text:
    519 A.2d 488
    Florence B. KOBYLINSKI, Executrix of the Estate of Joseph A. Kobylinski, Sr., Deceased v. Dr. John G. HIPPS and Dr. William Schmidt v. Dr. William SCHMIDT v. Dr. John G. HIPPS. Appeal of Dr. William SCHMIDT.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Dec. 22, 1986.

      Paul H. Millin, District Attorney, Tionesta, for appellant.
    T. Warren Jones, Erie, for Hipps, appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

On the evening of November 26, 1979, Plaintiff’s Decedent had been visiting a residence, owned by Appellant-Schmidt, who had leased it to Appellee-Hipps. Decedent, along with his family, was on the premises because Decedent’s son had lacerated a finger and wanted Appellee, a physician, to examine the injury. Appellee was Decedent’s son’s father-in-law. Decedent accompanied Appellee and Decedent’s son to Appellee’s residence, Decedent stepped out of the automobile which had stopped adjacent to an unguarded exterior stairwell attached to the home, and plunged to his death. The record shows that the stairwell was equipped with an outside light positioned over a basement door; however, it was not illuminated that evening. In addition it was further pointed out during trial that Decedent was not familiar with the stairwell’s unprotected condition.

Following the accident, Plaintiff, executrix of Decedent’s estate, lodged a wrongful death and survival action against Appellant and Appellee who later joined each other as additional defendants. A jury trial was conducted after which negligence was apportioned as follows: Decedent— 5%, Appellee — 20%, Appellant — 75%. Decedent’s estate was awarded a net amount of $30,000.

Subsequently, Appellant filed a Motion for Judgment Non Obstante Veredicto or in the Alternative for a New Trial. On October 21, 1985, Appellant’s post-trial motion was denied and Judgment was entered on the verdicts. This appeal follows.

Appellant cites three instances of error allegedly committed by the trial court. First, it is claimed that the trial judge improperly instructed the jury on the law concerning the liability of a landlord out of possession. Second, Appellant posits the trial court erred in its instruction to the jury concerning an exculpatory clause found in the lease. Third, it is advanced that the trial court committed error by failing to instruct the jury on the question of primary/secondary, active/passive negligence and the law concerning intervening efficient or superseding cause.

By his brief, Appellant correctly points out that neither a Motion for Directed Verdict nor Binding Instructions were filed by Appellant at the close of evidence. We note that under prior statutory authority in effect at the time of trial, a written and filed request for binding instructions was a condition precedent to the filing of a motion for judgment n.o.v. See 12 P.S. § 681. (Repealed effective June 27, 1980). See also 42 P.S. § 20003(b) (provisions of statute remained effective as part of common law under failsafe provisions of JARA).

While it is true that Appellant did not comply with these directives, we find, from an independent review of materials supplied to this court, a bundle of documents designated by the trial court Prothonotary as “papers ... sent directly to the Judge and not filed in the Prothonotary’s office.” Contained within this collection is a Motion for Directed Verdict, signed by Appellant’s counsel. A directed verdict was requested on the ground that, with some exceptions, a lessor is not liable for injuries sustained by third parties while on the owner’s property when the owner was out of possession. The requested Points for Charge presented to the trial court before jury deliberation outlined in greater detail this area of tort law. However, this Point for Charge was refused and Appellant’s counsel took an exception to this denial. (N.T. 201, 214).

We recognize that the rules of civil procedure should be followed in order to ensure the smooth and efficient operation of the judicial process. However, we are guided by Pa.R.C.P. 126, which sanctions liberal construction of the rules in an effort to promote the accordance of fairness among the parties. Dream Pools of Pennsylvania, Inc. v. Baehr, 326 Pa.Super. 583, 589, 474 A.2d 1181, 1134 (1984). See Pa.R.C.P. 126. “The Rules of Civil Procedure are designed to achieve the ends of justice and are not to be accorded the status of substantive objective requiring rigid adherence.” Lewis v. Erie Insurance Exchange, 281 Pa. Super. 193, 199, 421 A.2d 1214, 1217 (1980).

We will address the merits of Appellants’ motion for judgment n.o.v. although a motion for directed verdict was not filed with the Prothonotary but with the court during trial. We base this decision on the fact that the trial judge was given the opportunity to consider Appellant’s request for directed verdict during the course of the trial. Moreover, the legal predicates on which Appellant rest his motion for judgment n.o.v. were presented to the trial judge as Points for Charge, and when denied, Appellant’s counsel took exception. We are convinced that Appellant has substantially complied with the Rules of Civil Procedure in effect at the time of trial. Any deviation that was committed by failing to file the motion with the Prothonotary was de minimus under the circumstances and did not jeopardize the substantive rights of the parties involved.

In reviewing a motion for judgment n.o.v., the facts must be considered in the light most favorable to the party against whom the motion was made. Maravich v. Aetna Life and Casualty Co., 350 Pa.Super. 392, 396, 504 A.2d 896, 898 (1986). If, however, the law does not permit recovery upon the alleged facts on which the jury may justifiably have found, a judgment n.o.v. should be granted. Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 589, 375 A.2d 1267, 1273 (1977).

Appellant initially urges that the trial court erroneously instructed the jury on the status of Pennsylvania law concerning the liability of a landlord out of possession. Appellant cites two excerpts of the trial court’s jury instructions in support of this contention. We shall address the accuracy of these excerpts in seriatim. The first excerpt is as follows:

A landlord may be liable for bodily harm sustained by a third party as a result of a defect or dangerous condition existing at the time of execution of the lease. So what this point is saying is that the stairwell was there when Dr. Hipps leased it and in May of 1979, May 31st I believe (N.T. 201).

We agree that a landlord may be held liable to third parties for injuries sustained on his/her property; however, this statement falls short from being an adequate explanation of the status of the law in this area of torts. The general rule in Pennsylvania states that a landlord out of possession, in most instances, is not responsible for injuries suffered by third parties on the leased premises. Pierce v. Philadelphia Housing Authority, 337 Pa.Super. 254, 257, 486 A.2d 1004, 1005 (1985). In Parquet v. Blahunka, 368 Pa. 626, 84 A.2d 187 (1951), our Supreme Court was confronted with a factual situation similar to that of the case at bar. Lessee rented a house from Landlord which had a defective porch railing. During the course of a social visit, the railing collapsed resulting in injuries to Lessee’s guest. The Supreme Court opined in Parquet that a landlord out of possession was not liable for bodily harm caused to his/her lessee, or others on the property with the consent of the lessee, by any dangerous condition, whether natural or artificial, which existed at the time lessee took possession and which the lessee knew, or should have known, to exist. Id., at 368 Pa. 627, 84 A.2d 188.

However, this rule is not without exception. Our research of case law in Pennsylvania shows several instances in which liability attached to a landlord out of possession:

1. the lessor contracts to make repairs but either refuses to make them or performs them in a negligent manner. Klais et ux. v. Guiton, 344 Pa. 600, 601, 26 A.2d 293 (1942);
2. the lessor conceals, or fails to disclose to the lessee, any condition which involves unreasonable risk of physical harm to persons on the property. Doyle v. Atlantic Refining Co., 357 Pa. 92, 98-99, 53 A.2d 68, 71 (1947);
3. the landlord knew, or should have known, the leased premises were to be used for purposes involving admission to the public. Yarkosky v. The Caldwell Store, Inc., 189 Pa.Super. 475, 481, 151 A.2d 839, 842 (1959); and,
4. the landlord has retained control over a portion of the property which is necessary to the safe use of the leased property; or, if the lessor shares with the lessee the right to possess any section of the property. Smith v. M.P. W. Realty Co., 423 Pa. 536, 539, 225 A.2d 227, 229 (1967). Pagano v. Redevelopment Authority, Etc., 249 Pa.Super. 303, 319-321, 376 A.2d 999, 1007-08 (1977).

See generally Restatement (Second) of Torts §§ 356-362 (1965).

It is clear from the record that none of these exceptions are applicable to the case at bar. There is no dispute to the fact that the rental agreement entered into by both parties consisted of a lease wherein Appellee would gain sole possession of the premises for use as a private dwelling. (N.T. 159, 165). Likewise, the record does not indicate that the house was to be used for purposes involving admission to the general public. In addition, there was no testimony to the effect that Appellant, as landlord, convenanted to make any major repairs to the building throughout the leasehold period. (N.T. 166-67). Finally, it is patently clear that the unguarded condition of the outside stairwell was conspicuous at the time the lease was executed and that Appellee never questioned Appellant about its safety. (N.T. 58, 158).

By its Opinion, the trial court mistakenly relied upon Toth v. Philadelphia, 213 Pa.Super. 282, 247 A.2d 629 (1968), as being dispositive of Pennsylvania law concerning the potential liability of a landlord out of possession to third parties injured on the leased premises:

“A long established exception ... has been that if the defect existed at the time the lease was executed, the landlord remains responsible to the injured third party.”

Toth at 213 Pa.Superior Ct. 287, 247 A.2d 631. (Trial Court Opinion 4, 5). We find that this statement is correct as applied to the facts in Toth. However, it cannot be taken out of context and applied to a completely different set of circumstances, as evidenced by the facts in the case at bar. In Toth, Plaintiff was a pedestrian who was injured on a defective sidewalk infront of the leased premises owned by Defendant-Landlord. The landlord was held liable for failing to maintain the sidewalk in a safe condition, inasmuch as Plaintiff was a member of the general public, who Defendant fully expected to use the sidewalk. Read in this light, Toth is clearly an example of this court’s application of the third exception set out above. This is even more apparent given the fact that the court almost exclusively relied on past slip-and-fall cases on sidewalks in arriving at its conclusion. Although the language of the Opinion seemingly establishes a broad rule of law, it must be narrowly applied to the facts of the case.

By comparison, Decedent, in the case sub judice, was not a member of the general public whom Appellant expected to enter the leased property. Rather, Decedent was a social guest who was owed a completely different standard of care. The trial judge’s confusion of Decedent’s classification is evident from the second excerpt of the jury charge cited by Appellant as a misstatement of the law:

[n]ow, in that regard and in further charge concerning the issue of the duty of a possessor of land. What is the duty that the Defendants had to the decedent. The decedent as an invitee upon these premises as contrasted to a trespasser or he was there was a guest and the law says this: a possessor of land is subject to liability for a physical harm caused to invitees by a condition on the land, if but only if first, the possessor knows or has reason to know of the condition and should recognize that it involved an unreasonable risk of harm to such invitees and should expect that they will not discover or recognize the danger. Two, and he fails to exercise reasonable care to make the condition safe or to warrant the invitee of the condition and the risk involved. Finally, the invitee does not know or have reasons to know of the condition and the risk involved.
Now, that’s the duty that Hipps and Schmidt had to Kobylinski under the issue of negligence. The question is, did they recognize that it was a dangerous condition and did they ignore that to protect the invitee and did the invitee have any reason to know the condition existed, and if he did, if you find from any of the facts that he recognized or should have ... (R.Pp. 225a and 226a) (emphasis added).

At the outset we note that the jury instruction above is an almost verbatim recitation of the Restatement (Second) of Torts § 343 (1965). Our Supreme Court has found it proper to adopt the language of § 343; however, the section clearly sets out a standard of care owed to an invitee by a possessor of land as defined in the Restatement (Second) of Torts § 332 (1965).

The trial court’s reliance on the above-cited excerpt is misguided for two reasons. First, Decedent’s status upon entering the land was that of a licensee, not an invitee. “These are not self-defining terms, and in applying them to a set of circumstances we are guided by the definitions in the Restatement (Second) of Torts § 328-343 (1965), which have been adopted by Pennsylvania law.” Wiegand By Wiegand v. Mars National Bank, 308 Pa.Super. 218, 221, 454 A.2d 99, 101 (1982). The facts before us are not disputed. Illustrated in the record is a familial relationship in which Decedent’s purpose in attempting to enter the home was to briefly bid good night to Appellee and his family. (N.T. 32). Moreover, there is no evidence to support the theory that Decedent’s presence on the property was prompted by any business dealings inuring to Appel-lee’s benefit. Likewise, we note that Appellant-Schmidt was not in possession of the property. This further underscores the inappropriateness of the jury instruction to the facts of the case before us.

Second, the trial court further confounded the appropriateness of this excerpt by instructing the jury that the law outlined previously was “the duty that Hipps and Schmidt had to Kobylinski under the issue of negligence.” See excerpt above. For reasons set forth in the beginning of this discussion, it was erroneous to place both defendants on the same footing in reference to the issue of negligence.

Under the facts of this case, it is clear that Appellant, as an owner out of possession, could not be held liable for Decedent’s death according to Pennsylvania law. Appellant’s motion for judgment n.o.v. should have been granted. Appellee’s failure to warn Decedent, as a social guest, of the hazardous stairwell was a violation of a duty owned by the tenant.

Having determined that Appellant should have been awarded a judgment n.o.v., we are faced with this decision’s effect upon the jury’s finding that Decedent was 5% negligent and Appellee was 25% negligent. “We are constrained to agree that an attempt by a court to reapportion negligence in this case would be speculative. The issues of damages, however, has been fairly tried.” The only issue requiring retrial is the apportionment of damages between Decedent and Appellee. Henze v. Texaco, Inc., 352 Pa.Super. 538, 546, 508 A.2d 1200, 1205 (1986).

Judgment reversed and case remanded with directions to enter judgment n.o.v. in favor of Appellant, and for a new trial on the issues of the causative negligence only of Decedent and Appellee. Jurisdiction of the court relinquished.

      . Pa.RX.P. 226(b) provides a major change in practice. Requests for binding instructions have been eliminated and replaced by motions for directed verdict which may be oral or written. No express requirement of filing a motion for directed verdict as a prerequisite to filing a motion for judgment n.o.v. is contained within new Rule 226(b). See Pa.R.C.P. 226(b).

      . We note that had the changes found in Rule 226(b) been in effect at the time of trial, supplying the trial court with the directed verdict motion, without actually filing it, would have sufficed.

      . We emphasize that this decision in no way condones the practice of deviating from the mandates reflected in the Rules of Civil Procedure. Rather, the outcome of this issue is confined to the facts of the case.

      . § 322. Invitee Defined
      (1) An invitee is either a public invitee or a business visitor.
      (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
      (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
      § 330. Licensee Defined.
      A licensee is a person who is privileged to enter or remain in land only be virtue of the possessor’s consent.

        See comment H(3).

      . Our decision of the issue concerning the propriety of the jury instructions given forecloses the need to address the remaining charges of error advanced by Appellant.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    519 A.2d 493
    Rosalie C. CASPER v. William R. CASPER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1986.
    Filed Dec. 22, 1986.
    Lawrence P. Lutz, Butler, for appellant.
    David L. Cook, District Attorney, Butler, for appellee.
    Before ROWLEY, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

In this case appellant William Casper petitioned the lower court to modify or terminate the provisions of a support order alleging substantial change in circumstances. On June 28, 1985, the court denied his petition. It is that order from which this appeal lies.

The parties to this case were married on June 24, 1945. Various marital difficulties resulted in the filing of a Complaint in Divorce in 1975. Prior to a divorce being entered, the parties entered into an agreement which settled questions of property distribution, support for wife and children, and custody. (“Agreement”) This agreement was adopted and entered as an Order of Court on December 10, 1975. (“December 10 Order”) This order required that all support payments set forth in the Agreement be paid to the Butler County Domestic Relations Department as required by the terms of the Agreement.

At the time the Agreement was entered, Pennsylvania law did not provide for post-divorce alimony to a dependent spouse. Prior to enactment of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, effective in 90 days, 23 P.S. §§ 101-801 (“Code”), a husband’s duty to support his wife ceased upon dissolution of the marriage unity. In order to provide for the needs of a dependent spouse, appellee in this case, divorcing couples entered into agreements such as the one at issue here.

The Divorce Code of 1980 provides, under certain circumstances, for the legal right of a dependent spouse to receive alimony from the supporting spouse even after the divorce has been finalized. See 23 P.S. § 501. Section 501(e) provides for the modification of orders granting alimony “upon changed circumstances of either party of a substantial and continuing nature.” Based on this section of the Code appellant alleges his right to modification or termination of the December 10 Order. He argues that because the underlying agreement was entered as an order of court to be paid through and enforced by the Domestic Relations Department, it was one modifiable by the terms of section 501(e). This argument overlooks the clear language of section 103 of the Code which states that the Code shall not affect any marital agreement executed prior to the effective date of the act. See 23 P.S. § 103. Here, the Agreement was entered in 1975, nearly five years prior to the effective date of the act in 1980. See Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985) (Where both divorce decree and property distribution order were entered prior to effective date of Divorce Code, the Code did not apply.) See also, Cohen v. Cohen, 352 Pa.Superior Ct. 453, 508 A.2d 561 (1986) (Section 103 proscribes the enlargement of a party’s substantive rights in a case that has become final before the effective date of the Divorce Code of 1980.)

While we agree with the result reached by the lower court, we do not adopt its reasoning. That court treated this case as one to be decided under the Code, rather than according to the old divorce law. The lower court concluded that an order integrating an award of alimony with equitable distribution is not modifiable citing Fleming v. Fleming, 130 P.L.J. 68 (C.P.Alleg.Co.1982) and Capponi v. Capponi, 132 P.L.J. 583 (C.P.Alleg.Co.1984). In the alternative, the lower court stated that it would not rewrite the parties contract on the authority of Litwack v. Litwack, 289 Pa.Superior Ct. 405, 433 A.2d 514 (1981) (A pre Code case which holds that separation agreements are to be construed as contracts.).

In accordance with the direction provided by the Code we must look to the law in effect prior to the Code to determine the substantive rights of the parties to this case.

The longrstanding law of this Commonwealth is that support agreements, as well as postnuptial, antinuptial and separation agreements, are presumed to be valid and binding on the parties. See Hollinan v. Hollman, 347 Pa.Superior Ct. 289, 300, 500 A.2d 837, 843 (1985) (citing cases); Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); McGannon v. McGannon, 241 Pa.Superior Ct. 45, 359 A.2d 431 (1976). “Under prior law, the party seeking to nullify such an agreement had the burden of proving, by clear and convincing evidence, either that a reasonable provision for the claiming spouse was not made at the time of the agreement or, in the absence of such a provision, a full and fair disclosure of the other spouse’s worth had not been made.” Wolfe v. Wolfe, 341 Pa.Superior Ct. 313, 317, 491 A.2d 281, 283 (1985), citing Ratony Estate, 443 Pa. 454, 277 A.2d 791 (1971). Generally, such agreements are governed by the law of contracts.

Appellant claims that because the agreement was merged into an order of court it should not be treated as a contract which created an independent source of obligation. Rather, appellant argues, the obligations created by the court order should be modifiable as any other support order. The fallacy of appellant’s argument is in his assertion that any court order which ostensibly imposes support obligations on one party may be modified at the court’s discretion upon petition by an aggrieved party alleging changed circumstances. This was not the law of the Commonwealth under the old divorce law.

Our courts have long recognized the difference between “court ordered support” and orders which include the terms of a mutually agreed upon support agreement. In Bell v. Bell, 228 Pa.Superior Ct. 280, 323 A.2d 267 (1974), this court affirmed the modification of a support order which had been imposed by the lower court following a full hearing. That action was governed by 17 P.S. § 263 (now repealed), which provided for the modification or repeal of any order made by a court for support of a wife or child upon the showing of changed circumstances. Under a different factual scenario, however, an order which merely incorporates the terms of a mutually agreed upon support agreement "will not be modified merely upon the showing of changed circumstances.

We find the language in Commonwealth ex rel. Fleming v. Fleming, 288 Pa.Superior Ct. 504, 432 A.2d 626 (1981), a case decided under the old divorce law, to be particularly instructive on the issue sub judice. In Commonwealth ex rel. Fleming v. Fleming, the parties, formerly married, entered into an property settlement agreement, later entered as an order of court, which included elements of child and spouse support. The husband sought modification of his obligations under the agreement. In deciding the issue, this court stated, “In the case before us, Mr. Fleming’s responsibility to pay money to Mrs. Fleming is governed by the law of contract and not of domestic relations ... The agreement provided for such payments and set the respective amounts thereof; the parties were apparently satisfied that these obligations were subsumed within it, for no separate adjudications of support were requested.” 288 Pa.Superior Ct. at 508-09, 432 A.2d at 628. The same reasoning applies to the case at hand.

Another similar situation was addressed in Sarsfield v. Sarsfield, 251 Pa.Superior Ct. 516, 380 A.2d 899 (1977), where the parties entered into a postnuptial agreement, the exact wording of which was entered as an order of court by consent of both parties. The husband appealed from the consent order and this court stated:

This court ruled in Baran v. Baran, 166 Pa.Super. 532, 537, 72 A.2d 623 (1950)—
“A decree entered by consent of the parties is so conclusive that it will be reviewed only on a showing that an objecting party’s consent was obtained by fraud or that it was based upon a mutual mistake.”

251 Pa.Superior Ct. at 519, 380 A.2d at 901.

The essence of the reasoning found in these and similar cases was well stated in Schifano v, Schifano, 324 Pa.Superior Ct. 281, 471 A.2d 839 (1984) (following Ohio law):

“ ‘This rule of finality of judgments is especially applicable to divorce judgments where there is an agreement which is incorporated into the journal entry of the trial court and where the trial court has not reserved jurisdiction to modify. The reason that such a decree is final and the court does not have continuing jurisdiction to modify it is that the parties voluntarily entered into a legally binding and enforceable contract. Where parties enter into an agreement and it is submitted to the court, approved and incorporated into a divorce decree, justice requires that the agreement be binding upon both parties.’ ” Vaught v. Vaught, [ ]2 Ohio App.3d [264] at 266, 441 N.E.2d [811] at 813 quoting Popovic v. Popovic, 45 Ohio App.2d 57, 64, 341 N.E.2d 341, 346 (1975).

324 Pa.Superior Ct. at 290, 471 A.2d at 844.

The Agreement here clearly demonstrates the parties’ intent to create a contractual obligation independent of the obligation to pay court-ordered support. The purpose of the Agreement was stated: “[I]t is the desire of the parties hereto to arrange for and enter into an agreement to settle their respective property rights, custody and support of their minor children, and all other differences which have arisen in their marriage.” The agreement provides for a certain level of support payments to be made to the wife prior to the finalization of the divorce decree and a different level of payments to be made following that event. The agreement also empowers the Butler County Domestic Relations Office to withdraw funds from a trust fund as necessary to maintain the monthly payments agreed upon. The order provides for pre-divorce support payments to be made directly to the Domestic Relations Division, but the post-divorce payments were to be made directly to appellee. Finally, the last paragraph of the agreement provides for the agreement to be made into an order of court.

The analysis to be followed in these cases is to look to the terms of the agreement to determine whether the parties intended it to be modified. There is nothing in the language of this agreement which would indicate that the parties intended the agreement to merge into the court order so as to afford only court ordered support, since the amount of court ordered support is always modifiable.

The general purpose for entering a support agreement as a court order is to enlist the equitable powers of the court in enforcing future payment of the obligations subsumed in the agreement/order. See Sarsfield v. Sarsfield, supra. Although the agreement continues to be interpreted as a contract, the support order may be enforced by contempt proceedings pursuant to Rule 1910.12, Pa.R.Civ.P., wage attachment pursuant to Rule 1910.22, and execution upon judgment for arrears pursuant to Rule 1910.23. See Holl-inan v. Hollinan, supra. Accord: 23 P.S. § 503.

The separation agreement here is a detailed agreement covering all aspects of the economic relationship of the parties. We believe that the following principles enunciated by this court in IAtwack apply also in this case.

No assertion of fraud or mistake attendant upon the execution of the separation agreement is made. So long as a separation agreement stands unimpeached, the court cannot alter or change a provision for separate maintenance and support of the wife without the consent of both parties ... [Ajbsent such impeachment, there is not authority for the court to cancel a contract made by the parties and in its place substitute one which it thinks proper but which as a matter of fact the parties had never assented to.

Litwack v. Litwack, 289 Pa.Superior Ct. at 409, 433 A.2d at 516.

We must conclude that if the parties had intended the Agreement to be modifiable upon a change in circumstances, they could have so provided.

Order affirmed.

DEL SOLE, J., concurs in the result.

      . At all times relevant to this proceeding there are no minor children to be provided for.

      . See Pennsylvania Divorce Law, Act of May 2, 1929, P.L. 1237, 23 P.S. §§ 1-69 (as amended); Watson v. Watson, 243 Pa.Superior Ct. 23, 364 A.2d 431 (1976).

      . The lower court conducted an evidentiary hearing at which appellant presented evidence of what appears to be substantial changes in the earning capacities of himself and appellee.

      . The old Pennsylvania Divorce Law did not allow post-divorce alimony. Payments to Mrs. Casper following the parties’ divorce are neither support nor alimony but merely Mr. Casper’s contractual obligation. We shall not compound the confusion engendered by the lower court’s reference to these obligations as “support’’ or “alimony".

      . This case is not related to Fleming v. Fleming, supra, 130 P.L.J. 68.

      . Appellant argues that the result reached in Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Superior Ct. 359, 474 A.2d 41 (1984), compels the result he requests. Tokach was a case dealing with modification of a child support agreement, an issue which encompasses very different policy consideration. Accord: Commonwealth ex rel. Snively v. Snively, 206 Pa.Superior Ct. 278, 281, 212 A.2d 905, 906 (1965) (public policy prohibits a parent from waiving a child’s right to support.); Commonwealth ex rel. Rossi v. Rossi, 161 Pa.Superior Ct. 86, 89, 53 A.2d 887, 888 (1947) (same result). The application of Tokach has been limited to its facts, see Madnick v. Madnick, 339 Pa.Superior Ct. 130, 488 A.2d 344 (1985), and we do not find it to be controlling in this case.


author: HOFFMAN, Judge:

text:
    519 A.2d 497
    COMMONWEALTH of Pennsylvania v. Robert P. McCABE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 25, 1986.
    Filed Dec. 29, 1986.

      Mark Pinnie, Media, for appellant.
    Yram Nedurian, Jr., Assistant District Attorney, Newton Square, for Com., appellee.
    Before WATKINS, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the order of the court below denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant contends that the lower court erred in denying his petition because (1) his trial counsel and counsel for his petition to set aside an illegal sentence were ineffective for failing to preserve for review the issue whether he was illegally sentenced for both the offense of assault with intent to kill and the offense of assault with intent to maim because the two convictions arose from a single criminal act and, thus, merge for sentencing purposes; and (2) he did not waive his right to post-conviction relief by filing his PCHA petition ten years after he was sentenced and six years after our Supreme Court affirmed the denial of his petition to set aside an illegal sentence. We agree and, accordingly, vacate the judgment of sentence for assault with intent to maim.

Appellant was found guilty of assault with intent to kill, assault with intent to maim, and conspiracy following a jury trial on June 19, 1973. On December 21, 1973, he was sentenced to three-and-one-half-to-seven years imprisonment for assault with intent to kill, two-and-one-half-to-five years imprisonment for assault with intent to maim, and one-to-two years imprisonment for conspiracy, the sentences to run consecutively. This Court affirmed the judgment of sentence. Commonwealth v. McCabe, 229 Pa.Superior Ct. 758, 325 A.2d 641 (1974), and our Supreme Court refused allocatur.

In 1975, appellant, represented by new counsel, filed a “Petition to Set Aside Unlawful Sentence” alleging that his sentences for both assault with intent to kill and assault with intent to maim were illegal because the offenses merged as a matter of law. The trial court denied the petition on the ground that appellant had waived the sentencing issue by failing to present it during post-trial motions. Lower Court Opinion, December 4, 1975 at 3. This Court affirmed with two judges dissenting. Commonwealth v. McCabe, 242 Pa.Superior Ct. 413, 364 A.2d 338 (1976) (HOFFMAN, J., dissenting joined by SPAETH, J.). Our Supreme Court affirmed without an opinion. 479 Pa. 273, 388 A.2d 323 (1978). On December 18, 1984, appellant filed the instant petition, which the trial court denied, and this appeal followed.

Appellant first contends that both of his former counsel were ineffective for failing to preserve for appeal the issue whether his sentences for assault with intent to kill and assault with intent to maim were illegal because the two offenses merge for sentencing purposes. We agree with appellant’s contention. In evaluating the effectiveness of counsel’s representation, we must first determine whether the underlying issue has arguable merit. Commonwealth v. Pierce, 345 Pa.Superior Ct. 324, 331, 498 A.2d 423, 425 (1985) (en banc), allocatur granted. If the claim has merit, the court must determine whether the course chosen by counsel had some reasonable basis aimed toward promoting the client’s interests. Id. In addition, an appellant must show that counsel’s ineffectiveness prejudiced his case. Id., 345 Pa.Superior Ct. at 334, 498 A.2d at 428.

Here, the underlying issue is whether the offenses merge for sentencing purposes. A person may not be twice placed in jeopardy for the same offense. Pa. Const, art. 1 § 10. The double jeopardy clause prohibits multiple punishment for a single offense. Commonwealth v. Williams, 344 Pa.Superior Ct. 108, 116, 496 A.2d 31, 36 (1985) (en banc) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)). When a single criminal act constitutes a violation of two distinct statutory provisions it is a single offense for double jeopardy purposes unless one provision requires proof of a fact that the other does not. Id. In order to determine whether there has been but one punishable offense, we must examine the elements of the offenses charged and determine whether proof of one offense necessarily proves the other. Id. 344 Pa.Superior Ct. at 177-78, 496 A.2d at 36-37.

In 1972, when appellant was charged, assault with intent to kill was defined as follows:

[wjhoever administers, or causes to be administered by another, any poison or other destructive thing or stabs, cuts or wounds any person, or by any means causes any person bodily injury, dangerous to life, with intention to commit murder, is guilty of a felony____

18 P.S. § 4710 (repealed 1972). Assault with intent to maim was defined as follows:

[wjhoever unlawfully and maliciously, shoots at any person, or, by drawing a trigger or by any other manner attempts to discharge any kind of loaded arms at any person, or stabs, cuts or wounds any person, with intent to maim, disfigure or disable such person is guilty of a felony____

Id. § 4712 (repealed 1972). An examination of the two statutes reveals that proof of assault with intent to kill necessarily proves assault with intent to maim. Moreover, in Commonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 142 A. 317 (1928), our Supreme Court set aside a sentence for assault with intent to maim because the defendant had been sentenced for assault with intent to kill and the two offenses had arisen from a single act. Id., 293 Pa. at 324-25, 142 A. at 318. There, as here, the crimes arose from the same transaction and differed only in degree. Id. Thus, we conclude that appellant should not have been sentenced for both assault with intent to kill and assault with intent to maim. In addition, appellant’s former counsel were ineffective for failing to raise this issue because it has merit, trial counsel failed to offer a reasonable basis at the PCHA hearing for not raising it, and appellant was prejudiced in that he received two punishments for a single punishable offense.

Appellant also contends that he did not waive his right to raise this issue by waiting until 1984 even though his last appeal was final in 1978. The lower court determined that a lapse of time in filing a PCHA petition is a factor in determining its merits. Lower Court Opinion, April 3, 1983 at 4. While it is true that delay in filing a petition may be a factor in considering the merits of the claims raised in the petition, see e.g., Commonwealth v. Alexander, 495 Pa. 26, 36, 432 A.2d 182, 186 (1981); Commonwealth v. Courts, 315 Pa.Superior Ct. 108, 134, 461 A.2d 820, 833 (1983), allocatur denied, it is not a factor in determining whether or not a court should even consider the claims raised in a first PCHA petition. See Commonwealth v. Taylor, 348 Pa.Superior Ct. 256, 260-62, 502 A.2d 195, 197-98 (1985) (court erred in finding claims raised in first PCHA petition barred from consideration by laches or waiver). The PCHA provides that “[a]ny person who desires to obtain relief under the [PCHA] may initiate a post conviction proceeding by filing a petition____ [H]e may file a petition at any time.” 42 Pa.C.S.A. § 9545(a) (emphasis added). Moreover, our Supreme Court has held that the concept of laches has no place in the criminal law. Commonwealth v. Doria, 468 Pa. 534, 542, 364 A.2d 322, 326 (1976) (appellant filed first PCHA petition fourteen years after conviction). Accordingly, appellant’s claim is not barred by his delay in raising it..

In response to appellant’s contentions, the. Commonwealth argues that the doctrine of the law of the case prevents this Court from considering the merits of appellant’s petition. This argument is meritless. The issue raised here, whether appellant’s former counsel were ineffective, is raised for the first time and, thus, the law of the case has no application.

For the above-stated reasons, we vacate the judgment of sentence for assault with intent to maim and affirm the judgment of sentence for assault with intent to kill.

Judgment of sentence for assault with intent to maim vacated. Judgment of sentence for assault with intent to kill affirmed.


author: BROSKY, Judge: MONTEMURO, Judge,

text:
    519 A.2d 500
    Casimir TOCZYLOWSKI v. GENERAL BINDERY CO. and City of Philadelphia and Joseph Kots. Appeal of Joseph KOTS.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1986.
    Filed Dec. 29, 1986.

      Claudia M. Tesoro, Assistant City Solicitor, Philadelphia, for appellant.
    John F. Dougherty, Jr., Philadelphia, for General Bindery Co.

      Lloyd George Parry, Philadelphia, for appellee.
    Before CAVANAUGH, BROSKY, and MONTEMURO, JJ.
   BROSKY, Judge:

This is an appeal taken from the entry of an order on March 10, 1986 vacating judgment of non pros. Appellant contends that the trial court abused its discretion in so vacating, alleging: (1) that the ninety-seven (97) day filing delay between the entry of non pros and the petition to vacate was never reasonably explained, making the petition untimely; (2) that the failure of appellee’s former counsel to appear at the Philadelphia call of the list, which resulted in the entry of non pros, was unreasonable; and (3) that the facts alleged in support of appellee’s cause of action were legally insufficient to support vacation of non pros.

Upon review of the record, we are in agreement with appellant that the behavior of appellee’s former counsel, with respect to (1) and (2) above, was not reasonably explained, and, as such, we now reverse the trial court and reinstate the judgment of non pros.

Appellee’s original complaint was filed as a major jury defamation action on January 7, 1982, naming General Bindery Co., Inc., the City of Philadelphia, and Joseph Kots (herein “appellant”) as party defendants. During the pleadings stage, both the City of Philadelphia and appellant Kots filed preliminary objections, and an amended complaint was filed. The City of Philadelphia’s preliminary objections were granted, but appellant Kots’ were denied; Kots then filed an answer.

According to the docket entries, the last action taken connected to this claim, by any party, was in December, 1982. The case was then silent until July 7, 1985, when a letter was dispatched to appellee’s former counsel from the court administrator’s office in Philadelphia, stating, in relevant part:

Dear Counselor,
It is contemplated that the above case will be assigned for trial on the individual judge program in the very near future.
Accordingly, it will be necessary for you as counsel for plaintiff, to fill out and return the enclosed information sheet no later than two (2) weeks from this date. ***** *
Very truly yours,
Harry A. Takiff, J.
Court Administrator

However, prior to any “contemplated” assignment to an individual judge, the case was assigned to the major jury list, and, on October 4, 1985, appeared on the list under the “New Listings” heading. By October 7, the case had moved into the older listings, at number 87. The case proceeded to move up the list until, on October 16, the case was at number 11, or within the top fifteen, and was called for trial. On each day the case was listed on the major jury list, the following “Notice to the Bar” appeared on the front page of Philadelphia’s Legal Intelligencer, the official publication for all notices to the Bar.

Civil Trial Pool

To assure maximum effectiveness of the Civil Individual Judge Program, we are supplementing it with a master pool from which cases will be assigned to judges who are available from time to time for assignments when their individual lists permit, as well as judges who will be assigned cases from the master pool list only.

There will appear daily in The Legal Intelligencer a list of approximately 360 cases consisting of 105 major jury, 105 general jury, 75 major nonjury and 75 general nonju-ry cases, selected in chronological order based on first filing date. Based on the procedure described above, it is anticipated that these lists will move actively.

The call of the list will be held in Courtroom 907, Five Penn Center, promptly at 9 a.m. Counsel in the first 15 cases on each list must appear to answer. The rules governing continuances will be strictly enforced.

Edward J. Bradley

President Judge

Judge Harry A. Takiff

Court Administrator

(Emphasis supplied). Despite this notice, appellee’s former counsel was not present at the October 16 call of the list. Appellant’s counsel, who was present, motioned that a judgment of non pros be entered. The Honorable Harry A. Takiff, who was presiding at the call of the list, granted the motion.

Ninety-seven (97) days later, on January 21, 1986, appel-lee, represented at that time by present counsel, filed a petition to vacate the entry of non pros. The petition, which included an affidavit from former counsel, averred that: (1) former counsel, upon receipt of the July 7 letter from the court administrator’s office, had begun to monitor the individual judge calendars, as printed in the Legal Intelligencer, exclusively, and never saw the major jury listing; (2) former counsel, who was in the process of an employment and address change, did not receive notice of the entry of non pros until December 11, 1985; and (3) present counsel had just been transferred the case as of January 21, 1986, and was entering his appearance and filing the petition to vacate in as prompt a fashion as could be expected under the circumstances. Both General Bindery Co., Inc. and appellant Kots opposed the petition as unreasonable. The petition was granted on March 10, and appellant only filed this timely appeal.

A petition to open a judgment of non pros is addressed to the court’s equitable power, and the exercise of those powers will not be disturbed absent an abuse of discretion. Hutchinson v. Hutchinson, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). However, before a court may open a judgment, the party seeking vacation must demonstrate that: (1) the petition to open was timely filed; (2) the default which occasioned the entry of judgment can be reasonably explained; and (3) the facts constituting grounds for a cause of action are alleged. Horan v. R.S. Cook and Associates, Inc., 287 Pa.Super. 265, 268, 430 A.2d 278, 279 (1981); Corcoran v. Fiorentino, 277 Pa.Super. 256, 260, 419 A.2d 759, 761 (1980); Dupree v. Lee, 241 Pa.Super. 259, 262, 361 A.2d 331, 333 (1976). In his attack upon the vacation of non pros, appellant alleges that appellee failed to satisfy any of the above criteria. With respect to criteria (1) and (2), the history of this case supports appellant’s allegations.

With regard to the initial criterion, which specifies that a petition to vacate must be promptly filed, the trial court found that appellee’s former counsel had been in the midst of an office relocation, and, as such, appellee had reasonably explained the delay in the filing of the petition now at issue. However, a review of the relevant factual background simply does not support the trial court’s finding of a reasonable delay. While it is undisputed that former counsel was in the process of an office relocation at some point in time prior to December 11, 1985, it is also admitted that counsel received notice of the entry of non pros on December ll. No further action was taken until the January 21, 1986 filing of a petition to vacate. There is simply no support in the record that the relocation in any way precluded former counsel from filing the petition to vacate well in advance of the January 21, 1986 filing by present counsel. Accordingly, we are confronted, by this appeal, with an unexplained delay of forty-one (41) days. While a delay of this length is not, in and of itself, so terribly long as to defy any attempt at explanation, it has not been explained at all, and, as such, cannot be deemed reasonable. See Hatgimisios v. Dave’s N.E. Mint, Inc., 251 Pa.Super. 275, 276-277, 380 A.2d 485, 486 (1977) (unexplained delay of thirty-seven days “too long”); also see Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 538, 375 A.2d 368, 371 (1977) (unexplained forty-seven day delay in petitioning to open default judgment “unreasonable”). We hold, therefore, that the trial court abused its discretion in finding that the present petition was promptly filed.

Furthermore, were we to defer to the trial court’s finding that the petition was prompt, we would, nonetheless, be confronted with the second criterion for vacation: the giving of a reasonable explanation or excuse for the incident that occasioned the default. We feel that appellee has failed to demonstrate any reasonable excuse for the absence of counsel from the call of the list, and hold that the second requirement for vacation has also not been met.

The trial court found that the absence of former counsel was occasioned, primarily, from some “confusion” created by the language of the July 7, 1985 letter from the court administrator, and that the absence, hence, was “reasonable”. We disagree.

The Legal Intelligencer is the official periodical for publication of all notices to the Philadelphia Bar. Philadelphia Local Rule of Civil Procedure 100(A); Triangle Pacific Philadelphia Corp. v. Trident Enterprises, Inc., 495 Pa. 427, 429, 434 A.2d 1165, 1166 (1981). It is incumbent upon a Philadelphia practitioner to be familiar with the Intelligencer and its contents, particularly those sections which govern the practice of litigation in the Philadelphia courts. The letter received from the court administrator’s office by former counsel merely indicated that an assignment to an individual judge was being “contemplated.” Though potentially confusing, it did not excuse counsel from her duty to be knowledgeable concerning other portions of the Intelligencer, which clearly stated, in its “Notice to the Bar”, that individual judge assignments were only being made on occasion from the master lists. As such, former counsel was not excused from her duty to monitor the master lists; it was her duty, as a diligent practitioner, to monitor the master major jury list and the individual judge calendars.

Her duty to have so performed is further buttressed by Philadelphia Local Rule of Court 200, which governs the assignment of cases for trial:

(A) Civil Case Categories.
Until such time as Civil Cases are assigned to an Individual Judges upon the commencement of an action, they shall be placed on one of the following lists as appropriate:
(1) Major Jury List — consisting of all cases not in Arbitration in which a jury trial has been demanded.
(2) General Jury List — consisting of all cases in which a jury trial demand has been properly filed and a jury listing fee paid: (a) on appeal from Arbitration determinations to the Common Pleas Court; or (b) which may not be submitted to Arbitration because of substantive or procedural legal principles.
(3) Equity/Non-Jury List — consisting of all equity cases and all cases in which a jury trial has been waived.
(4) Asbestos Cases after appeal from Non-Jury verdicts.
All cases shall be placed on such lists in chronological order according to the term and number of the case.
(B) Assignment of Cases.
(1) The Civil Cases on the Lists shall be assigned to individual judges for all pre-trial and post-trial purposes on a random basis until such time as all of the cases are assigned. Such assignments shall be made to participating Judges four times yearly. Each assignment shall consist of one hundred cases, in chronological order, taken from the trial lists set forth in Section A of this Rule.
(2) Upon exhaustion of the Civil Cases on the Lists, all Civil Cases shall be assigned on a random basis to an individual judge for all pre-trial, trial and post-trial purposes upon institution of suit.

(Emphasis supplied).

Clearly, Local Rule 200 outlines in no uncertain terms that cases are to be placed on the appropriate master lists prior to any assignment to an individual judge’s calendar and that only “upon exhaustion” of the master lists are the individual judge assignments made. As such, the rule imposes upon a Philadelphia practitioner a need for watchfulness with respect to the civil trial listings in the Intelli-gencer, as opposed to the type of limited scrutiny which was applied by appellee’s former counsel.

In light of the foregoing, it is inconceivable to this Court that former counsel’s excuse for non-appearance, i.e. the letter, can be deemed reasonable. A litigator is under an obligation to keep abreast of publications to the bar, such as the Intelligencer, as well as local rules of court. While we may be somewhat sympathetic to the difficulties former counsel may have encountered in relocating her practice and resuming work, these considerations simply do not permit us to find that a reasonable excuse for the mistake has been given. A counsel’s preoccupation with dissolving his law firm and establishing his own practice has never constituted a reasonable excuse for default, see Horan, supra, 287 Pa.Super. p. 279, 430 A.2d 278, nor have the “burdens of litigation” excused counsel from proceeding diligently, see King v. Fayette Aviation, 226 Pa.Super. 588, 590, 323 A.2d 286, 287 (1974). To permit former counsel to advance such neglect of her duties as “reasonable excuses” would merely interfere in the “orderly administration of justice”, Dupree, supra, 241 Pa.Superior Ct. p. 266, 361 A.2d p. 335, as viewed by the appellate courts of this Commonwealth.

Accordingly, the Order is vacated. Judgment of non pros is reinstated.

MONTEMURO, J., files a dissenting statement.

MONTEMURO, Judge,

dissenting:

I dissent. Finding no abuse of discretion, I would affirm on the Opinion of the Honorable Harry J. Takiff.

      . An amended order was entered on May 16, 1986, which was merely intended to correct a formal error with respect to the date upon which the judgment of non pros was entered. Such amendment is authorized by Pa. Rule of Appellate Procedure 1701(b)(1), and does not affect the time for the filing of an appeal. Appellant filed the instant appeal on March 12, 1986. This filing was timely, and appellant was not required to refile after the May 16 amended order.
      For purposes of clarity, we wish to point out that the amended order again misstates the date of the entry of non pros, which was, in reality, October 16, 1985. We assume the error to be merely typographical, as the amended order gives the date as October 6, 1985.

      . Appellee claimed damages in excess of the compulsory arbitration limits, and demanded a jury trial. As such, the action qualified as a major jury case under Philadelphia Local Rule of Court 200(A)(1).

      . General Bindery Co. Inc. chose to file an answer to the amended complaint, and has remained, throughout, a party to these proceedings.

      . See Philadelphia Local Rule of Civil Procedure 100(A).

      . Because of our resolution of the issues raised by the first two criteria for vacation, we needn’t address the third, concerning the sufficiency of the facts alleging the grounds for the cause of action.

      . R.R., p. 4.

      . Brief for appellee, p. 2.

      . As former counsel was already receiving her forwarded mail as of December 11, 1985, we can only conclude that counsel’s relocation was sufficiently complete to permit counsel resumption of her affairs. This conclusion has not been disputed by appellee either below or on appeal to this Court. Rather, appellee has been totally silent with respect to the conduct of former counsel's affairs between December 11, 1985 and January 21, 1986.


author: TAMILIA, Judge:

text:
    519 A.2d 505
    COMMONWEALTH of Pennsylvania, Appellant, v. Reginald HARRIS.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed Dec. 24, 1986.

      Deborah Fleisher, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Karen S. Kelly, Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

Appellee, a fifteen-year old juvenile, was charged with murder, voluntary and involuntary manslaughter, and possession of an instrument of crime. Following a not guilty plea to all charges at his arraignment, trial began on May 19, 1986. On that day, the trial judge granted appellee’s motion to suppress his confession. The matter before this Court is the Commonwealth’s interlocutory appeal from the suppression Order, which the Commonwealth certifies substantially handicaps the prosecution.

Appellee had been arrested at his home for allegedly stabbing an eighteen-year old male. At the police station a juvenile aid division police officer read appellee his Miranda rights in the presence of appellee’s mother. The lower court found that “[ajfter the warnings were given but before the questioning began, mother and son were allowed five minutes to confer” and that at this time the mother “was ignorant of the details of the stabbing incident.” (Slip Op. Richette, J., 7/24/86, p. 3). While the officer knew of the extremely serious medical condition of the victim, and that the victim was being operated on for two stab wounds located in the back and chest, neither the appellee nor his mother were aware of these facts nor were they aware of the possibility of adult certification under the Juvenile Act, 42 Pa.C.S. § 6355.

After their five minute conference the officer interrogated appellee, in his mother’s presence, for approximately an hour and a half. Appellee gave an inculpatory statement which was simultaneously typed by the officer and, after being read by appellee and his mother, was signed by both of them. Immediately after the interview the police informed appellee and his mother that the victim had died. The lower court found that it was unclear when either the interrogating officer or other police personnel learned of the death. (Slip Op. at 4). The police then charged appellee with murder and gave appellee and his mother Miranda warnings again. At that time, both appellee and his mother elected not to give further statements and requested a lawyer.

Applying the totality of the circumstances standard, the trial judge suppressed the inculpatory statement finding that the appellee’s waiver of his constitutional rights was unknowing and, therefore, invalid because the police had failed to notify appellee and his mother of the possible adult certification. The trial court held that juvenile defendants “must be apprised of possible adult certification.” (Slip Op. at 7). It is not contended that the statement was secured through coercive tactics.

In order to have a valid waiver of Miranda rights, the suspect must have an awareness of the general nature of the transaction giving rise to the investigation. Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553 (1977); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Hart, 266 Pa.Super. 190, 403 A.2d 608 (1979). As the Supreme Court stated in Dixon, supra:

It is clear from Richman, however, that the suspect need not have knowledge of the ‘technicalities’ of the criminal offense involved; rather, it is necessary only that he be aware of the ‘transaction’ involved____ Neither does the Richman holding establish a ‘fifth Miranda warning’; that is, there is no prophylactic requirement that the interrogating officers affirmatively provide information to the suspect as to the crime under interrogation.

Id. 475 Pa. at 22, 379 A.2d at 556. Here, the appellee and his mother were advised of the general nature of the transaction giving rise to appellee’s arrest and interrogation, i.e., the stabbing of the victim.

Under circumstances similar to those present here, the Supreme Court, in Commonwealth v. Swint, 450 Pa. 54, 296 A.2d 777 (1972), held that the giving of Miranda warnings, accompanied with an awareness of the general nature of the transaction being investigated, allowed a juvenile suspect enough information to give a valid waiver of his rights with a full understanding on his part. In Swint, the appellant/juvenile had been informed at the time of his arrest that he was being arrested for the stabbing of another juvenile. While it is clear from the court’s opinion that the appellant/juvenile’s mother was informed that the victim was in critical condition and might die, the court does not say whether the appellant knew. Id., 450 Pa. at 59, 296 A.2d at 779. After being given his Miranda warnings, the juvenile proceeded to make oral inculpatory statements and later both he and his mother signed a written inculpatory statement.

In response to the appellant’s argument that he did not knowingly and intelligently waive his right to self-incrimination because he was never warned of the possibility he would be charged with murder, the Supreme Court stated:

While the police did not delineate with exact precision the crime for which Swint was eventually tried, the circumstances at the time did not permit such clarity. At the time of all of the questioning, [the victim] was still alive, albeit in critical condition. The fact that Swint was told he was being interrogated concerning the stabbing conveyed enough information about the nature of the crime to aid in making a waiver with a full understanding.

Id., 450 Pa. at 59, 296 A.2d at 780. Here, the victim was also alive during the interrogation of appellee thus, as in Swint, the circumstances at the time did not allow the police to clarify the charge against appellee. Therefore, based on these findings, we reverse the trial court’s suppression Order.

Further, we find no constitutional need nor justification for the lower court’s requirement that juvenile defendant’s “must be apprised of possible adult certification.” We feel this holding is in full accord with Dixon, supra, and the United States Supreme Court’s Opinion in Oregon v. El-stad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

In Elstad, the Court, by a six to three decision, held that a suspect who has once responded to warned, yet uncoer-cive, questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. Upon his arrest, the defendant/respondent made an incriminating statement without having been given the required Miranda warnings. Later, after he was advised of and waived his Miranda rights, the respondent executed a written confession. The central issue in Elstad, ultimately answered in the negative, became whether the second statement should be suppressed based on the “taint” of the initial failure of law enforcement officials to administer the required Miranda warnings. In response to the respondent’s argument that he was unable to give a fully “informed” waiver of his rights before making the second confession because he was unaware that his prior statement could not be used against him, the Court stated:

This Court has never embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness. ... Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and the quality of the evidence in the case.

Id. at 316, 105 S.Ct. at 1297, 84 L.Ed.2d at 237. The Court specifically held that it was neither practicable nor constitutionally necessary for the law enforcement officer to add an additional warning to the Miranda requirement concerning the legal question of whether the first statement was admissible after a breach of Miranda procedures.

Accordingly, we reverse and remand for trial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: DEL SOLE, Judge:

text:
    519 A.2d 507
    Lisa REIDER, Appellant, v. Frank A. MARTIN, John Brzyski and J.T.B. Associates, a partnership, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1986.
    Filed Jan. 5, 1987.

      Daniel K. McCarthy, Allentown, for appellant.
    Edward J. McKarski, Easton, for appellees.
    Before McEWEN, DEL SOLE and TAMILIA, JJ.
   DEL SOLE, Judge:

During the academic year of 1982-1983, Appellant, a Lehigh University senior, rented one of three apartments located at 28 East Third Street, Bethlehem, Pennsylvania, owned by Appellees. On or about February 4, 1983, Appellant was raped, beaten, and robbed in the stairway outside her apartment. The perpetrator, one Melvin Dean Smith, had entered the building through an unsecured front door and followed Appellant up the stairs as she entered her apartment building.

Appellant commenced this civil action for damages, alleging that Appellees were negligent in failing to supply the apartment building with an operative front door lock. On numerous occasions prior to the February 4, 1983 incident, Appellees were informed by Appellant and other tenants that the front door lock of the building was inoperative and requested that the lock be repaired or replaced. In response, Appellees notified their tenants that the necessary repairs and/or replacements would be performed. Despite these repeated assurances, the lock remained in disrepair up to the night of the rape and assault. Appellant contends that, as a result of Appellees’ negligence, she sustained severe psychological injuries, humiliation, pain and suffering, loss of income and deprivation of life’s pleasures.

A jury trial commenced on April 22, 1985 in which Appellant was ordered to first present her case on liability. Two days of testimony were presented on Appellees’ notice of the defective lock, their assurances that they would repair the lock, and their failure to do so. Following this testimony, Appellees presented before the trial court a Motion for Compulsory Nonsuit. Thereafter, the nonsuit was granted based upon the court’s interpretation of the case of Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). In Feld, our Supreme Court held that no general duty of a landlord exists to protect tenants against criminal instrusion; however, if a landlord agrees, or voluntarily proffers protection in order to attract or keep tenants, the landlord may incur such a duty. Id. at 506 Pa. 392-394, 485 A.2d 747.

Appellant filed a Motion for Post-Trial Relief on May 2, 1985 which requested the trial court to remove the nonsuit. Appellant’s Motion for Post-Trial Relief was subsequently denied by Order of Court on January 13, 1986. This appeal follows.

Appellant advances before this Court two charges of error allegedly committed by the trial court. First, Appellant contends the trial judge improperly interpreted the applicability of Feld v. Merriam, supra, in relation to the facts of the instant case. Second' Appellant claims the trial judge abused his discretion in granting Appellees’ various motions in limine.

Our scope of review for determining whether a compulsory nonsuit should have been granted is well established. A judgment of nonsuit may be entered only in clear cases and a plaintiff must be afforded the benefit of every fact and reasonable inference arising from the evidence. Likewise, all conflicts in the testimony must be resolved in the plaintiff’s favor. McNally v. Liebowitz, 498 Pa. 163, 171, 445 A.2d 716, 719 (1982). “Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established.” Morena v. South Hills Health System, 501 Pa. 634, 638, 462 A.2d 680, 683 (1983) (citations omitted).

I. Application of Feld v. Merriam.

Because this is the first time in which we are specifically called upon to interpret the impact of Feld, we shall synop-size both the procedural and substantive aspects of that case. The Feld case involved a married couple who were tenants in a large apartment complex owned by defendant-owners. One evening the Felds were parking their car in a garage adjacent to the apartment buildings when they were set upon by three armed felons. The felons forced the couple into a car, and, after releasing Mr. Feld on a deserted street corner, drove to the lonely precincts of a country club where they assaulted Mrs. Feld.

The Felds brought suit against the defendant-owners alleging a duty of protection owed by the landlord, the breach of such duty, and injuries resulting therefrom. Following an eight-day trial, the jury returned a verdict in favor of the Felds. The defendant-owners filed post-trial motions for a new trial, judgment n.o.v., and remittur, which were subsequently denied. On appeal, this court affirmed the trial court, with the exception that punitive damages awarded were reduced by one-half.

On review by our Supreme Court, it was noted that the issue presented in that case was one of first impression. The question addressed was “whether a landlord has any duty to protect tenants from the foreseeable criminal acts of third persons, and if so, under what circumstances.” Id. at 506 Pa. 392, 485 A.2d 745. In arriving at its conclusions, the court noted a distinction between the risk of injury from a physical defect in the property, and the risk from the criminal act of a third person:

In the former situation the landlord has effectively perpetuated the risk of injury by refusing to correct a known and verifiable defect. On the other hand, the risk of injury from the criminal acts of third persons arises not from the cpnduct of the landlord but from the conduct of an unpredictable independent agent. To impose a general duty in the latter case would effectively require landlords to be insurers of their tenants safety: a burden which could never be completely met given the unfortunate realities of modern society.

Id. at 506 Pa. 392, 485 A.2d 746.

The court, however, opined that this general rule is not without exception. Relying upon the Restatement (Second) of Torts § 323, the court stated that “where a party assumes a duty, whether gratuitously or for consideration, and so negligently performs that duty that another suffers damages,” liability may be imposed. Ibid.

The court next applied the newly-generated rule, and its exception, to the Feld circumstances and held that:

[a]bsent therefore an agreement wherein the landlord offers or voluntarily proffers a program, we find no general duty of a landlord to protect tenants against criminal intrusion. However, a landlord may, as indicated, incur a duty voluntarily or by specific agreement if to attract or keep tenants he provides a program of security. A program of security is not the usual and normal precautions that a reasonable home owner would employ to protect his property. It is, as in the case before us, an extra precaution, such as personnel specifically charged to patrol and protect the premises.

Id. at 506 Pa. 398-394, 485 A.2d 747.

It is on this last excerpt of the Feld opinion which the trial judge based his decision to grant a compulsory nonsuit. By its opinion, the trial court found that no duty existed on the part of Appellees inasmuch as no “program of security”, as defined in Feld, was promised:

The installation of a front door lock is nothing more than a reasonable homeowner would do to protect his property. It is not an extra precaution____ The Supreme Court did not intend to impose a duty on a landlord who negligently undertakes the performance of normal security precautions. The essence of the Feld case is that the landlord must somehow hold himself out as a provider of security to a prospective tenant through a program providing extra precautions. Only when a landlord holds himself out as such, and negligently fails in his undertaking, can he be found liable for criminal acts inflicted upon his tenants. (Trial Court Opinion, p. 5).

The trial court thereby concluded that Appellant merely alleged an unenforceable promise by Appellees to repair the front door, instead of an agreement between the parties calling for a “program of security”.

We disagree and find the trial court rendered a too narrow interpretation of the phrase “program of security”. The trial court mistakenly found Appellant had the burden of proving that Appellees held themselves out as “providers of security”. Likewise, the trial court held that a landlord’s duty does not rise to such status unless he/she undertakes extra precautions, “such as video monitors, security guards, or an alarm system.” (Trial Court Opinion, p. 5). Although the Supreme Court commented that an example of an extra precaution would be “personnel specifically charged to patrol and protect the premises,” it in no way indicated that all security systems must be of a complicated nature. Rather, the court recognized that a bona fide security systems could range from being the most rudimentary devices to being elaborate programs of safety:

A tenant may rely upon a program of protection only within the reasonable expectations of the program. He can expect, however, that the program will be reasonably pursued and not fail due to its negligent exercise____ A tenant may not expect more than is offered____ He can only expect the benefits reasonably expected of the program as offered and that that program will be conducted with reasonable care.

Id. at 506 Pa. 394, 485 A.2d 747.

From our reading of Feld, we find that the touchstone in determining if a “program of security” exists is whether or not the program promises to provide an additional factor of safety. This is a substantive analysis. By comparison, the trial court’s reasoning is awry insofar as it lends too much emphasis to the form of the security system and whether it involves hired security personnel or utilizes mechanical wizardry.

At first blush, a secured outside door seemingly does not amount to a “program of security”. However, we find that the impact of safety resulting therefrom places this precaution squarely within the definition of a security program as enunciated by our Supreme Court. Initially we note that Appellees clearly had no preexisting duty to supply their tenants with a functional front door lock. Appellees, however, “assumed the duty” by consistently promising to remedy the situation, thereby fostering a possible “reliance by [their] tenants on [their] efforts.” Id. at 506 Pa. 394, 485 A.2d 747. By agreeing to make the necessary repairs to the outside door, Appellees tacitly agreed to provide the tenants with a method by which they could have monitored those people who gained access to the interior of the apartment building. The locked front door would have been an assurance that those who knocked on the front door to gain ingress, and who were subsequently admitted, were indeed invited guests of the tenants.

Albeit there was no agreement to hire security personnel or to install an electronic alarm system, this does not detract from the fact that Appellees agreed to supply the additional protection of a locked exterior door which the locks installed on each apartment unit’s door surely could not provide. It is evident that by failing to make the necessary adjustments to the lock, Appellees denied their tenants the greatly enhanced level of security that such an elementary undertaking would have provided.

In keeping within the mandates of Feld, we note that Appellant could only expect the same quality and type of protection that the second locked door would have provided and nothing more. However, Appellees did not supply these benefits which Appellant had a right to reasonably anticipate.

Accordingly, we hold the trial judge erred by granting Appellees’ motion for compulsory nonsuit. Instead we find that the jury should have been allowed to determine whether Appellees undertook the duty to provide the locked door, whether Appellees breached this duty, and whether such failure was a substantial factor in bringing about the harm to Appellant.

II. Motions in Limine.

Finally, Appellant objects to the trial judge’s granting of various motions in limine. In light of the issue concerning Appellees’ duty to Appellant, we decline to reach the merits of these arguments.

Order of Court vacated. Case remanded to the trial court for proceedings consistent with this opinion. Jurisdiction of this court relinquished.

      . Melvin Dean Smith was tried and convicted of rape, assault and armed robbery, and was sentenced to a prison term of 12-24 years.

      . § 323. Negligent Performance of Undertaking to Render Services.
      One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm, or
      (b) the harm is suffered because of the other’s reliance upon the undertaking.

      . We recognize too that Appellees’ promises, as applied to the directives of the Restatement (Second) of Torts § 323, would lead to the conclusion that Appellees assumed a duty of care.


author: BECK, Judge:

text:
    519 A.2d 511
    Edward F. O’BRIEN v. Edna O’BRIEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1986.
    Filed Jan. 5, 1987.

      Paul W. Rauer, Philadelphia, for appellant.
    Denis W. Lanotot, Morrisville, for appellee.
    Before WICKERSHAM, OLSZEWSKI and BECK, JJ.
   BECK, Judge:

In this divorce case, appellee-husband petitioned for special relief under the Divorce Code of 1980, Pa.Stat.Ann. tit. 23, § 403 (Purdon Supp.1986) to prevent appellant-wife from dissipating proceeds from the sale of marital assets. First, it is necessary to consider whether an order granting or denying special relief under the Divorce Code is appealable as of right. We find that an order granting or denying special relief is not appealable as of right.

On January 21, 1986, the trial court conducted a hearing on husband’s petition and made findings of fact. The court ordered the wife to file an accounting within ten days, and further ordered that she not spend, transfer or otherwise dispose of the balance of the proceeds from the sale of marital property. The court determined that violation of the order subjected the wife to the penalty of contempt. Wife filed a timely accounting and a timely motion for post-trial relief pursuant to Pa.R.Civ.P. 1920.52(a) and 227.1

On March 3, 1986, the trial court reaffirmed its previous order of of January 21, 1986. The court then relied on wife’s accounting to clarify its order. It directed wife not to convey or encumber two vehicles and a house trailer which were paid for in part or in full from marital property proceeds. The order further directed wife not to withdraw any money from two bank accounts, and the order created a $35,000 lien in favor of the husband against all the aforesaid property. This sum represents one-half of the sale price of the marital residence.

The court scheduled an equitable distribution hearing which wife delayed by requesting a postponement. The rescheduling was in process when wife filed this appeal. Thereafter the trial court entered an order reaffirming the order of March 3, 1986. In its opinion the trial court concluded that wife’s appeal was premature. We agree.

The Pennsylvania Supreme Court has recognized that the appealability of decisions involving interim relief in divorce actions is an important question. Fried v. Fried, 509 Pa. 89, 91, 501 A.2d 211, 212 (1985). The right to special relief in the instant action is derived from Sections 401(c) and 403(a) of the Divorce Code. It is necessary to consider the two sections together.

§ 401. Decree of court
(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interest of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

Pa.Stat.Ann. tit. 23, § 401(c) (Purdon Supp.1986).

§ 403. Injunction against disposition of property pending suit and decree rendering fraudulent transfers null and void, (a) Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate, or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached as provided by the Rules of Civil Procedure. The court may also issue a writ of ne exeat to preclude such removal.

Pa.Stat.Ann. tit. 23, § 403(a) (Purdon Supp.1986). The Code is silent as to whether orders pursuant to these sections are appealable as of right. An examination of Pa.R.Civ.P. 1920.43, implementing the two sections, sheds no light on the issue of appealability. We must therefore turn to our Rules of Appellate Procedure and case law construction thereunder to determine whether Sections 401(c) and 403 orders are final and appealable or interlocutory; and if interlocutory, whether they are appealable as of right pursuant to exceptions enumerated in Pa.R.App.P. 311.

Wife argues alternatively that her appeal is a final order appealable under Pa.R.App.P. 341 or an interlocutory order appealable as of right pursuant to Pa.R.App.P. 311(a)(2) and 311(a)(4).

I.

The appropriate standard to determine whether an order is final was originally set out in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), establishing an exception to the final judgment rule.

In Cohen, The Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. 337 U.S. at 546 [69 S.Ct. at 1226] ... (emphasis added).

cited in Fried, 509 Pa. at 94, 501 A.2d at 214. This approach looks beyond the technical effect of an adjudication to its practical ramifications. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-45 (1978).

In Fried, the Pennsylvania Supreme Court affirms the Cohen principle and determines that not all the factors can be met in the case of an appeal from an award of interim counsel fees and expenses in a matrimonial case. The court held that under the Divorce Code “such an order is interlocutory and thus not reviewable until final disposition of the case.” Fried, 509 Pa. at 97, 501 A.2d at 215.

In considering the finality of an order, there is no applicable distinction between the interim financial award in Fried and the temporary order for special relief at issue in the instant case. Both orders fail to meet the Cohen standard. Thus, the order for special relief in the instant action is not a final order appealable as of right.

II.

The determination that the order is not final does not end our inquiry. We must examine whether the interlocutory order may be appealable as of right, under the applicable statute and rules. Appellant contends that Pa.R.App.P. 311(a)(2) and 311(a)(4) are applicable:

Rule 311. Interlocutory Appeals as of Right
(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(2) Attachments, etc. An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property.
(4) Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.

As these rules for interlocutory appeals as of right were adopted before the Divorce Code of 1980, the drafters could not consider their impact in divorce cases.

The Fried court considered the policy of interlocutory appeals in divorce cases and determined that to permit appeals prior to final disposition of all matters relating to the divorce action would have serious consequences.

Our decision today reflects the policy of law which abhors “piecemeal determinations and the consequent protraction of litigation.” Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954). See also Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970). The avoidance of unduly protracted divorce proceedings is consistent with the legislature’s intent to mitigate harm to the spouses and their children during this emotionally taxing experience. 23 P.S. § 102(4) (Supp.1985). It is obvious that had the interlocutory appeal been disallowed, the present dispute as to costs could have been resolved several years ago in a final divorce decree. Moreover, a policy which allows piecemeal appeals from a single case serves only to increase the cost of litigation, and favors the party with the greater resources, who can strategically delay the action at the expense of the indigent party. We thus conclude that strong policy considerations support our holding today that such orders issued pursuant to section 502 of the Divorce Code are interlocutory and therefore unappealable.

Fried, 509 Pa. at 97, 501 A.2d at 215.

Accordingly, we conclude this interlocutory order is not appealable as of right.

The appeal is quashed. Jurisdiction is relinquished.

      . Wife raises numerous issues. Our disposition of the first issue is determinative and makes it unnecessary for us to consider the others.


author: CAVANAUGH, Judge:

text:
    519 A.2d 514
    Nancy Parker SHAZES a/k/a Nancy Baltuskonis, Appellant, v. Gerald Joseph BALTUSKONIS, Appellee.
    Superior Court of Pennsylvania.
    Argued May 15, 1986.
    Filed Jan. 6, 1987.

      Esther L. Hornik, Philadelphia, for appellant.
    Kenneth C. Taylor, Wayne, for appellee.
    Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.
   CAVANAUGH, Judge:

This appeal is from an order granting special relief pursuant to Sections 401(c) and 403(a) of the Divorce Code regarding possession of the parties’ marital residence pending the resolution of remaining equitable distribution and alimony issues. Because this order is interlocutory in nature, this court is without jurisdiction to entertain the appeal and it must be quashed.

The Supreme Court has recently addressed the issue of appealability of interim orders in divorce cases in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). It held in Fried that an order granting interim counsel fees and expenses, under Section 502 of the Divorce Code, is not immediately appeal-able since it is not a final order and does not fall within the exception to the final judgment rule as stated in Bell v. Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975) and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

The court expressed its abhorrence for a procedural practice in matrimonial actions which would allow for the taking of interlocutory appeals and unacceptable protraction of litigation. It noted that the “disastrous result of permitting appeals of grants of interim relief” was demonstrated by the facts of the case before it. Similarly, we observe that the appeal of the order in the instant case has served to unduly delay final resolution of the parties’ property interests. A decree in divorce was entered on June 1,1984. The court retained jurisdiction over the property and alimony issues and ordered that a master’s hearing be promptly scheduled. The parties then continued the scheduled hearings on several occasions over a six-month period pending resolution through negotiation. During this time foreclosure proceedings were commenced against the marital residence in which appellant-wife had been living. Appel-lee-husband on July 5, 1985 filed for special relief awarding him possession of the home in return for his bringing all mortgage payments up to date. This petition was granted on July 17, 1985, and is the subject of the instant appeal. On September 26, 1985 the lower court filed its opinion in support of the July 17th order and granted appellant’s application for supersedeas in order to preserve the status quo pending appeal. Nonetheless, the parties in their briefs agree that appellant was no longer residing in the home, commencing at the latest on November 15, 1985.

As the above chronology illustrates, the instant appeal has delayed final disposition, while serving no purpose for either party, since whatever benefit the supersedeas may have bestowed on appellant, the status quo has not been maintained.

There exists no basis to distinguish between interim awards of counsel fees and other interim orders. The Fried opinion speaks in terms of interim orders in general and the adverse effect interlocutory appeals have upon the progress of a matrimonial case. The Supreme Court has declared a clear policy against piecemeal litigation and we see no basis for the exercise of appellate jurisdiction upon this record.

Appeal quashed.

      . A decision by this court in Laczkowski v. Laczkowski, 344 Pa.Super. 154, 496 A.2d 56 (1985), which preceded the decision of the Supreme Court in Fried, allowed an interlocutory appeal of an interim order. To the extent Laczkowski is inconsistent with the holding in Fried, it no longer appears to be good law.


text:
    519 A.2d 516
    Bonnie K. FORRY, Appellant, v. David S. FORRY, Appellee.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Dec. 5, 1986.
    Reargument Denied Jan. 23, 1987.

      Frederick S. Wolf, Lebanon, for appellant.
    Edward Finkelstein, Harrisburg, for appellee.

      Before WIEAND, BECK and WATKINS, JJ.
   BECK, Judge:

This is an appeal from an order denying a petition to modify child support. Appellant/mother sought an increase in child support from appellee/father. Thirteen years ago the court ordered the father to pay $22.50 per week. The court held in denying the petition that the mother did not prove a substantial change in circumstances justifying consideration of an increase in support. Mother claims that the court abused its discretion. We agree and, therefore, vacate the order and remand for further proceedings.

Initially, father claims that mother failed to preserve the issue on appeal. Father filed exceptions to the domestic relations hearing officer’s recommendation that the mother’s petition be granted. In response Mother untimely filed a brief in opposition to the exceptions and did not appear at the argument on the exceptions. Father contends that, under Pa.R.A.P. 302 and 2117(c), mother therefore failed to preserve the issue.

We reject father’s reasoning. His argument is that mother’s failure to oppose his exceptions constituted a waiver of her issue. He overlooks that until his exception was sustained by the court, mother had no issue to preserve. Before this point, unless she wanted a further increase in the support order, mother had no reason to object to a hearing officer’s recommendation that her child was entitled to an increased amount of support from appellee.

The court decided the instant case based on one exception out of seven filed by the father. The court did not consider the father’s other objections.

Mother contends that the court abused its discretion in concluding that she had not shown a substantial change in circumstances which would justify consideration of an increase in the amount of child support. A modification may only be ordered after the proponent of the modification presents evidence proving a substantial change in circumstances. Jaskiewicz v. Jaskiewicz, 325 Pa.Super. 507, 473 A.2d 183 (1984). The court held that mother’s only proof was her general statement at the domestic relations hearing that her expenses for rearing her daughter had increased in the last 13 years. The court concluded that the hearing officer referred only to the passage of time in his findings of fact in making his recommendation that the mother’s petition be granted. “On this basis alone, the court reasoned, an increase in support could not be considered.

We agree with the court that the mere passage of time does not in itself constitute a change of circumstances. Where a protracted period of time has elapsed, however, time itself becomes a factor to be considered. Under the circumstances of the instant case the passage of thirteen years, during which the child for whom increased support is sought developed from a two year old child to a fifteen year old teenager, should have been viewed as a significant factor.

In addition to the passage of time, a review of the record reveals other factors supporting changed circumstances: mother and father have remarried, mother has another child; mother and father’s income is greater now than when the original order was set, the child now attends private school and requires psychological counselling; and the second spouses of mother and father contribute to the expenses of their households. These factors, along with the passage of time, support changed circumstances.

The court abused its discretion in its failure to take into account record evidence tending to show a change in circumstances. See Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

We therefore vacate the order. Since the court ruled on only one of the father’s seven exceptions we remand for reconsideration of father’s undecided exceptions. To facilitate proper review, we direct that the court set a new schedule for filing briefs and for arguments on the exceptions.

Order vacated and case remanded for further proceedings. Jurisdiction is not retained.

      . The child’s educational expenses are provided in part by a trust fund.