.C.P. 2253, when the “cause” for untimely joinder was alleged to be the original defendant’s ongoing but unsuccessful attempt to reach a settlement with the plaintiff. We find no abuse of discretion, and accordingly affirm the order granting the additional defendant’s preliminary objections and dismissing the original defendant’s untimely joinder complaint against the additional defendant.

The relevant facts and procedural history may be briefly summarized as follows. William Glabbatz — plaintiff (appellee), was injured when he slipped and fell on property owned by Terminal Freight Co. — original defendant (appellant). Appellant had a contract with V.S.P. Personal Touch, Inc. — additional defendant (appellee), wherein appellee-V. S.P. would perform maintenance and janitorial services for appellant on their property. On October 10, 1987, appelleeGlabbatz served notice of his complaint in negligence upon appellant. On March 28, 1988, appellant answered the complaint, and the following day filed its joinder complaint against appellee-V.S.P. Thereafter, appellee-V.S.P. filed its preliminary objections which were granted, and appellant’s complaint was dismissed with prejudice. This timely appeal followed. We note that it is well established that an order granting preliminary objections and dismissing defendant’s complaint as to an additional defendant is final and appeal-able. Signal Consumer Discount Co. v. Babuscio, 257 Pa.Super. 101, 390 A.2d 266 (1978).

Appellant raises the following four contentions on appeal:

I. The Joinder should have been permitted.
II. The Joinder, having been stricken, appellant should have not been precluded from filing a Motion for Permission to file a later Joinder.
III. There was no prejudice arising from the late Joinder.
IV. The Lower Court’s Order should not be construed as precluding any later, separate suit between Terminal Freight Handling Company and V.S.P. Personal Touch, Inc. concerning rights of contribution and indemnity.

(Appellant’s Brief at 3). We find no merit in the contentions.

I. Untimely Joinder

Appellant’s first three contentions taken together assert a claim that the trial court abused its discretion in failing to permit late joinder of an additional defendant in this case. Appellant contends that the reason for the delay was a legitimate attempt to settle the claim with the plaintiff, that neither the plaintiff nor the additional defendant were prejudiced by the delay, and therefore it was unreasonable for the trial court to deny allowance to file the late joinder complaint. We cannot agree.

The applicable rule of procedure provides as follows: Neither praecipe for a writ to join an additional defendant nor a complaint if joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

Pa.R.C.P. 2253 (Emphasis added). Because the joinder complaint against the additional defendant was filed more than 60 days after service of the complaint in this case, it was incumbent upon defendant/appellant to show “cause” why late joinder should be permitted. See Exton Development v. Sun Oil Co. of Pa., 363 Pa.Super. 17, 525 A.2d 402 (1987).

In NPW Medical Center v. L.S. Design Group, P.C., 353 Pa.Super. 341, 509 A.2d 1306 (1986), Judge Montemuro cogently explained:

It is clear that the burden of demonstrating sufficient cause to allow the unseasonable joinder of an additional defendant rests with the defendant. Although Rule 2253 neither specifies what constitutes sufficient cause nor delineates the factors to be taken into consideration, our Supreme Court has stated that, in this regard:
“The court ... should be guided by the objective sought to be achieved by use of the additional defendant procedure in conjunction with the purpose for which a 60-day limitation was placed on its unrestricted use. In a capsule, these rules are an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties ... without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.”
Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970). The court has required that a defendant seeking late joinder must establish some reasonable justification for its delay. Finally, the question of whether sufficient cause has been established so as to permit an extension of time is a matter resting within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of that discretion. Therefore, the issue before this court is whether the trial court abused its discretion in concluding that appellant did not establish sufficient cause to permit late joinder.

509 A.2d at 1308-09 (citations and footnote omitted).

Like the appellant in N.P.W. Medical Center v. L.S. Design Group, P.C., supra, appellant herein emphasizes the fact that Pa.R.C.P. 2253 is designed to prevent prejudice caused to complainants by unnecessary delay, and that the plaintiff in this case claimed no prejudice. Appellant’s reliance upon this argument is misplaced. In N.P.W Medical Center, Judge Montemuro also explained:

First, it is certainly true that Zakian v. Liljestrand, supra, states that, in determining whether sufficient cause has been shown, the court must consider that one of the purposes of Rule 2253 is to prevent the plaintiff from suffering prejudice regarding the prosecution of its portion of the litigation due to the defendant’s delay. However, the rule is clearly premised on a more general purpose as well, i.e., to ensure the expeditious resolution of multi-party lawsuits. As stated in Zakian v. Liljestrand, “these rules are an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties.” Id. 438 Pa. at 256, 264 A.2d at 641 (emphasis added). This purpose would not be furthered by allowing defendants seeking joinder of an additional defendant to procrastinate and respond to the court at their convenience. “Before the defendant can ask the court to help him secure a just, speedy and inexpensive determination of the suit by permitting late joinder, he must have acted expeditiously himself.” Id., 438 Pa. at 258, 264 A.2d at 642-43. It cannot be denied that, in the instant case appellant did not act expeditiously.
Second, were we to adopt appellant’s position that it need not show any cause for its delay, we would be ignoring the clear language of Rule 2253, which does not limit the requirement that cause be shown only to cases where the plaintiff objects to the joinder.

509 A.2d at 1310.

Hence, the absence of prejudice to, or complaint by, the plaintiff is not dispositive of a challenge to the trial court’s refusal to permit late joinder of an additional defendant. Rather, the entire question of whether denial of allowance to make late joinder was an abuse of discretion, in this case, is reduced to a question of whether appellant’s explanation, that the delay was caused by appellant’s efforts to settle the case, constitutes sufficient “cause” for delay to make the denial of allowance to make late joinder of the additional defendant an abuse of discretion.

Appellant argues that its ongoing effort to settle the lawsuit was laudable and in furtherance of the same general goal as Pa.R.C.P. 2253, i.e. the expeditious resolution of disputes. We agree. The settlement of disputes is in fact a laudable and favored objective which will often move a court to exercise its discretion to permit the parties to continue negotiations, rather than compel an adversarial joining of the issues which might prejudice such negotiations.

We do not agree, however, with appellant’s further suggestion that, because settlement was desirable, the late joinder should have been excused. There is simply no reasonable nexus between appellant’s settlement efforts and appellant’s failure to file a timely joinder complaint. Nothing whatsoever precluded appellant from preserving its right to pursue a claim against the additional defendant in this action by filing a timely joinder complaint, while still proceeding earnestly with settlement negotiations with the plaintiff. There was nothing mutually exclusive about those potential courses of conduct.

In this respect the present case is roughly analogous to the situation in Commonwealth v. Burruss, 380 Pa.Super. 272, 551 A.2d 580 (1988), wherein an en banc panel of this Court held that the running of a statute of limitations period was not tolled or extended on a bad check charge by the defendant’s post-dishonor promises to pay the amount owed on the check. The messages of Burruss and of this case are similar, i.e. while attempts to reach settlement and amicable resolution of disputes are favored, a claimant assumes the risk that his legal rights will be lost or restricted if the claimant fails to take the steps required to preserve legal rights while separate contemporaneous attempts to reach an out-of-court settlement are conducted.

Finally, we note that appellant had full knowledge of its potential claim against the additional defendant when the original complaint was first received. No protracted discovery or investigation is necessary to put a defendant on notice of its potential claim by a joinder complaint against its office maintenance provider in a case involving a plaintiff’s slip and fall at the defendant’s office. Thus, the untimeliness is not excusable based on delayed discovery grounds either. See N.P.W. Medical Center v. L.S. Design Group, supra, 509 A.2d at 1309; Riccobono v. Keystone Helicopter, Corp., 352 Pa.Super. 186, 507 A.2d 834 (1986).

Hence, we find no abuse of discretion with respect to the grant of preliminary objections, the dismissal of the complaint against the additional defendant, or the denial of allowance of late joinder.

II. Effect of Denial of Late Joinder

Appellant also contends on appeal that the order dismissing the joinder complaint “with prejudice” should not be construed to preclude or otherwise affect appellant’s right to file a separate complaint against appellee for contribution or indemnity. This claim is plainly not ripe for review as there is no order before this Court which has attempted to construe the order on appeal in the manner which appellant suggests. This Court has neither the authority nor the inclination to render a declaratory judgment on the question presented. Rather, it is for the trial court in which such a conflict may arise to decide that question in the first instance, if that question ever in fact actually arises. Only on appeal from such an order would we be properly called upon to reach that issue.

Conclusion

Based upon the foregoing, the order dismissing appellant’s untimely joinder complaint against additional defendant/V.S.P. is affirmed.

      . We do not suggest, of course, that the honor of a bad check would preclude prosecution of an already completed criminal offense in the manner which settlement of a civil claim would preclude further civil litigation. The analogy drawn is concededly a rough one.


author: WIEAND, Judge:

text:
    563 A.2d 155
    Barbara HICKMAN, Administratrix of the Estate of Thomas Hickman, Deceased, and Barbara Hickman, In her own right v. FRUEHAUF CORPORATION, a corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1989.
    Filed Aug. 17, 1989.

      Arthur L. Schwarzwaelder, Pittsburgh, for appellant. John A. Bacharach, Pittsburgh, for appellee.
    Before BROSKY, WIEAND and MELINSON, JJ.
   WIEAND, Judge:

On June 28, 1983, Thomas Hickman took delivery of a used flatbed trailer which he had purchased from Fruehauf Corporation. At or about 6:20 a.m. on the following day, while carrying a load of steel, Hickman’s tractor-trailer left the surface of Interstate Route 76 in the state of Indiana and crashed. Hickman was killed. His widow, Barbara Hickman, commenced wrongful death and survival actions against Fruehauf Corporation, alleging that her decedent’s fatal accident had been caused by a missing slider pin in the trailer. A jury returned a plaintiff’s verdict awarding damages in the amount of Four Hundred Four Thousand ($404,-000) Dollars, which the court reduced to Three Hundred Eighty-Two Thousand, Five Hundred ($382,500) Dollars to reflect No-fault benefits previously paid. Subsequently, delay damages were added in the amount of One Hundred Seventeen Thousand, Nine Hundred Thirty-Seven ($117,-937) Dollars. After post-trial motions had been dismissed, judgment was entered. Fruehauf Corporation appealed.

The case took almost five days to try. After the jurors had been deliberating for more than four hours, they informed the trial court that they were deadlocked. The trial court, in the presence of counsel for both sides, instructed the jury on the importance of trying to agree on a verdict. In so doing, the court referred, inter alia, to the expense of trial, saying:

I am sure you understand the cost involved for both parties. You have seen all the depositions, so, you can see where some of the witnesses are from and it has been an expensive proposition. Also, I am sure you understand the expense to the taxpayers of which the twelve of you are part of that body____
The consequence would be this: If you cannot reach an agreement, I am required by law to declare a mistrial, and this case would have to start all over again. So, I am sure you can see the importance to everybody, plus the system.

On appeal, Fruehauf Corporation argues that it was improper for the trial court, in urging the jury to agree on a verdict, to refer to the cost of litigation to the parties and the public. We disagree.

It has long been the view in this Commonwealth that “[i]t is entirely proper for a trial judge, in an endeavor to prevent another long and expensive trial, to admonish a jury as to the propriety and the importance of agreeing on a verdict.” Commonwealth v. Ross, 190 Pa.Super. 145, 153, 152 A.2d 778, 782 (1959), quoting Commonwealth v. Campbell, 116 Pa.Super. 180, 189, 176 A. 246, 250 (1935). See also: Girard Trust Co. v. Page, 282 Pa. 174, 127 A. 458 (1925); Knickerbocker Ice Co. v. Pa. R.R., 253 Pa. 54, 97 A. 1051 (1916). But see: Miller v. Miller, 187 Pa. 572, 41 A. 277 (1898). Neither the parties nor our own research, however, has disclosed a Pennsylvania appellate court decision resolving the specific issue of whether it is error for a trial court to make reference to the cost of litigation to the parties and the public when giving a verdict-urging instruction to the jury. Nevertheless, the weight of authority in other jurisdictions is that such an instruction is appropriate.

In a number of cases approving the use of verdict-urging instructions, courts have clearly recognized that it is not objectionable in itself for a trial judge to instruct the jury as to the desirability and importance of agreement, by reference to the expense of litigation to the parties and to the public, such as the cost of preparing and trying the case and the expenses arising from a retrial in the event of a failure to reach a verdict.

Anno., Verdict-Urging Instructions in Civil Case Stressing Desirability and Importance of Agreement, 38 A.L.R.3d 1281, 1305 (reviewing cases). We conclude that this is the better view and adopt it. The instructions of the trial court urging the jury to agree upon a verdict in the instant case were impartial and were not unduly coercive. We find nothing therein to suggest that the expense of a second trial would lie more heavily on the plaintiff than on the defendant.

Appellant’s second assignment of error pertains to the testimony of Dr. Dennis Guenther, who was called as an expert witness by the plaintiff. The defendant-appellant contends that his testimony on the issue of liability should have been excluded because it exceeded the scope of his written report. The proper inquiry in such a case

“... is whether there has been surprise or prejudice to the party which is opposing the proffered testimony of the expert, based upon any alleged deviation between the matters disclosed during discovery, and the testimony of such expert at trial.” Trent v. Trotman, 352 Pa.Super. 490, [502], 508 A.2d 580, 587 (1986); Augustine v. Delgado, 332 Pa.Super. 194, 481 A.2d 319 (1984). As we explained in Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa.Super. 285, [290], 502 A.2d 210, 212-13 (1985):

[I]n deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.
“Fair scope” contemplates a reasonable explanation and even an enlargement of the expert’s written words.
An expert’s report is adequate to allow examination on a particular issue at trial when the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness. Martin v. JohnsManville Corporation, 322 Pa.Super. 348, 469 A.2d 655 (1983) [vacated, 508 Pa. 154, 494 A.2d 1088 (1985)].

Millard v. Nagle, Pa.Super. (J. 97010/88; filed June 2, 1989). See also: Painter v. Pennsylvania Elec. Co., 368 Pa.Super. 334, 534 A.2d 110 (1987).

Our review of the record discloses no error or abuse of discretion and no unfairness in the trial court’s ruling. That court, in its opinion responding to post-trial motions, satisfactorily answered appellant’s argument in the following manner, which we adopt.

[Appellant] claims that [the trial] Court erred in permitting Dr. Guenther to testify that the rear tandem wheels of the trailer shifted after it went off the road, and that the absence of a slider lock pin caused the accident. During his testimony, Dr. Guenther referred to two (2) accident scene photographs taken by the Indiana State Police. [Appellant] sought to bar this testimony because the photographs were not mentioned in Dr. Guenther’s report. [Appellant] claims that it was surprised by this testimony, and that it was unable to make a meaningful response.
An examination of the record, however, reveals that the Indiana State Police photographs were a part of Dr. Guenther’s report. In fact, the report consisted of approximately one hundred photographs and four typewritten pages. The report states that the absence of the locking pin would cause a control problem either directly or indirectly when trying to regain control of the unit during steering. After review of the record, this Court concluded that Dr. Guenther’s report fairly stated the substance of the facts and the opinions about which he testified. Further, the defense was aware of the photographs as they were attached to its own expert’s report, and had an opportunity to rebut or make other meaningful response to Dr. Guenther[’]s testimony through its own experts.

Appellant’s final contention is that delay damages should not have been awarded where, as here, neither party had delayed trial. It is now clear, however, that appellant’s contention is without merit. Following the amendment of Pa.R.C.P. 238, the Superior Court held in Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989), that “where, as here, the defendant has not made the requisite settlement offer [pursuant to Rule 238(b)(1) ] and the plaintiff has not caused delay of the trial, [as noted in Rule 238(b)(2)] the defendant is liable for delay damages.” Id., 381 Pa.Superior Ct. at 240, 553 A.2d at 446. We perceive no valid reason for interpreting differently the principles for awarding delay damages announced in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). We conclude, therefore, that the trial court did not err when it awarded delay damages in this case where the defendant-appellant made no offer of settlement prior to trial.

Judgment affirmed.


author: TAMILIA, Judge:

text:
    563 A.2d 158
    COMMONWEALTH of Pennsylvania v. Alvin EARNEST, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Aug. 23, 1989.

      Mark D. Douple, Asst. Public Defender, Lebanon, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Com.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant was found guilty by a jury of involuntary manslaughter and not guilty of third degree murder and endangering the welfare of children in connection with the death of 15 month old Jacqueline Eglinton. He was sentenced on January 13, 1989 to a term of two to four years confinement at the Bucks County Correctional Facility.

Appellant was Jacqueline’s baby-sitter and on November 16, 1987 .Jacqueline’s parents dropped her off at appellant’s home at approximately 6:00 a.m. prior to going to work. At approximately 2:00 p.m. that day, appellant carried Jacqueline into the office of the mobile home park where he lived requesting help, claiming Jacqueline had fallen down the steps and was unconscious. The police and a rescue squad soon arrived and administered CPR before taking her to the hospital but she died the next day of swelling of the brain. Appellant’s wife was at work on the 16th so appellant was alone with Jacqueline and the only witness to the events which led to her death.

Appellant claims he put Jacqueline in bed as soon as she arrived at his house and she did not wake up until 11:00 at which time he fed her lunch. Afterwards, appellant started washing the dishes while Jacqueline played in the living room until appellant heard the storm door click and saw Jacqueline was no longer in the living room. He found her unconscious at the bottom of the porch steps, partially on the sidewalk. He immediately tried to wake her, then went to the office for help.

The Commonwealth contends Jacqueline did not fall down the steps but suffered the brain injury as a result of appellant violently shaking her. The sole issue before the jury, therefore, was what caused the brain swelling which led to Jacqueline’s death.

Appellant raises four issues on appeal: 1) the evidence was insufficient to sustain his conviction; 2) the verdict was against the weight of the evidence; 3) the trial court erred in allowing the jury to view the porch steps pursuant to a jury question when the steps had never been offered into evidence; and 4) whether the court erred in allowing the jury to touch the steps.

Appellant claims the evidence was insufficient to sustain his conviction for involuntary manslaughter because the Commonwealth failed to prove Jacqueline’s death was anything but accidental. “The law is settled in this Commonwealth that in reviewing the sufficiency of the evidence, the appellate court is required to review all the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, which has won the verdiet.” Commonwealth v. Tyson, 363 Pa.Super. 380, 384, 526 A.2d 395, 397 (1987) (citation omitted).

The foundation of appellant’s argument is the experts disagreed over the cause of Jacqueline’s injury but he also claims the verdicts were inconsistent, therefore, the elements of the crime of involuntary manslaughter have not been proven. After reviewing the record and the notes of testimony, we disagree.

Appellant argues the “mechanism” which caused the fatal brain injury was highly disputed — even between the Commonwealth’s own experts — in that Dr. Paul Diamond stated the cause of death was from a blow to the head and Dr. Paul Hoyer stated the cause of death was “shaken baby syndrome.” Our review of the testimony reveals this discrepancy is not as ruinous to the Commonwealth’s case as appellant suggests because Dr. Diamond testified as to certain injuries the child had suffered indicative of “shaken baby” but concluded Jacqueline had been “struck and not just shaken.” (N.T. 3/31/88, p. 167) (emphasis added). Dr. Diamond did not rule out shaken baby syndrome but considered the other injuries found on the child to be contributory to her death. In any event, whether Jacqueline was struck or shaken is not a relevant distinction as appellant was the only one who could have committed the act or acts.

Our Supreme Court, in Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973), established the rule of law for cases such as this:

Where, as here, an adult has sole custody of a child for a period of time, and, during that time the child suffers wounds which unquestionably are neither self-inflicted nor accidental, the evidence is sufficient to allow a jury to infer that the adult inflicted the wounds.

Id., 451 Pa. at 255, 301 A.2d at 840.

This Court reiterated and relied on this rule allowing an inference of guilt where a child suffers a fatal injury while an adult has sole custody of the child in Commonwealth v. Nissly, 379 Pa.Super. 86, 549 A.2d 918 (1988). In Nissly, the defendant was not the only adult in the house when the fatal injury was inflicted but the inference of guilt was still applicable as the defendant was the only adult with the child when the injury had to have occurred. As in the instant case, the fact finder found the injury was not accidental or self-inflicted, therefore, the evidence was sufficient for the conviction, as we find it is here.

Appellant’s contention the verdicts were inconsistent because the jury found him not guilty of endangering the welfare of children is without merit. The statutes provide as follows:

§ 2504. Involuntary manslaughter

(a) General rule. — A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

18 Pa.C.S. § 2504(a).

§ 4304. Endangering welfare of children

A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

18 Pa.C.S. § 4304.

We agree with the Commonwealth’s argument that even though the jury found appellant did not knowingly endanger Jacqueline they could rightfully find he recklessly or in a grossly negligent manner caused her death.

Appellant’s second argument is the verdict was against the weight of the evidence because the Commonwealth’s experts were not worthy of belief due to their contradictory opinions. Again, as discussed above, the opinions were not contradictory and the differences, if any, do not exculpate appellant. Furthermore, as we have stated many times:

Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part, or none of the evidence presented. Whether a new trial should be granted because the verdict is against the weight of the evidence is an issue addressed to the sound discretion of the trial court; a new trial should be granted only when the verdict is so contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Pearsall, 368 Pa.Super. 327, 330, 534 A.2d 106, 108 (1987) (citations omitted).

In light of all the testimony and evidence presented, we do not find the verdict to be so contrary to the evidence as to shock our sense of justice.

Appellant’s final two issues allege trial court error in allowing the jury, during deliberations, to view the porch steps which had been transported to the courthouse from appellant’s mobile home and allowing certain members of the jury to touch the steps even though the court’s instructions were that the jury could view the steps. These contentions are without merit as appellant fails to show how he was prejudiced by the alleged errors. (See Walasavage v. Marinetti, 334 Pa.Super. 396, 483 A.2d 509 (1984), where trial court permitted jury to retain certain documents during deliberations but this error did not prejudice defendant so a new trial was unwarranted.)

Judgment of sentence affirmed.

      . Dr. Diamond testified that Jacqueline had multiple bruises, approximately 20, on all different parts of her body which were in different stages of healing (N.T. 3/31/88, pp. 151-152).

      . Appellant’s expert, Dr. Richard Lindenberg, also cited the cause of death as acute brain swelling (N.T. 4/5/88, p. 365) although he disagreed with the conclusions of Dr. Diamond and Dr. Hoyer in that Dr. Lindenberg believed the injuries were consistent with a fall. The difference of opinions, however, goes to the weight of the evidence and not the sufficiency.


author: MELINSON, Judge: BROSKY, Judge, McEWEN, Judge,

text:
    563 A.2d 161
    COMMONWEALTH of Pennsylvania v. Rodney JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed Aug. 25, 1989.

      Norris E. Gelman, Philadelphia, for appellant.
    Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN, OLSZEWSKI, TAMILIA, POPOVICH, JOHNSON and MELINSON, JJ.
   MELINSON, Judge:

Rodney Jones appeals from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County. We affirm.

Jones, the appellant at bar, was convicted by a jury of three counts of aggravated assault and possession of an instrument of crime. After Jones’s conviction, newly retained counsel filed post-verdict motions. Post-verdict motions were denied and Jones received an aggregate sentence of five to ten years’ imprisonment. Jones’s timely appeal from the Judgment of Sentence was dismissed for failure to file a brief. Thereafter, present counsel filed a petition under the Post Conviction Hearing Act [PCHA] alleging ineffectiveness of all prior counsel and seeking to have Jones’s appeal rights reinstated nunc pro tunc. The petition was granted, and this appeal followed.

On appeal, Jones claims that trial counsel was ineffective for failing to object to the trial court’s instructions regarding Jones’s alibi defense and the definition of reasonable doubt. He further alleges that post-verdict motions counsel was ineffective for failing to raise these claims in Jones’s post-verdict motions.

In any ineffectiveness of counsel claim, counsel is presumed competent. The burden of rebutting this presumption is on the defendant. Commonwealth v. Westeott, 362 Pa.Super. 176, 523 A.2d 1140 (1987). There are three elements to a valid claim of ineffectiveness. First, the appellant must show that his underlying claim is of arguable merit. If he succeeds, the appellant must then demonstrate that the course chosen by counsel was not reasonably designed to protect the appellant’s best interests. If the appellant is able to prove these elements, he must then establish that he was actually prejudiced by counsel’s improper course of conduct. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Initially, we find that the trial court did not err in its charge to the jury on the defense of alibi. Accordingly, Jones’s ineffectiveness claim concerning this aspect of the charge is meritless. The trial court instructed the jury regarding the defense of alibi as follows:

The defense is that he was not there, that the eyewitness was mistaken as to his identity, and he has presented an alibi defense. His alibi defense is to the effect that at the time that the crime was committed, that the shooting occurred, I was not there. I was elsewhere, and he has presented witnesses for your consideration on that issue. When you come to consider this defense, ladies and gentlemen, of alibi, you must consider, among other things, whether the testimony given covers the entire time the offense is shown to have been committed and whether it precludes the possibility of defendant’s presence at the scene of the crime.
You should consider this evidence along with other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that the crime was then committed and that the defendant committed it or took part therein.
The defendant’s alibi evidence that he was not present may, in itself, work for acquittal, or it, together with other evidence, may be sufficient to raise a reasonable doubt in your mind as jurors. Of course, the alibi witnesses ought to be evaluated by you like you do that of any other witness. You apply to them all the standards that I’ve indicated you should apply in arriving at the truths____

N.T. October 9, 1986 at 2.130-2.131 (emphasis added).

An appellate evaluation of a trial court charge must be based on an examination of the charge as a whole to determine whether it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986); Commonwealth v. Riggins, 374 Pa.Super. 243, 542 A.2d 1004 (1988). In considering this directive, this court has repeatedly stated that “we may not predicate a finding of error upon isolated excerpts of the charge as it is the general effect of the charge that controls.” Riggins, 374 Pa.Super. at 253, 542 A.2d 1004, quoting Commonwealth v. Klinger, 369 Pa.Super. 526, 540, 535 A.2d 1060, 1066 (1987); see also Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (1986).

The Supreme Court of Pennsylvania has recognized the need for an alibi instruction. In Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), although alibi evidence was presented by the defendant, no alibi charge was given to the jury by the trial court. The Supreme Court held that when a defendant presents evidence of an alibi, a specific alibi instruction must be given to the jury which guards against the possibility that the defendant’s failure to prove alibi would be construed by the jury as evidence of guilt. Thus, the Court wrote, “the trial court failed to instruct the jury that it should acquit if Pounds’ alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime ...” Pounds, 490 Pa. at 633, 417 A.2d 597.

Jones argues here that the “even if not wholly believed” language articulated in Pounds must be incorporated into an alibi charge, and that trial counsel was ineffective for failing to object to the court’s charge at bar. Jones’s argument directly contravenes established case law of this court. In Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984), this court specifically stated that “we do not interpret Pounds as creating standard language for an alibi instruction. So long as the trial judge makes it clear that the defendant’s failure to prove an alibi is not tantamount to guilt, the Pounds safeguards are preserved.” Johnson, 336 Pa.Super. at 18, 485 A.2d 397. In Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), a panel of this court again considered an appellant’s argument that the “even if not wholly believed” language of Pounds must be used in an alibi instruction. Like the Johnson court before it, the Bright court rejected this argument, stating, “appellant is merely contesting the form of the instruction rather than its substance.” Bright, 361 Pa.Super. at 267, 522 A.2d 573. Most recently, in Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579 (1987), the appellant argued that the trial court’s charge was defective because it did not specifically tell the jury that the alibi testimony offered by the appellant’s witness “did not have to be totally accepted to acquit” the appellant. Quarles, 361 Pa.Super. at 280, 522 A.2d 579. As did the Superior Court panels in Johnson and Bright, the Quarles court found the appellant’s contention meritless. The court stated:

The trial judge in his charge to the jury regarding appellant’s alibi stated: “The defense evidence to the effect that he was not present either by itself or together with other evidence may be sufficient to raise a reasonable doubt of his guilt in your minds.” ... Appellant’s trial counsel, consequently, did not render ineffective assistance of counsel by failing to object to the trial court’s alibi charge since the judge’s alibi charge informed the jury that the alibi, by itself or with other evidence, may be sufficient to raise reasonable doubts in the jurors’ minds about appellant’s guilt.

Quarles, 361 Pa.Super. at 280, 522 A.2d 573 (emphasis in original).

Clearly, a trial court alibi charge will not per se be deemed erroneous for failing to parrot the language of the Pounds Court. Rather, what is required of the trial court is that it make clear to the jury that the defendant’s failure to prove alibi is not tantamount to guilt. Here, the court told the members of the jury that they should consider Jones’s alibi testimony, in conjunction with the other evidence offered, to determine whether the Commonwealth met its burden of proving beyond a reasonable doubt that the crime was committed by Jones. Furthermore, the court at bar, like the trial court in Quarles, told the jury that Jones’s alibi evidence, either by itself or together with other evidence, may be sufficient to raise a reasonable doubt of Jones’s guilt and acquit him. Accordingly, after evaluating the trial court’s charge as a whole, we find that the trial court’s alibi charge was proper here. See Commonwealth v. Riggins, 374 Pa.Super. 243, 542 A.2d 1004 (1988). Because counsel will not be deemed ineffective for failing to pursue a meritless claim, we find that trial counsel and post-verdict motions counsel were not ineffective for failing to object to the trial court’s charge. See Commonwealth v. Blagman, 350 Pa.Super. 367, 504 A.2d 883 (1986).

Jones next contends that trial counsel was ineffective for failing to object to the court’s jury instructions regarding the definition of reasonable doubt. We find this issue meritless.

There is no required jury charge on the definition of “reasonable doubt” in this Commonwealth. Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968). Our Supreme Court, however, has approved the following charge defining reasonable doubt:

The defendant comes before you presumed to be innocent and the burden is upon the Commonwealth to prove his guilt beyond a reasonable doubt. A reasonable doubt cannot be a doubt fancied or conjured up in the minds of the jury to escape an unpleasant verdict; it must be an honest doubt arising out of the evidence itself, the kind of doubt that would restrain a reasonable man (or woman) from acting in a matter of importance to himself (or herself).

Commonwealth v. Young, 456 Pa. 102, 110, 317 A.2d 258, 262 (1974), quoting Commonwealth v. Donough, 377 Pa. 46, 51-52, 103 A.2d 694, 697 (1954); see also Williams, 432 Pa. at 561-62, 248 A.2d 301. Additionally, the Pennsylvania Standard Criminal Jury Instructions sets forth the following suggested instruction regarding reasonable doubt:

Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt and to a mathematical certainty, nor must it demonstrate the complete impossibility of innocence. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his [or her] own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime. A reasonable doubt must be a real doubt; it may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.

Pennsylvania Standard Criminal Jury Instructions 7.01(3).

In the case before us, the trial court instructed the jury regarding the definition of reasonable doubt as follows:

[The Commonwealth] will have to prove each element of the crime charge beyond a reasonable doubt. I’m not talking about mathematical certainty, but beyond a reasonable doubt. So a reasonable doubt must be more than a mere possible doubt because you can have a doubt about almost anything in life. A reasonable doubt must be more than a fanciful doubt, a caprice, a whim or a doubt that you would conjure up in your own mind in order to avoid the unpleasant task of determining guilt or non-guilt. It is a substantive doubt. It is a real doubt, a doubt of such substance that if it occurs in a matter of importance in your own affairs, it would restrain you from acting____ Do you have a reasonable doubt, a doubt of such substance that if it occurred in a matter of importance in your own affairs it would restrain you from acting?

N.T. October 9, 1986 at 2.135-2.136 (emphasis added).

Jones argues that the use of the term “substantive doubt” was interpreted by the jury to mean “substantial doubt” and, therefore, the charge was erroneous because it diluted the Commonwealth’s burden of proof. We disagree. The word “substantive” is defined as “having the character or status of or referring to something that is real rather than apparent.” WEBSTER’S NEW COLLEGIATE DICTIONARY 1153 (1979). Thus, a substantive doubt, like reasonable doubt, is a real doubt, not one that is “fancied or conjured up in the minds of the jury.” See Young, 456 Pa. at 110, 317 A.2d 258; Donough, 377 Pa. at 51,103 A.2d 694. Because the court could properly instruct the jury that a reasonable doubt must be a real doubt, the court did not err in defining reasonable doubt as a doubt of substance. Accordingly, we conclude that this contention lacks arguable merit; thus, trial and post-trial counsel were not ineffective.

Judgment of Sentence affirmed.

BROSKY, J., files a Dissenting Opinion.

McEWEN, J., files a Dissenting Statement.

BROSKY, Judge,

dissenting.

Consistent with my Dissenting Opinion in Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984), I respectfully dissent. I believe that Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), is controlling. Our Supreme Court stated in Pounds that, “[T]he trial court failed to instruct the jury that it should acquit if Pounds’ alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt.” Id., 490 Pa. at 633, 417 A.2d at 603 (citations omitted) (footnote omitted) (emphasis added). The omission of the phrase “even if not wholly believed” from an alibi charge may cause a jury to believe that reasonable doubt does not exist since the jury did not wholly believe a defendant’s alibi testimony.

McEWEN, Judge,

dissenting.

The author of the majority opinion has, in his usual insightful fashion, expressed his position in such compelling fashion that I more wisely proceed to rapidly recite and retreat. If we agree that the instructions provided the jury by the trial judge may not simply give a general impression of the law but must provide precise statements of legal principle, I am troubled by the following portion of the instruction upon alibi:

... you must consider, among other things, whether the testimony given covers the entire time the offense is shown to have been committed and whether it precludes the possibility of defendant’s presence at the scene of the crime, (emphasis supplied).

The majority acknowledges, as direction of the Pennsylvania Supreme Court in Commonwealth v. Pounds, 490 Pa. 621, 633, 417 A.2d 597, 603 (1980), the need for the trial judge “to instruct the jury that it should acquit if [the] alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime____”. (emphasis supplied). I am of a mind that the “airtight” standard of the challenged instruction imposed a heavier burden upon appellant than that dictated by the Supreme Court when it declared that alibi evidence even if not “wholly believed” can be sufficient to create reasonable doubt. Thus, the instruction to the jury that the alibi evidence of appellant was required to preclude the possibil ity of his presence at the scene of the crime, prescribed a more demanding and, therefore, improper standard for the jury to apply to the alibi evidence as it weighed the existence of reasonable doubt. Therefore, I would grant the motion of appellant for a new trial.


author: HOFFMAN, Judge:

text:
    563 A.2d 165
    COMMONWEALTH of Pennsylvania v. Daniel ROGERS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 15, 1989.
    Filed Aug. 25, 1989.

      Robert Glessner, York, for appellant.
    H. Stanley Rebert, Dist. Atty., York, for Com., appellee.
    Before BROSKY, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for indecent assault. Appellant contends that the sentence imposed was an abuse of discretion because (1) the court failed to state on the record adequate reasons for the sentence imposed; (2) the probation department’s pre-sentence report was biased; and (3) the ten-month minimum sentence was inappropriate. For the reasons that follow, we affirm.

Appellant was charged with the indecent assault of a six-year-old girl. On January 14, 1987, a jury found appellant guilty of indecent assault. Following post-verdict motions, appellant was granted a new trial. Appellant was again tried before a jury and, on December 15, 1987, was again found guilty. Post-verdict motions were filed and denied and, on June 2, 1988 appellant was sentenced to a ten-to-twenty-three-month term of imprisonment. Appellant’s Motion for Reconsideration of Sentence was filed and denied, and this appeal followed.

We note preliminarily that because appellant does not challenge the legality of his sentence, his right to appeal is governed by 42 Pa.C.S.A. § 9781(b). The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant has failed to include in his brief “a concise statement of the reasons relied upon for allowance of appeal” as required by Rule 2119(f) and Tuladziecki. In Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), however, this Court held that an appellant’s failure to comply with Rule 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Id., 367 Pa.Superior Ct. at 519, 533 A.2d at 138. Here, the Commonwealth has failed to object to the defect in appellant’s brief; accordingly, we may proceed to “determine, in [our] own discretion, whether there is a substantial issue requiring [us] to review the discretionary aspects of the sentence imposed by the trial court.” Id.

Appellant’s first claim is that the sentence imposed was an abuse of discretion because the court failed to state on the record adequate reasons for the sentence imposed. This claim is waived. Issues regarding the propriety of a sentence are waived unless they are raised before the sentencing court in a motion to modify the sentence. See, e.g., Commonwealth v. Krum, supra, 367 Pa.Superior Ct. at 515-16, 533 A.2d at 135. Here, appellant failed to set forth in his motion for reconsideration of sentence a specific claim concerning the adequacy of the court’s statement of its reasons for imposing sentence. See R.R. at 13-14. Accordingly, appellant has failed to preserve this claim for appellate review.

Appellant’s next claim is that the sentence imposed was an abuse of discretion because the trial court relied on a biased pre-sentencing report. Initially, we note that we are satisfied that this claim presents a substantial question for our review. In Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), our Supreme Court emphasized the important role that pre-sentence reports play in the sentencing process:

Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself____ Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed____

Id., 519 Pa. at 101-02, 546 A.2d at 18. In light of the importance of these reports, a claim that a court relied upon a pre-sentence report that was inaccurate or biased raises a colorable argument that the sentence imposed was an abuse of discretion. Accordingly, we grant allowance of appeal as to this issue.

Rule 1403 of the Pennsylvania Rules of Criminal Procedure provides in relevant part that that “[t]he pre-sentence investigation report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the court in determining sentence.” Id. at 1403(A)(3). Here, appellant’s specific argument is that the pre-sentence report was inaccurate or biased because

a damaging opinion was put into the report which suggested that the defendant was a danger to his wife and daughter ... [but] [u]nfortunately, the Probation department never bothered to place a simple telephone call to the defendant’s wife to find out her feelings about the matter. Rather the investigating officer saw no reason to contact the Defendant’s wife, ... or employer, to find out what kind of employee he is, ... or husband.

Brief of Appellant at 10. This claim is meritless. First, we note that appellant does not contend that the “damaging opinion” contained in the report was an inaccurate summary of the statement of the witness(es) interviewed by the probation officer. Moreover, although the probation officer did not interview appellant’s wife, her “feelings about the matter” were made known when, at sentencing, counsel read a letter from appellant’s wife into the record. In the letter, appellant’s wife indicated that she and her daughter see appellant every day, that they depend on him for support, and that in her opinion he is a hard-working, devoted family man. See R.R. at 35-37. In addition, appellant took the stand at the sentencing hearing and testified regarding his prior record and his relationship with his wife and child. See id. at 28-30. Thus, in light of the evidence presented by appellant at the sentencing hearing, the sentencing court clearly was presented with sufficient information concerning appellant’s character to formulate a proper sentence. Because appellant’s claim that the report was biased or inaccurate is unsupported by the record, we conclude that he is not entitled to relief on this ground.

Appellant last contends that the ten-month minimum sentence imposed on him was inappropriate. Specifically, appellant argues that a sentence of incarceration is inappropriate because “he is not a danger to his wife and daughter, he regularly supports them through his job as a machinist, and he has not been in trouble with the law since the late 1970’s.” Brief of Appellant at 11. We note that appellant does not allege that the court was unaware of these mitigating factors. Instead, appellant merely argues that the court’s conclusion —i.e., the actual sentence imposed— was inappropriate in light of that information. This type of claim, which asks us to substitute our judgment for that of the sentencing court, does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole. See Commonwealth v. Tuladziecki, supra 513 Pa. at 515, 522 A.2d at 20; Commonwealth v. Billett, 370 Pa.Super. 125, 131, 535 A.2d 1182, 1185 (1988). Accordingly, we must disallow the appeal as to this issue.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . In Commonwealth v. Gambal, — Pa. —, 561 A.2d 710 (1989), our Supreme Court recently considered the procedure outlined in Krum. The Court agreed that, if an appellee fails to object to a Rule 2119(f) defect, we may overlook the defect and proceed to determine whether a substantial question has been presented for review. Id., — Pa. at —, 561 A.2d at 713. The Gambal Court also ruled, however, that if the absence of the Rule 2119(f) statement “significantly hampered” our ability to determine whether a substantial question existed, we “should be permitted to enforce compliance with Pa.R.A.P. 2119(f). Here, we have carefully reviewed appellant’s brief and we are satisfied that the absence of the Rule 2119(f) statement does not significantly hamper our ability to review appellant’s claims.

      . We are aware that, in Commonwealth v. Graham, 372 Pa.Super. 365, 539 A.2d 838 (1988), a panel of this Court held that a claim that the trial court abused its discretion in relying on a potentially biased pre-sentence report did not present a substantial question. Id., 372 Pa.Superior Ct. at 367-68, 539 A.2d at 838-39. Graham is distinguishable from this case for two reasons. First, the Graham panel noted that the defendant’s “sole objection” to the pre-sentence report was that the recommended sentence “was too high and should not be considered." Id., 372 Pa.Superior Ct. at 368 n. 3, 539 A.2d at 839 n. 3. The panel emphasized that “[n]o objection was raised to any other material contained in the report." Id. Here, appellant has raised an objection to the material contained in the pre-sentence report. Second, we note that Graham was decided before our Supreme Court’s decision in Devers.