author: HOFFMAN, Judge:

text:
    565 A.2d 794
    KALLER’S INC., Appellant, v. JOHN J. SPENCER ROOFING, INC. and J. Edward Lauders and The Celotex Corporation.
    Superior Court of Pennsylvania.
    Argued May 23, 1989.
    Filed Oct. 31, 1989.

      J. Craig Currie, Philadelphia, for appellant.
    Dean F. Murtagh, Philadelphia, for Spencer Roofing, appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order below granting appellee’s motion for summary judgment in a contribution action. Appellant had instituted this action after a judgment of 140,000 dollars had been entered against it in a previous lawsuit. On appeal, appellant contends that the trial court erred in concluding that appellee was entitled to summary judgment based on collateral estoppel. For the reasons that follow, we agree and, accordingly, we reverse the order of the trial court and remand for proceedings consistent with this opinion.

In January of 1986, appellant, Kaller’s, Inc. (“Kaller’s”) filed the present action for contribution and/or indemnification against appellee, John J. Spencer Roofing, Inc. (“Spencer”), the Celotex Corporation, and J. Edward Lauders. Kaller’s sued for the amount of a judgment that was entered against it on March 24, 1983 in the case of Manor Junior College v. Kaller’s, Inc. & John J. Spencer Roofing, Inc., No. 1632 Philadelphia, May Term, 1979. In the underlying case, Manor Junior College (“the College”) hired Kaller’s to construct a roof on one of its buildings. Kaller’s, in turn, subcontracted with Spencer for certain roofing work. The College later brought an action against both Kaller’s and Spencer for damages allegedly sustained as a result of faulty workmanship in the installation of the roof. Kaller’s responded by filing a cross-claim against the College alleging breach of contract. In addition, Kaller’s and Spencer filed cross-claims against each other for contribution and indemnification. Prior to trial, the court ruled that the College had failed to state a claim in negligence against Spencer, and ordered that it proceed against Spencer on its contract claim only. The case then went to trial. After the close of testimony, the court granted Spencer’s motion for a nonsuit on the College’s contract claim, and thereafter, counsel for Spencer and Kaller’s withdrew their respective cross-claims. Because Spencer was no longer a party to the underlying lawsuit, the only claim presented to the jury was whether Kaller’s or the College breached the contract. The jury found in favor of the College and awarded damages in the stipulated amount of 140,000 dollars.

On August 17, 1988, a year and seven months after Kaller’s filed the present action, Spencer filed a motion for summary judgment contending that Kaller’s was barred from proceeding against it on the grounds of collateral estoppel and res judicata. By order dated November 22, 1988 and filed December 1, 1988, the trial court granted appellee’s motion based on collateral estoppel. This timely appeal followed.

I. SUMMARY JUDGMENT

The issue presented for review is whether the trial court erred in granting Spencer’s motion for summary judgment. A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Hedlund Mfg. Co. v. Weiser, 517 Pa. 522, 539 A.2d 357 (1988); see also Gabovitz v. State Auto Ins. Ass’n, 362 Pa.Super. 17, 523 A.2d 403 (1987); Pa.R.Civ.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Hower v. Whitmak Assoc., 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988); Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987). Moreover, in summary judgment proceedings, the court’s function is not to determine the facts, but only to determine if a material issue of fact exists. French v. United Parcel Serv., 377 Pa.Super. 366, 372, 547 A.2d 411, 414 (1988). Thus, an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Ackler v. Raymark Indus. Inc., 380 Pa.Super. 183, 185-86, 551 A.2d 291, 292 (1988); Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 321, 528 A.2d 177, 179 (1987); Miller v. Federal Kemper Ins. Co., 352 Pa.Super. 581, 585-86, 508 A.2d 1222, 1225 (1987).

II. COLLATERAL ESTOPPEL

The trial court granted Spencer’s motion based upon collateral estoppel. The doctrine of collateral estoppel or issue preclusion “operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Muhammad v. Strassburger, 374 Pa.Super. 613, 618, 543 A.2d 1138, 1140 (1988) (quoting Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236, 464 A.2d 1313, 1318 (1983) (citations omitted)), alloc. granted, 520 Pa. 618, 554 A.2d 510 (1989). The rationale behind the rule is the protection of litigants from the burden of relitigating an issue with the same party or his privy and the need for efficient administration of justice. Clark v. Troutman, 509 Pa. 336, 341, 502 A.2d 137, 139 (1985). Four criteria must be met in order to apply the doctrine of collateral estoppel and bar relitigation of an issue already tried:

1. the fact or facts at issue in both instances were identical;
2. these facts were essential to the first judgment;
3. the parties must have had an opportunity to 'actually litigate’ the issue; and
4. the facts were actually litigated in the first cause.

Muhammad v. Strassburger, 374 Pa.Super. 613, 618-19, 543 A.2d 1138, 1140 (1988) (citations omitted); see also Phillip v. Clark, 385 Pa.Super. 229, 235, 560 A.2d 777, 780 (1989) (quoting Mellon Bank v. Rafsky, 369 Pa.Super. 585, 592, 535 A.2d 1090, 1093 (1987)); Matson v. Housing Auth. of Pittsburgh, 326 Pa.Super. 109, 112-13, 473 A.2d 632, 634 (1984); Restatement (Second) Judgments § 27.

In this case, it is undisputed that the issue presented in the cross-claims in the Manor case — i.e., whether Kaller’s or Spencer was liable for the faulty construction of the roof — is the same issue framed in the contribution action. Moreover, because the cross-claims were withdrawn after the presentation of testimony, there is little question that the parties had an opportunity to litigate the issue presented in the cross-claims. However, after a careful review of the record, we must conclude that the trial court erred in granting Spencer’s motion for summary judgment because: (1) despite the fact that the parties had an opportunity to litigate their cross-claims, there is no record evidence to suggest that the issue of Spencer’s liability to Kaller’s was actually litigated; and (2) even if we were to assume that the issue was actually litigated, it was neither ruled on by the court nor presented to the jury for determination, and thus the facts related to the cross-claims were not essential to the first judgment.

Spencer notes that the gravamen of Kaller’s complaint in the contribution action is that Spencer was liable to it for the defective roof that was built for the College. Spencer maintains that this precise issue was presented in the prior lawsuit in Kaller’s cross-claim and, because the cross-claims were withdrawn only after the parties had a full opportunity to present evidence on the cross-claims, the issue has already been litigated adversely against Kaller’s. Conversely, Kaller’s argues that, although the issue of Spencer’s liability was raised in the prior suit, the issue was never actually litigated because the parties dropped their respective cross-claims. Moreover, because the question of Spencer’s liability for its subcontracted work was neither determined by the Manor College court or presented to the jury, Kaller’s submitted that it was not essential to the first judgment. Thus, Kaller’s claims that the verdict in the Manor case, although final as to Kaller’s liability to the College, does not resolve the issues raised in the contribution action.

In deciding whether Spencer’s liability to Kaller’s was actually litigated in the prior case, we must examine the relevant portions of the record in Manor College. See Matson v. Housing Auth. of Pittsburgh, supra. The difficulty with Spencer’s claim that its liability was actually litigated in the first suit is that Spencer elected not to make the transcript of the Manor case part of the official record in this case. Instead, the only relevant portions of the record in the Manor case that are contained in the certified record on this appeal are: (a) the transcribed notes from the conference on the parties’ cross-claims held in the Honorable Paul M. Chalfin’s chambers on March 24, 1983, (b) Judge Chalfin’s jury charge, and (c) the transcribed notes from the judge’s colloquy with the jury foreman during the reading of the verdict. Because the trial transcript from Manor College is not part of the record, we cannot determine whether Spencer’s liability was actually litigated.

More importantly, a review of the documents that were made a part of the record reveals that even if we were to agree with Spencer and find that Kaller’s had actually litigated its cross-claim relating to Spencer’s liability, those facts clearly were not essential to the final judgment in the Manor case. After the completion of testimony in the Manor case, Spencer moved for a nonsuit on the College’s contract claim against it. Although the court granted the non-suit in regard to the College’s claims against Spencer, a non-suit was not granted on Kaller’s cross-claim against Spencer. Instead, the trial court held an in-chambers conference during which Kaller’s and Spencer agreed to drop their cross-claims. The notes from this conference reveal that the withdrawal was made without prejudice to either party to pursue their claims at a future date. See Record Exhibit “A”. In addition, the record contains an excerpt from Judge Chalfin’s jury charge which also makes it clear that Spencer’s liability was not at issue. In his charge, Judge Chalfin instructed the jury that the only issue before it was whether the College or Kaller’s breached the contract. See Record Exhibit “B”. In addition, a review of the foreman’s announcement of the verdict reveals that the only issue decided by the jury was whether Kaller’s or the College breached the contract. See Exhibit “C”. The record thus unequivocally establishes that, because Spencer was no longer in the case, the jury did not resolve any issue of its liability to any of the parties, whether in tort or contract. Moreover, the only legal issue regarding Spencer’s liability that was resolved by the Manor College court was its liability to the College. Therefore, the issue of Spencer’s liability was not essential to the first judgment.

In summary, after carefully reviewing the record in the light most favorable to Kaller’s as the nonmoving party, we find that (1) it is not apparent that the issue of Spencer’s liability was actually litigated in the prior suit, and (2) the facts relating to Spencer’s liability were not essential to that first judgment. Accordingly, we conclude that the trial court erred in granting appellee’s motion for summary judgment on the grounds of collateral estoppel.

III. RES JUDICATA

Although the trial court granted Spencer’s motion only on the basis of collateral estoppel, Spencer also claimed that res judicata barred Kaller’s suit. Because this Court is free to affirm the decision of the trial court if the result is correct on any ground, we must address this issue. See Penn Piping Inc. v. Insurance Co. of North America, 382 Pa.Super. 19, 554 A.2d 925 (1989). In order for res judicata to apply four concurrent criteria must be satisfied. There must be:

(1) an identity in the thing sued upon (2) identity in the cause of action (3) identity of persons and parties to the action, and (4) identity of the capacity of the partners suing or sued.

Gutman v. Giordano, 384 Pa.Super. 78, 80, 557 A.2d 782, 783 (1989) (quoting In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 477 A.2d 527 (1984)). Moreover, for a prior judgment to bar an action on the basis on res judicata, there must have been a final judgment on the merits by a court of competent jurisdiction. Id.; see also Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974). Here, for the reasons we have already noted above, it is clear that a final judgment was not obtained as to Spencer’s liability to Kaller’s. Because of the voluntary withdrawal of their respective cross-claims and the granting of a nonsuit due to the College’s failure to prove that they were a third party beneficiary to the contract between Kaller’s and Spencer, there was no previous adjudication on the merits of Kaller’s present suit. No issues were addressed by the trial court concerning Spencer’s liability to Kaller’s nor were any determinations made by a jury. Because there was no final judgment regarding Kaller’s prior claim, we conclude that the res judicata does not bar the instant case.

For the foregoing reasons, we reverse the order of the trial court and remand for proceedings consistent with this opinion.

Order reversed and case remanded. Jurisdiction relinquished.

      . Appellant also contends that the trial court erred in granting summary judgment on public policy grounds. Because of our disposition of appellant’s first claim, however, we need not address this issue.

      . The judgment in Manor Junior College was affirmed by this Court at 352 Pa.Super. 310, 507 A.2d 1245 (1986).

      . The trial court entered the non-suit in favor of Spencer on the ground that the College was not a third party beneficiary of the contract between Kaller’s and Spencer.

      . Prior to filing an appeal, Kaller’s filed a petition for reconsideration on December 19, 1988. This petition was denied on January 3, 1989.

      . The record also does not contain a certified copy of Judge Chalfin’s order and opinion dated December 31, 1983 or this Court’s opinion affirming Judge Chalfin’s order, which is published at 352 Pa.Super. 310, 507 A.2d 1245 (1986). Because these opinions were not made part of the certified record on appeal, they cannot be considered by this court. Matson v. Housing Auth. of Pittsburgh, 326 Pa.Super. 109, 114, 473 A.2d 632, 635 (1984). However, even if we were to take judicial notice of the facts as outlined in our published opinion in the underlying case, it would not warrant a different result.

      . Although Pennsylvania courts have recognized that the doctrine of res judicata may bar litigation of a suit even when a final valid judgment on the merits has not been obtained, such circumstances are not present here. See Zimmer v. Zimmer, 457 Pa. 488, 326 A.2d 318 (1974) (judgment by default); Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 197 A.2d 44 (1964) (settlement entered into midway through trial with approved court order to settle, discontinue and end); Chamberlin of Pittsburgh v. Fort Pitt Chemical Co., 237 Pa.Super. 528, 352 A.2d 176 (1975) (stipulation of dismissal with prejudice).


source: Caselaw Access Project

author: HESTER Judge: CIRILLO, President Judge, CAVANAUGH, Judge,

license: Public Domain

text:
    565 A.2d 798
    COMMONWEALTH of Pennsylvania Appellant, v. John Joseph CONAHAN.
    Superior Court of Pennsylvania.
    Argued April 18, 1989.
    Filed Nov. 1, 1989.

      Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellant.
    Francis R. Lord, Media, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH and HESTER, JJ.
   HESTER Judge:

This is an appeal by the Commonwealth from the judg-ment of sentence of thirty days to one year imprisonment for a second conviction for driving under the influence, entered by the Court of Common Pleas of Delaware County on November 7, 1988. The Commonwealth does not appeal the actual sentence imposed, which is the statutorily mandated minimum sentence, but asserts that the trial court erroneously credited appellee, John Conahan, with time served in an inpatient alcohol treatment program, and granted him immediate parole. The Commonwealth contends that this negates the legislature’s purpose of punishment and deterrence by enacting 75 Pa.C.S. § 3731(e). We agree, reverse the trial court’s according appellant credit for inpatient alcohol treatment, and remand for proceedings consistent with this opinion.

The record reveals that Upper Providence Township Police were notified of an accident near a highway exit ramp on February 8, 1988. Upon their arrival, the police discovered a single vehicle off the road and on an embankment. The owner, appellee, was in a nearby service station making a telephone call to locate a tow truck. Appellee stated that he had been forced off the road by an unidentified automobile. The police noted that appellee’s speech was slurred and that he had a strong odor of alcohol on his breath. The police placed appellee under arrest after he failed to perform satisfactorily on several field sobriety tests. Despite being advised of the consequence of his refusal, appellee refused to submit to any chemical test of his blood for alcohol content. This was appellee’s second drunk driving offense.

Pursuant to an agreement, appellee pled guilty to a negotiated plea. At sentencing on November 7, 1988, appellee established that he had participated in three in-patient alcohol treatment programs over a consecutive ninety-five day period. This testimony was uncontested. Appellee argued that the legislature used the word “imprisonment” in 75 Pa.C.S. § 3731(e) and inpatient treatment programs come within the definition of imprisonment; thus, he should be given credit for time served in those programs. We disagree.

“Imprisonment” is defined as:

The act of putting or confining a man in prison. The restraint of a man’s personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion. It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Every confinement of the person is an “imprisonment,” whether it be in a prison, or in a private house, or even by forcibly detaining one in the public streets. Any unlawful exercise or show of force by which person is compelled to remain where he does not wish to be.

Black’s Law Dictionary (5th ed. 1979). Consequently, appellee argued at sentencing that the legislature intended that the mandatory minimum sentence for a second DUI conviction could be served by “imprisonment,” ie. “confinement,” in broader circumstances than just “jail.” Otherwise, he contended, the legislature would have used the word “jail” in Section 3731(e), rather than “imprisonment.” Appellee then asserted that his participation in inpatient alcohol treatment programs constituted confinement in custody, and thus imprisonment, so that the trial court must credit him with this time against his mandated imprisonment pursuant to the general rules requiring credit for time served. 42 Pa.C.S. § 9760; Pa.R.Crim.P. 1406(b).

The court sentenced appellee to thirty days imprisonment to be served by fifteen consecutive, forty-eight hour weekends. The sentencing court then accepted appellee’s arguments for credit, credited him for the in-patient time, and granted immediate parole. This appeal by the Commonwealth followed. On appeal, appellee reasserts the same arguments that he made at sentencing.

The Commonwealth, conversely, insists that the legislature, by enacting the driving under the influence statute, 75 Pa.C.S. § 3731, intended to require punishment by thirty days in jail for second DUI offenders, as a deterrent to the carnage on the Commonwealth’s highways. The Commonwealth contends that granting credit, even for custodial in-patient treatment exceeding the mandatory minimum sentence, is contrary to the intent of the legislature to provide punishment as a deterrent; especially since it permits a defendant to choose the time and place to serve his sentence. In the present case, appellee began participation twenty days after his arrest in two hospital programs, Chestnut Hill Hospital and Eugenia Hospital, and then transferred to the Locust Mountain Treatment Center. He also attended Alcoholics Anonymous meetings regularly. The Commonwealth argues that credit for participation in these programs permits appellee to avoid jail and to serve his sentence in a manner which would constitute an illegal sentence if it were imposed for a second DUI conviction.

In support of this argument, the Commonwealth cites legislative history to show that the primary purpose of the mandatory minimum sentence in Section 3731(e) was to punish, not to rehabilitate. A thorough review of the legislative history compels our agreement. Representative Saurman made the following remarks in support of amendment No. A 8810 (accepted and incorporated in 75 Pa.C.S. § 3731):

During the deliberations of the task force, the requirements for 30, 60, and 90 days in jail, it was my understanding that those penalties carried with them the opportunity for a judge to release in work release those who were incarcerated, the reason being that the individual would in this way be able to maintain his job and support his family. The language that is in this bill defines a day as 24 consecutive hours.

Pa. House Leg. 1717 (September 9, 1982). Although it also was stated during the debate that the amendment did not specify where such sentence must be served, subsequent comments clearly establish that punishment by imprisonment in jail was contemplated by the language of Section 3731.

Another amendment, No. A 8718, proposed by Representative Evans, would have permitted first and second offenders to serve their mandatory sentence through community service. The amendment was divided in order to consider first offenders separately from subsequent offenders. The first part of the amendment with regard to first offenders was accepted, but the second part with regard to subsequent offender was rejected. Pa. House Leg. 1720-21 (September 29, 1982).

The second part of the amendment regarding repeat offenders was further sub-divided to separate the issue of mandatory prison sentence for repeat offenders (first part of Part II), from the issue of whether repeat offenders could serve their prison sentence through community service (second part of Part II). The following was stated as part of the debate:

Mr. Ritter: Mr. Speaker, the reason for the second division is that we need to restore the language on the second, third and fourth offences to read “Serve a minimum term of imprisonment ...” That language has to be put back in so if we accept that part of the second amendment, then we would have in the bill that public service would be available to those who commit the first offense, but the minimum prison term would be there for those who commit the second, third and fourth offense. So I would ask support for the first part of the second part of the amendment.
The Speaker: The question before the House is the second portion of the amendment as submitted by the gentleman, Mr. Evans, excepting the words “Amend Sec 9 (Sec. 3731), page 17, line 14, by inserting after ‘days’ or perform not less than 80 nor more than 90 hours of community service work as determined by the court.”

Pa. House Leg. 1723 (September 29, 1982) (emphasis added).

The first part of Part II of this amendment was approved 190 to two, with five not voting and two excused. Id. at 1725. Mr. Evans then withdrew the second part of Part II of his amendment regarding community service of the mandatory sentence for repeat offenders. Id. at 1725. The House subsequently approved amendment No. A 8715, permitting those sentenced to prison to participate in a daytime work release program that involved collecting litter, especially alcoholic beverage containers, from public and private property. 75 Pa.C.S. § 3731(h).

The Commonwealth next argues that case law has effectuated the legislature’s intent by holding that mandatory minimum sentence for DUI offenders meant that “some type of incarceration is to be imposed even for first time offenses.” Commonwealth v. Sojourner, 513 Pa. 36, 43 at n. 5, 518 A.2d 1145, 1148 at n. 5 (1986) (trial court erred in imposing a suspended sentence rather than mandatory minimum imprisonment). The Commonwealth cites numerous other decisions illustrating that sentences altering mandatory imprisonment have been vacated. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985) (admission to ARD for first DUI offense rather than imprisonment is on discretionary motion by District Attorney only and is not a sentencing alternative as a matter of right for the defendant); see also Commonwealth v. Filius, 346 Pa.Super. 434, 499 A.2d 1078 (1985) (mandatory minimum sentence of imprisonment precluded alternate sentence of probation); Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986) (guilty plea and acceptance of ARD constituted a conviction so that a second DUI violation required imposition of a mandatory minimum of thirty days in jail and court’s failure to impose incarceration resulted in illegal sentence); Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987) (acceptance of ARD was conviction, even if defendant did not complete ARD).

The Commonwealth therefore argues that any punishment that does not constitute time in prison is invalid. The specific intent of the legislature to deter drunk driving by punishment is not satisfied by any alternate form of confinement that does not constitute jail. Thus, the DUI statutory punishment takes precedence over criminal general rules requiring credit against a sentence of imprisonment for time served in custody. See 42 Pa.C.S. § 9760 and Pa.R.Crim.P. 1406. In support of this argument, the Commonwealth cites Commonwealth v. Waters, 361 Pa.Super. 154, 522 A.2d 60 (1987) (DUI statute’s specific provision for mandatory minimum sentence of imprisonment takes precedence over the general provision of 35 P.S. § 780-118, permitting substance-dependent defendants to undergo treatment as civil commitment for treatment in lieu of criminal punishment).

The trial court relied on memorandum opinion of this court. Commonwealth v. Williamson 384 Pa.Super. 646, 551 A.2d 598 (1988), upholding credit for inpatient treatment against a prison sentence for a second drunk driving offense. We note that memoranda do not constitute precedent. Therefore, that case has no precedential authority. Nevertheless, we concur with the reasoning in Williamson. However, Williamson is distinguishable since the defendant was sentenced to thirty-days in jail following completion of a thirty-day rehabilitation program in an alcohol treatment center. Williamson petitioned to modify his sentence arguing that the rehabilitation program was custodial and, therefore, satisfied the minimum sentence mandated by the legislature. The trial court agreed and modified his sentence. The Commonwealth appealed, but a panel of this court determined that custody in the rehabilitation program pursuant to court order was involuntary confinement and constituted time in jail.

Instantly, appellee’s confinement was not pursuant to a sentence. He voluntarily chose to participate in the programs and was not sentenced to serve them. He adduced no evidence that the programs involved confinement against his will or that he would be forced to return if he left.

In Cox v. Bd. of Probation and Parole, 78 Pa.Cmwlth. 183, 467 A.2d 90 (1983), the commonwealth court held that a prisoner’s participation in a drug treatment program as a condition of parole did not permit credit against his sentence when his parole subsequently was revoked for other offenses. While there was restraint on the petitioner’s liberty, the petitioner conceded that there were no guards, fences, or other features that confined patients against their will. The court further concluded that the petitioner’s contention that violation of this condition would have resulted in incarceration was not a significant restraint of his liberty since all parole conditions have a similar affect. Finally, the court found that the petitioner’s reliance on Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967), was misplaced since he was not under a court-ordered confinement to a hospital, nor was he under detention awaiting a return for further court proceedings. Instead, the petitioner voluntarily chose to participate in the program in order to obtain parole.

The Pennsylvania Supreme Court reversed Cox on the basis that the record was deficient, since the court was unable to determine the extent of the restrictions on the petitioner’s liberty. Nevertheless, the supreme court determined that the burden was on the petitioner to establish that the program presented an environment that was so restrictive that he should get credit for time he spent in it. See Cox v. Bd. of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985).

We find that appellee, similar to petitioner Cox, failed to establish that his confinement was involuntary. His participation was not required by the sentence imposed nor was the program involuntary. See Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979) (defendant kept at a remote rehabilitation camp against his will, and forcibly returned several times after escaping, must be credited with that time against a prior sentence).

We conclude the trial court abused its discretion in crediting appellee’s voluntary participation in inpatient alcohol treatment programs against the mandatory sentence of thirty days imprisonment imposed for his second DUI offense.

Reversed and remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

CIRILLO, President Judge, files a concurring opinion.

CAVANAUGH, J., files a concurring statement and concurs in the result of the majority opinion.

CIRILLO, President Judge,

concurring:

I join in the comprehensive opinion of the majority because it is a correct application of the present state of the law. However, I write separately to voice my belief that the law should be altered to permit those individuals who are convicted of the offense of Driving Under the Influence (DUI) to receive credit toward their prison sentences for time which they have voluntarily spent in inpatient alcohol rehabilitation programs since their arrests.

As the majority agrees, it is clear that had the court ordered the appellee to participate in the inpatient rehabilitation programs which he attended, he would be entitled to credit for his time there. Our holding in Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967), supports this conclusion. In Jones, the appellant was charged with arson and committed to prison in default of bail. Subsequently, the court ordered the appellant to undergo an examination pursuant to the provisions of the Mental Health Act of 1951. Following the examination, the appellant was committed to Embreeville State Hospital. Subsequent to his release from the hospital, he pleaded guilty to the charge against him and was sentenced. Ruling that the appellant was entitled to credit on his sentence for the time spent at the hospital, we stated:

It seems too clear for argument that this appellant has been in custody from the date of the arrest to the present time. He has at all times been under the jurisdiction and subject to the authority of the court; he has been restrained of his liberties during the entire time of his confinement; and if he had violated this custody by “walking away” he would have been apprehended by the authorities and either returned to the hospital or to the county jail.

211 Pa.Super. at 370-71, 236 A.2d at 836. See also Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979) (appellant entitled to credit on his sentence for time spent at a comprehensive residential drug and alcohol treatment program).

In the instant case, the appellee, Mr. Conahan, did not wait for the court to order him to enter an inpatient rehabilitation program. Instead, he took it upon himself to seek treatment for his drinking problem. He voluntarily enrolled and participated in three inpatient alcohol treatment programs, at his own expense. Since completing these programs, Mr. Conahan has attended Alcoholic Anonymous meetings regularly and managed to maintain his sobriety. He has confronted his drinking problem and opted to secure treatment for it. By doing so, he has taken responsibility for his alcoholism and made headway to insure that he will not be driving on the road again while drunk.

If our ultimate goal is to prevent the tragic fatalities and wasteful destruction that is caused by drunk drivers, the legislature should make it possible for our courts to reward those individuals who enter inpatient alcohol rehabilitation programs of their own volitation and make a concerted effort to combat their alcoholism. By treating and curing their alcoholism, those DUI offenders who are alcoholics will gain control over their lives and thus, over their decision to drink and drive. Only when that happens will those individuals cease to be a danger to our society because of their drunk driving. It is within the best interest of our society, then, for us to encourage and reward the effort of those DUI offenders who voluntarily seek treatment for their alcoholism. Moreover, because those individuals who are convicted of DUI and make no effort to seek treatment for their alcoholism until ordered to undergo treatment by the court receive credit towards their prison sentence for their time in treatment, it is illogical that those individuals who are convicted of DUI and voluntarily seek treatment go unrewarded for their endeavor.

Consequently, I would urge the legislature to consider giving our courts the discretion to grant those individuals who voluntarily enter inpatient alcohol rehabilitation programs credit toward their prison sentences for time which they spend in those programs. With this change, those DUI offenders who suffer from alcoholism may be motivated to seek help for their problem instead of waiting for the court to require them to get help. Our courts, meanwhile, will retain the authority to determine for each individual whether the time he or she has spent voluntarily in an inpatient rehabilitation program is time for which that person should receive credit.

CAVANAUGH, Judge,

concurring:

I concur in the result reached by Hester, J. in his opinion. However, I leave for another day the issue of whether presence in a rehabilitation program pursuant to court order constitutes time in prison.

I join in President Judge CIRILLO’s recommendation to the legislature.

      . 75 Pa.C.S.A. § 3731(e) provides as follows:
      (e) Penalty.—
      (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:

        (ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years (emphasis added).

      . 42 Pa.C.S. § 9760(1) states:
      Credit against the minimum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time against in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

      . Rule 1406(b) provides:
      A sentence to imprisonment shall be deemed to commence and shall be computed from the date of commitment for the offense or offenses for which such sentence is imposed, which date shall be specified by the judge. Credit, to be calculated by the clerk of court, shall be given as provided by law for any days spent in custody by the defendant for such offense or offenses prior to imposition of sentence.


author: BECK, Judge:

text:
    565 A.2d 804
    In re In the Interest of M.B., K.B., J.B., L.B., Minors. Appeal of L.B., Mother.
    Superior Court of Pennsylvania.
    Argued Aug. 17, 1989.
    Filed Nov. 3, 1989.

      Ann G. Torregrossa, Chester, for appellant.
    Roger R. Ullman, Swarthmore, for appellees.
    George Koudelis, Upper Darby, for Children and Youth Services, participating party.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   BECK, Judge:

This case raises two issues: 1. whether an appeal will lie from an order of the juvenile court granting Children and Youth Services permission to change its goal regarding four dependent children from reunification with their mother to adoption; and 2. whether the juvenile court erred in approving the change of goal.

Appellant, L.B., is the mother of four children who have been adjudicated dependent and placed in foster care by Children and Youth Services of Delaware County (CYS). CYS has legal custody of the children. Throughout the history of CYS’ involvement with the children, the goal of CYS’ services had always been identified as returning the children to their own home.

By. order dated August 10, 1988, the trial court granted the request of CYS to change its goal for the children from reunification with their mother to adoption. The trial court order specifically provided: (1) that the children remain in foster care; (2) that legal and physical custody of the custody of the children remain with CYS; (3) that CYS be permitted to change the goal of its plan for the children to adoption; (4) that appellant cooperate with CYS by meeting regularly with social workers, giving them access to her home, visiting regularly with her children and participating in family therapy as directed by CYS; (5) that CYS and Jewish Family and Children’s Service be permitted to release pertinent information regarding the family to all treating professionals; and (6) that a court review be scheduled within (6) months or sooner at the request of any party. This appeal followed.

Initially, we address the motion of CYS to quash this appeal as interlocutory based upon the assertion that an order changing the goal of CYS regarding dependent children from reunification to adoption is not final and appealable. We find that the order is a final order appealable under 42 Pa.C.S.A. § 742 (1978). As the Supreme Court stated in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985):

It is axiomatic that an appeal will lie only from a final order unless otherwise permitted by statute or rule.
In T.C.R. Realty, Inc., supra, [T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977)] we stated:
We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Piltzer v. Independence Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974); James Banda Inc. v. Virginia Manor Apartments, Inc., 451 Pa. 408, 409, 303 A.2d 925, 926 (1973). Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant “out of court”. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). In Marino Estate, 440 Pa. 492, 292 [sic], 269 A.2d 645, 646 (1969), we said that an order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower court.

Id., 509 Pa. at 93, 501 A.2d at 213 (citations omitted).

The determination of finality is not to be made merely by ascertaining whether the order in question has technically ended the litigation between the parties. We must examine the practical consequences of the order to determine if the party challenging it has effectively been put out of court. See Ventura v. Skylark Motel, Inc., supra; Marino Estate, supra.

Ascertaining the practical significance of the order under review requires that We examine it in the context of the statutory and regulatory scheme governing disposition of dependent children. The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. (1982) (the “Act”), and various Department of Public Welfare regulations contain this scheme. The Act permits the trial court to determine whether a child is dependent within the Act’s definition of that term. Id. § 6341. Once the dependency determination is made, the Act then permits the court to make one of a number of initial dispositions of the child. The permissible alternatives include permitting the child to remain with his parents under conditions prescribed by the court or transferring temporary custody of the child to a private or public agency. Id. § 6351. The Act then provides for periodic disposition review hearings. At these hearings, the court is directed to:

(1) determine the continuing necessity for and appropriateness of the placement;
(2) determine the extent of compliance with the service plan developed for the child;
(3) determine the extent of progress made toward alleviating the circumstances which necessitated the original placement;
(4) determine the appropriateness and feasibility of the current placement goal for the child; and
(5) project a likely date by which the goal for the child might be achieved.

Id.

The court must then further determine what disposition of the child should be ordered as a result of the foregoing review. The court must:

(1) determine whether the child:
(i) should be returned to the parents, guardian or other custodian;
(ii) should be continued in placement for a specified period; or
(iii) because of the child’s special needs or circumstances, should remain in placement on a permanent or long-term basis; and
(2) order continuation, modification or termination of placement or other disposition best suited to the protection and physical, mental and moral welfare of the child.

Id.

The foregoing statutory section refers to the “service plan” and “goal” established for the dependent child. These references relate to the “family service plan” that county children and youth service agencies are required to formulate for dependent children receiving services from the agency. 55 Pa.Code § 3130.61 (1987). This, of course, includes children as to whom the county agency has been awarded legal custody and who are in foster care. See 55 Pa.Code § 3130.5 (1987).

The initial plan is to contain pertinent information concerning the child, his/her family, the circumstances giving rise to the present situation, the services to be provided the family and the objectives of those services. 55 Pa.Code § 3130.61. Except in situations requiring emergency placement, prior to placing a child in foster care the agency must identify an ultimate goal for the child being placed. The permissible goals are:

(i) return to own home
(ii) placement in the home of another relative
(iii) adoption
(iv) placement with legal guardian
(v) independent living
(vi) long-term placement

Id. § 3130.67.

Where a return to the child’s own home, or reunification of the family, is the goal, CYS provides “reunification services”. The Department of Public Welfare’s regulations define such services, including services aimed at avoiding foster care placement in the first place, as follows:

(1) Counseling service. Supportive and therapeutic activities provided to a child or a child’s family and directed at preventing or alleviating conditions, including crisis conditions, which present a risk to the safety or well-being of the child by improving problem-solving and coping skills, interpersonal functioning, the stability of the family, or the capacity of the family to function independently.
(2) Parent education. Practical education and training for parents in child care, child development, parent-child relationships and the experience and responsibilities of parenthood.
(3) Homemaker/caretaker service. Home help, home care skills instruction and/or child care and supervision provided to a child and the child’s family in the child’s home by a trained homemaker or caretaker.
(4) Part day service. Care and supervision for a child for less than 24 hours per day provided under a family service plan to enable the child to remain in or return to the child’s own home.

Id. § 3130.35.

Thus, the importance of the service plan and the goal it identifies for the child involved cannot be overemphasized. As was recently noted in an article appearing in the Children’s Rights Chronicle, produced by the Juvenile Law Center:

... the family service plan is the key to the dependency process. It provides a social work tool which spells out a goal and everyone’s tasks in reaching toward that goal. All parties to the plan should participate in its formation so that they understand the problems facing the family and also understand what is expected of them to remedy those problems.
By documenting what the parents, agency and other players in the process need to do, the FSP [the plan] is also legally valuable when efforts fail to reunify a family. ... the lawyers should elicit testimony so that the court sees a parent’s performance in reference to the guidelines spelled out through the FSP tasks. The court can thus determine when efforts toward reunification have been made but because of repeated lack of cooperation or failure, the necessary tasks cannot be performed and the goal should be abandoned.

Remarks of Sam Magdovitz of Juvenile Law Center, reprinted in Children’s Rights Chronicle, Volume Six, No. 3, at 1 (1987-88).

As this article and the Act itself make clear, there is a clear interaction between the role of CYS first in formulating and then in implementing the plan through the provision of services, the role of the parents in cooperating with CYS in receiving and benefiting from those services, and the role of the court in assessing whether there has been compliance with the plan and in determining the progress that has been made under it and whether the current goal continues to be appropriate. This interaction is most clear in the situation where the court is faced with the decision as to whether the goal as to a particular family must be changed from reunification to adoption. Here, pursuant to the Act, the court must carefully assess what the plan called for the parties to do, including what services CYS was required to provide, whether those services have in fact been provided, what results have been achieved, and, finally, whether the court should direct that efforts to achieve the present goal be continued or that a radical change be made so that efforts to reunify can be abandoned and adoption efforts begun.

Thus, the decision to allow CYS to change the service plan goal from reunification to adoption is not merely a minor decision permitting a slight shift in the emphasis of CYS’ social services. As a practical and legal matter, an order by the juvenile court changing the child’s placement goal from reunification to adoption ends any dispute that may exist between CYS and the parent as to the adequacy of CYS’s services aimed at reuniting the parent with his/her children and, of course, as to whether CYS has selected the most appropriate goal for this family. By allowing CYS to change its goal to adoption, the trial court has decided that CYS has provided adequate services to the parent but that he/she is nonetheless incapable of caring for the child and that, therefore, adoption is now the favored disposition. In other words, the trial court order is the decision that allows CYS to give up on the parent. As such, it is a final order from which the parent has an immediate right of appeal.

The question of the finality of an order changing a service plan’s goal to adoption has not directly been addressed in this Commonwealth. However, this question was addressed by the Commonwealth Court in dictum in Conklin v. Commonwealth, 105 Pa.Commw. 84, 522 A.2d 1207 (1987). The Conklin Court concluded, as we do, that such an order would be a final order.

The precise issue presented in Conklin was whether the initial recommendation by a CYS caseworker that a child’s placement goal be changed to adoption was appealable to the Department of Public Welfare Office of Hearings and Appeals under the Department’s regulations. The court found that although DPW had the power to direct that the county agency establish a goal for the child, it was the juvenile division'of the county court of common pleas that had sole jurisdiction to determine the propriety of that goal. Therefore, the court held that the caseworker’s decision “is clearly not a final order ... [because it is] subject to the approval of the [Juvenile] Court.” Id., 105 Pa.Commw. at 89, 522 A.2d at 1210. Significantly, however, the Conklin court indicated that the decision of the juvenile court approving or disapproving the caseworker’s recommendation as to changing the goal would be an appealable final order. The Court said:

A misconceived or otherwise disputed goal, rather clearly, may be overthrown or approved by juvenile court, and it is that action which is properly viewed as appealable.

Conklin, 105 Pa.Commw. at 90 n. 6, 522 A.2d at 1210 n. 6. (emphasis in original).

This conclusion is not affected by the fact that the order involved herein also directed that a further review of the case be undertaken in six months or earlier at the request of any party. In In Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979), a panel of the Superior Court noted that under the Juvenile Act, an adjudication of dependency becomes a final order only after the disposition has been completed. The panel stated:

The procedure contemplated by the statute included two steps. The first step was aimed at a determination of whether the child was dependent. If this issue were decided affirmatively, a second step then became necessary to determine final disposition. That disposition could permit the child to remain with his or her parents subject to conditions, or it could transfer custody elsewhere ... Until the second hearing had been held and a final disposition made, the litigation was not ended, and placement of the child had not been determined. A finding of dependency, therefore, was interlocutory.

264 Pa.Super. at 302, 399 A.2d at 787 (emphasis added). See also In the Interest of S.A.D., 382 Pa.Super. 166, 555 A.2d 123 (1989) (decision to place child in foster care with future hearing scheduled to review that determination held final and appealable); In re A.M., 365 Pa.Super. 516, 530 A.2d 430 (1987) (adopting reasoning in C.A.M.). Thus, in the context of dependency, this court acknowledges certain crucial points of finality when review is appropriate despite the fact that such determinations may later be modified by the trial court after further statutorily mandated review hearings are held. 42 Pa.C.S.A. § 6531(e) (requiring periodic disposition review hearings).

The fact that the trial court may later reconsider its order and change the service plan goal back to reunification does not undercut the immediate effect of this order. While this order is in effect, appellant will not receive the wide array of services that CYS must provide to a family where reunification is the goal and which, in this case, CYS has in fact been providing appellant. The effect of such a deprivation of services on a parent can only be to exacerbate his/her existing difficulties in parenting. Thus, the order has an immediate and detrimental effect on the parent.

In the instant case CYS argues that the juvenile court’s approval of the adoption goal cannot be considered final because appellant will be able to challenge the adoption goal in the Orphans’ Court in the event that CYS brings an action to terminate parental rights. We find no merit in this argument. In a termination proceeding the focus of the Orphans’ Court proceeding will be whether CYS has satisfactorily borne the burden of showing that the statutory requirements for termination have been met. Pa.Stat.Ann. tit. 23, § 2511 (Supp.1989). The Orphans’ Court will not review the proceedings before the juvenile court to change the service plan goal as that will not be the issue before it. Furthermore, since this case arises from Delaware County, the Orphans’ Court does not have jurisdiction to review the juvenile court’s determination as to a change in the plan. Except in Philadelphia and Allegheny County, under the Juvenile Act jurisdiction to determine the propriety of the placement goal is vested exclusively in the juvenile division of the court of common pleas. 42 Pa.C.S.A. § 6302 and official comment thereto. The jurisdiction of the Orphans’ Court is to terminate parental rights and is derived from a different statute. Pa.Stat.Ann. tit. 23, § 2102 and official comment thereto. Thus, the issues and proceedings before the juvenile court, on one hand, and the Orphans’ Court on the other,'are distinct.

In Conklin, supra, the Commonwealth Court recognized these distinct functions of the proceedings under the Juvenile Act and under the Adoption Act. There, the Orphans’ Court had refused to terminate parental rights, but the adoption goal was left standing. The Court said:

[I]f a termination petition [in Orphans’ Court] brought pursuant to the placement goal of adoption was unsuccessful, it might be thought appropriate for the agency to automatically abandon the goal of adoption and establish some other objective for the children.
We are not, however, advised that CYSD undertook to establish a new goal, nor do we believe that it was obliged to [do so].
Consequently, CYSD could be acting well within its discretion in maintaining as a goal adoption, notwithstanding temporary lack of success with that goal in Orphans’ Court.
Moreover — and as a fundamental matter — it is to be recalled that adjudication of the propriety of the placement goal is in the juvenile court division of the court, not the Orphans’ Court division. An Orphans’ Court judge may certainly refuse to grant a termination petition brought pursuant to a placement goal, but the goal itself may be subject to scrutiny in juvenile court.

Conklin, 105 Pa.Commw. at 91 n. 6, 522 A.2d at 1211 n. 6.

Accordingly, since the propriety of the adoption goal and the propriety of terminating parental rights are treated as separate and different matters, the order of the juvenile court “ends the litigation” on the service plan goal.

Moreover, even if a termination of parental rights proceeding would include a determination of the propriety of the service plan goal, we would nevertheless not deny appellant her right to appeal the instant order. When and whether CYS initiates termination proceedings is in its discretion. To deny this appeal could, therefore, leave appellant without services to which she might be entitled for an extended period of time.

Our decision that the subject order is final and immediately appealable fosters the public policies that underlie the Juvenile Act. One of the primary purposes of the Juvenile Act is to preserve the unity of the family whenever possible. 42 Pa.C.S.A. § 6302; Fallaro v. Yeager, 364 Pa.Super. 408, 528 A.2d 222 (1987); In Interest of Ryan Michael C., 294 Pa.Super. 417, 419, 440 A.2d 535, 536-37 (1982). See also In the Interest of S.A.D., 382 Pa.Super. at 171-74, 555 A.2d at 126-27 (both state and federal law require that reasonable efforts be made by CYS to prevent placement in foster care and to return a child in foster care to its own home; citing, inter alia, 42 U.S.C. § 671(a)(15) (1986)). To hold that the juvenile court’s approval of the adoption goal is not final and appealable would frustrate the purposes of the Juvenile Act by preventing review of a trial court decision declaring that in this case, the goal of reuniting this family cannot be achieved and, therefore, adoption is the suitable course for the children in question. Id. Moreover, it would shield from appellate review the trial court’s conclusions as to whether CYS was properly performing its duty to provide reunification services.

Since we conclude that the instant order is final and immediately appealable, we turn to a consideration of the substantive issues raised by appellant. These issues are: (1) whether the juvenile court erred in permitting CYS to change its goal to adoption where CYS failed to comply with state regulations requiring it to make efforts to reunite the family before seeking adoption as a goal; (2) whether appellant’s fourteenth amendment due process rights were violated when the court placed the burden on her to obtain parenting education services and to prove that she could adequately parent her children where CYS deprived her of the opportunity to demonstrate her parental capabilities; and (3) whether the court abused its discretion in permitting CYS to change its goal to adoption without considering long term foster care of the children as an alternative to adoption.

The trial court sets forth at length the history of appellant vis-a-vis her children and her contact with CYS. Contrary to appellant’s assertions that CYS has thwarted her attempts to improve her situation with the goal of reuniting her family, the trial court found that appellant seems incapable of “mastering the simple, basic skills of parenting” despite the efforts of CYS to promote appellant’s development of such skills. In addition, the court found unpersuasive the testimony of appellant’s friend and boyfriend regarding the extent to which they could assist appellant in establishing and maintaining an acceptable environment in which to raise her children.

Based upon our review of the record in this case, we find that the opinion of the trial court adequately sets forth the reasons for its decision to permit CYS to change the goal for appellant’s children from reunification to adoption and that those reasons fully support the conclusion that the goal should be changed.

Order affirmed.

      . As to three of the children, i.e. those that had been in foster care since 1984, CYS stated the goal as being "decision on permanent plan/return home". The apparent meaning of this statement of the goal was that CYS would attempt to enable the children to return home and, failing that, develop an alternative approach to the final disposition of the children. As to the fourth child, who was not adjudicated dependent until 1987, the goal was simply "return home”.

      . We recognize that the order under review does direct that appellant cooperate with CYS by participating in individual or family therapy as requested by CYS. This, of course, does not mean that appellant will continue to receive the variety of services that she had received through CYS when reunification was still the identified goal. As CYS has strenuously argued in support of changing the goal to adoption, and as the record in fact reveals, appellant has for several years received the types of reunification services listed in 55 Pa.Code 3130.35, reprinted above. The services have included intensive in-home assistance as well as mental health therapy. It is this level of services that may be discontinued if the goal of reunification is abandoned. Indeed, under a literal reading of the instant order, CYS need provide even the individual or family therapy that the order mentions only if it so desires. The order does not mandate a continuation even of this service to appellant.


author: TAMILIA, Judge:

text:
    565 A.2d 811
    COMMONWEALTH of Pennsylvania v. Alfred JONES, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1989.
    Filed Nov. 2, 1989.

      Daniel McGee, State College, for appellant.
    Ray F. Gricar, Dist. Atty., Bellefonte, for Com.
    Before McEWEN, TAMILIA and JOHNSON, JJ.
   TAMILIA, Judge:

Appellant Alfred Jones, Jr. was charged on October 4, 1985 with driving under the influence on the evening of September 30, 1985. Appellant applied for Accelerated Rehabilitative Disposition (hereinafter “ARD”) and was recommended for the program by the Centre County district attorney’s office. Appellant was placed on ARD status on February 13, 1986, and following the required hearing and colloquy the court entered an Order placing appellant under the supervision of the Centre County adult probation department for a period of twelve months from February 13, 1986 and subject to certain conditions. One of the enumerated requirements stated appellant “shall abide by and not violate any laws or statutes of this Commonwealth during his probationary period....” On February 4, 1987, the Centre County district attorney filed a petition to terminate appellant’s ARD status based on the filing of a criminal complaint on February 4, 1987, charging appellant with driving under the influence on January 29, 1987. Following a termination hearing on April 2, 1987, the court granted the petition by Order dated April 7, 1987. On April 13, 1987, the date of jury selection, appellant filed a motion to dismiss the case as violative of Pa.R.Crim.P. 1100 because appellant was not brought to trial within 180 days of the October 4, 1985 complaint. From April 13, 1987 to October 12, 1987, appellant obtained three continuances while awaiting disposition of his motion to dismiss. After a nonjury trial on November 20, 1987, appellant was found guilty of the offense charged. All post-trial motions for a new trial and in arrest of judgment having been denied, appellant brings this appeal from the October 20, 1988 judgment of sentence of a $300 fine, imprisonment of not less than 48 hours, psychiatric and psychological evaluations and counseling, safe driving school and suspension of driving privileges.

Appellant’s sole issue on appeal is the application of Pa.R.Crim.P. Rule 1100 to ARD, particularly termination of that status, and appellant has framed the questions involved as follows.

I. Is the 120 day period under Pa.R.Crim.P. 1100(e)(1) for commencing trial after a new trial has been awarded applicable to this case?
II. Is the time between the filing by the Commonwealth of a petition to revoke ARD and the disposition of that petition by the court excludable from the Rule 1100 period' for the commencement or [sic] trial?
Rule 1100. Prompt Trial
(c) (1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
(4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.
(d) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) The period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.
(e) (1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.
III. Did the Commonwealth meet its burden of proving that the time beyond the 180 day period under Rule 1100 was properly excluded?
IV. Was the Commonwealth required to seek an extension of time for commencement of trial under Rule 1100(c) in the circumstances of this case?

The basis of appellant’s argument is his contention Rule 1100(a)(2) established the applicable time period for the commencement of trial as 180 days from the date on which the complaint against him was filed.

Rule 1100(d) specifies the excludable time from the Rule 1100 period. Rule 1100(c) provides the procedures for extending the time for commencing trial for cause shown by the Commonwealth. All delay beyond the mandatory time period must either be excluded under Rule 1100(d) or extended under Rule 1100(c). There is no ambiguity which would permit an application of Rule 1100(e)(1) by analogy.

(Brief of appellant at pp. 6-7.)

We cannot agree. Pa.R.Crim.P. 178(3) provides the defendant must agree, as a requirement for admission to ARD, to waive his Rule 1100 protections “during the period of enrollment in the program.” The parties stipulated 132 days passed from the date the complaint was filed until appellant was placed in ARD, and the only Rule 1100 waiver appellant made was at the ARD hearing. There was no stipulation by the parties as to the length of the ARD waiver. Appellant contends the waiver only existed for the twelve-month period of the ARD, from February 13, 1986 to February 13, 1987, and therefore the remaining 48 days in which to commence trial expired on April 2, 1987.

Appellant correctly emphasizes although Rule 1100 must be interpreted as written, it should not be interpreted in a vacuum, but rather viewed by this Court in light of the purpose and intent of the rule and the consequences of a particular interpretation. 1 Pa.C.S. § 1921; Pa.R.Crim.P. 2.

Making such an analysis, then, we find appellant’s Rule 1100 waiver applied not just to the twelve-month period in which appellant’s ARD status placed him under the supervision of the adult probation department, but also for all such periods as his ARD status placed him within the possible control of the court. We agree with the hearing court “the wording of existing Pa.R.Crim.P. 1100, when read with Pa.R.Crim.P. 178, is not a model of clarity for our purposes instantly. We cannot agree with [appellant’s] interpretation of the Rule, however, nor can we countenance dismissal....” (Slip Op., Smith, J., 9/22/87, p. 2.) Our examination of the Rules of Criminal Procedure dealing with ARD (Rules 176-186) discloses no specific time limit for a Rule 1100 waiver, nor is there any procedure set forth in cases of ARD termination to determine Rule 1100 time limits. Under Rule 181, the court postpones further proceedings on the charges during the term of the ARD program, subject to the defendant fulfilling all conditions and requirements of the program. Rule 184 specifies the procedure for a termination petition for violation of the program’s conditions. When appellant was placed in ARD on February 13, 1986, the district attorney relinquished jurisdiction under Rule 181 while appellant maintained ARD status. Thus, the Commonwealth no longer had a pending case even if it desired to prosecute. Jurisdiction could not vest in the Commonwealth again unless and until a petition was filed under Rule 184, a hearing held to determine whether termination of ARD was proper, and an Order issued by the court terminating the program. At that time, the district attorney could proceed on the charges as before. We therefore find, as did the hearing court,

[T]he Commonwealth did not have any option or control over prosecuting the [appellant] until the Court made a ruling as to the termination of the [appellant]. Since ARD is by its very nature a diversionary program from which a defendant benefits, we believe it to be patently

unreasonable to expect or require the Commonwealth to proceed in any manner before there is a judicial determination on the termination request. (Emphasis in original.)

(Slip Op. at 3.)

Having determined the time between the filing by the Commonwealth of its petition to revoke ARD and the court’s disposition of that petition is excludable from the Rule 1100 period for commencement of trial, we also make two other related findings, dismissing claims by appellant. While appellant contends time under Rule 1100 began to run again on February 14, 1987, the day after ARD should have expired, we find the time did not begin to run again until April 7, 1987, when the court terminated appellant’s ARD status. The record indicates appellant was scheduled for jury selection April 13, 1987, but on that date he filed the first of three consecutive motions for trial postponement, further waiving Rule 1100 until October 12, 1987. From that date, the Commonwealth had 42 days in which to bring appellant to trial. As nonjury trial in this case was held November 20, 1987, we find the Commonwealth met the requirements of Rule 1100 by three days. Appellant also argues under the circumstances of this case the Commonwealth was required to seek an extension of time for commencement of trial under Rule 1100(c). Our foregoing discussion determined the Commonwealth’s excludable time under Rule 1100 ran from February 4, 1987 until April 7, 1987 and again from April 13, 1987 to October 12, 1987 during the period waived by appellant for trial postponement, and therefore this claim also is without merit.

While the trial judge’s Opinion at footnote 1 cites with approval the proposed amendment of Rule 1100 requiring commencement of a new trial within 120 days of termination of ARD, see 17 Pa.Bul. 6 (1987), we cannot follow that line of reasoning since, in fact, such a procedure was not promulgated and if it was, would not be applicable here because this case falls under the Rule prior to amendment. We do find that trial was commenced in a timely fashion as provided by the rules in force at the time covering this case.

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3731(a)(1), (4).

      . Rule 1100 was amended December 31, 1987, effective immediately. Unless otherwise specified, all references herein to Rule 1100 are to the Rule prior to its amendment, and listed in pertinent part as follows.

      . References to the above Slip Opinion are to the Memorandum and Order of the Honorable D. Brooks Smith on appellant’s Rule 1100 motion for dismissal.