author: WIEAND, Judge:

text:
    487 A.2d 1363
    Max A. HANKIN and Janet Hankin v. Moe Henry HANKIN and Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Estate of Samuel Hankin and Harriet Hankin, Benjamin R. Shanken and Pauline Shanken and Pan American Associates. Appeal of Harriet HANKIN and Estate of Samuel Hankin. Max A. HANKIN and Janet Hankin v. Moe Henry HANKIN and Sabina Hankin, Gertrude Hankin, Perch P. Hankin, Samuel Hankin and Harriet Hankin, Benjamin R. Shanken and Pauline Shanken and Pan American Associates. Appeal of Harriet HANKIN and Estate of Samuel Hankin. Max A. HANKIN and Janet Hankin v. Moe Henry HANKIN, Sabina Hankin, Gertrude Hankin, Perch P. Hankin, Samuel Hankin, Harriet Hankin, Benjamin R. Shanken, Pauline Shanken and Pan American Associates. Appeal of Moe Henry HANKIN, Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Benjamin R. Shanken and Pauline Shanken. Max A. HANKIN and Janet Hankin v. Moe Henry HANKIN and Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Estate of Samuel Hankin and Harriet Hankin, Benjamin R. Shanken and Pauline Shanken. Appeal of Moe Henry HANKIN, Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Benjamin R. Shanken and Pauline Shanken. Max A. HANKIN and Janet Hankin, Appellants v. Moe Henry HANKIN and Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Estate of Samuel Hankin and Harriet Hankin, Benjamin R. Shanken and Pauline Shanken. Max A. HANKIN and Janet Hankin v. Moe Henry HANKIN and Sabina Hankin, Gertrude Hankin, Perch P. Hankin, Estate of Samuel Hankin and Harriet Hankin, Benjamin R. Shanken and Pauline Shanken and Pan American Associates. Appeal of Harriet HANKIN and Estate of Samuel Hankin.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed Jan. 30, 1985.

      Theodore R. Mann, Philadelphia, for appellants (at 1304, 14 and 516) and appellees (at 154, 507 and 508).
    Franklin Poul, Philadelphia, for appellants (at 508) and for appellees (at 1304, 14, 154, 507 and 516).
    Philip D. Weiss, Norristown, for appellants (at 154 and 507) and for appellees (at 1304, 14, 508 and 516).
    Before WICKERSHAM, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

This is the fifth in a series of appeals from orders of the Court of Common Pleas of Montgomery County pertaining to the contentious dissolution and winding up of a partnership business known as the Hankin Family Partnership. The principal characters of this saga, which dates back to 1977, are five brothers and sisters and their spouses, all of whom have joined one side or the other in the dispute. The more populous faction, the Majority Hankins, is comprised of Moe Henry Hankin, his wife Sabina Hankin, Perch P. Hankin, his wife Gertrude Hankin, and Pauline (Hankin) Shanken and her husband, Benjamin R. Shanken. The minority members are Max A. Hankin, his wife Janet Han-kin, the Estate of Samuel Hankin, and his widow, Harriet Hankin.

In the matter now before the Court, six separate appeals from six different orders have been consolidated for argument. They can better be understood by at least a partial review of the litigation which has spanned a period of seven years and spawned four prior appeals. An action for dissolution and disposition of partnership assets was commenced by the minority on August 19, 1977. On April 2, 1979, the Honorable Louis D. Stefan, chancellor, determined (1) that the partnership had been dissolved in 1977; (2) that three alternate requests for liquidation presented by the minority should be denied; and (3) that the majority should wind up the partnership by selling its assets. This determination was affirmed on appeal. Hankin v. Hankin, 279 Pa.Super. 179, 420 A.2d 1090 (1980) (Hankin I) (allocatur denied). However, on July 10, 1981, the chancellor set aside his prior order in response to a petition by the minority and ordered that an immediate distribution in kind take place among the holders of the five partnership interests. The chancellor stated:

By reason of the various changes in circumstance ... since the date of the original Adjudication ... and [ ] considering that, in fact, majority Hankins have controlled the show since that date, with results that can be described only as disappointing[,] ... the Chancellor has concluded that distribution in kind [is justified].

A decree nisi was entered, therefore, which (1) scheduled a hearing for August 17, 1981 to determine the fair market value of the remaining partnership assets and, in contemplation of that hearing, authorized each side to employ, at partnership expense, an appraiser of partnership assets; (2) identified a procedure for effecting a distribution in kind; and (3) ordered that the status quo be maintained pending distribution. Exceptions were filed by the majority on July 17; but a Petition for Stay was denied by the chancellor on July 31. The exceptions were thereafter denied on August 12, and the hearing was rescheduled for August 24. On August 13, an appeal was filed. A renewed petition for a stay pending appeal was again denied by the chancellor. However, on August 19 Judge Watkins of the Superior Court granted a stay of all proceedings, including “the order pertaining to appraisals.” In a 2-1 decision filed December 18, 1981 (Popovich, J., dissenting), the Superior Court reversed the chancellor. Hankin v. Hankin, 302 Pa.Super. 295, 448 A.2d 1049 (1981) (Hankin II) (allocatur denied May 3, 1982; reargument denied August 17, 1982). The Court held that from the time of dissolution in 1977, “the majority partners, who are charged with the liquidation, have been hindered by the minority partners ... by litigation at every step of the way. Under all the circumstances,” said the Court, “it does not appear that the liquidating partners have had a reasonable, unhindered time in which to accomplish an orderly liquidation of such vast holdings and they should be granted another year to accomplish same.” Id., 302 Pa.Superior Ct. at 300, 448 A.2d at 1051. The Court concluded:

The order of the court below is reversed as to the selection process provided therein and the management and liquidation of the assets of the “Hankin Family Partnership” shall continue as provided in the Decree dated April 2, 1979 under the supervision of the court below for a period of one (1) year from the date of this opinion.

Id., 302 Pa.Superior Ct. at 301, 448 A.2d at 1052.

Prior to the decision in Hankin II, a hearing before Judge Stefan had been held to determine, inter alia, whether the majority was required to pay out of partnership funds a bill for $66,143.14 submitted in September by Reaves Lukens, an appraiser hired by the minority to appraise the Hankin Family Partnership assets pursuant to the chancellor’s order of July 10, 1981. Lukens testified that he had been ■retained by the minority on July 21, 1981 to do a complete appraisal and to be prepared to testify at a hearing to be held August 17. With the assistance of an order entered by the chancellor on July 28 directing the majority “to cooperate with Minority Hankins and the appraiser ... by providing them with immediate access to and copies of such data as they require to appraise the fair market value of those assets ... which [had] not yet been sold,” the appraisal was in fact completed by August 17, 1981. After the Superior Court reversed the distribution in kind order and remanded (Hankin II), the minority renewed its request that the chancellor direct the partnership to pay the fee of the appraiser as provided in the July 10, 1981 decree nisi. The chancellor, on November 29, 1982, issued a memorandum and order in which he concluded that the Superior Court’s reversal of his decree nisi in Hankin II had “finally decided the issue ... concerning the appointment of appraisers; and thus, the issue of payment by the partnership for such appraisal work.” “Accordingly,” held the Court, “it would be beyond the power of this Court now to direct the partnership to make payment to Reaves C. Lukens Company, as requested.” The minority has challenged this determination in an appeal by Harriet Hankin and the Estate of Samuel Hankin which has been docketed at 14 Philadelphia, 1983.

Also raised as an issue at 14 Philadelphia, 1983 is the November 29, 1982 denial by the chancellor of a petition by the Estate of Samuel Hankin and Harriet Hankin for a partial distribution to permit payment of federal estate taxes and Pennsylvania inheritance taxes owed by the Estate of Samuel Hankin. Samuel Hankin, M.D., a former Hankin partner, had died on February 13, 1981, and in December, 1981 his estate had asked the court to order the partnership to pay estate and inheritance taxes totalling approximately $575,000. Neither his estate nor his beneficiaries were able to pay the tax, it was asserted, because almost all of the estate’s assets consisted of unliquidated partnership holdings. Moreover, the petition averred, there was an agreement among the partners that expenses of this nature would be paid by the partnership. The chancellor denied the request, and we are asked to review and reverse that order in the present appeal.

In January, 1982, the minority petitioned the chancellor to enter an order directing reimbursement of Harriet Hankin and the Estate of Samuel Hankin for counsel fees in the amount of $500,000 which had allegedly been paid in furtherance of liquidation proceedings. By order of November 29, 1982, accompanied by memorandum, the chancellor denied such reimbursement. The minority appealed. That appeal is also docketed at 14 Philadelphia, 1983.

Following this Court’s decision in Hankin II, the minority again requested the chancellor to order distribution in kind. This was based upon evidence arising after the appeal to the Superior Court “that Majority Hankins were not engaging in bona fide efforts to sell the partnership assets.” On March 30, 1982, after hearing, the chancellor denied the minority’s petition because “the chief intention of the Superior Court,” as he interpreted the opinion, “was to continue with the liquidation by the majority, with court supervision, until at least December 18, 1982. The minority appealed at 1304 Philadelphia, 1982.

Also docketed at 1304 Philadelphia, 1982 is an appeal by the minority from the chancellor’s denial of a request for injunctive relief, filed in October, 1981, to enjoin the majority from continuing to employ children of the majority partners at $26,000 per year and from continuing to pay out of partnership funds legal fees to the law firm of Hankin, Hankin and Hankin. The minority also sought an order directing the majority to reimburse the partnership for such payments or, in the alternative, to compel the payment of salaries to children of the minority who had been discharged at the time of dissolution. The chancellor denied injunctive relief, and that order has also been made the subject of an appeal.

Finally, the majority has filed a cross-appeal, docketed at 154 Philadelphia, 1983, from a November 29, 1982 order of the chancellor in which the majority partners were directed to reimburse the partnership for counsel fees paid to two law firms, White and Williams and McTighe, Weiss & Stewart, since April 2, 1979. The required reimbursement totalled $136,944.52. This order also enjoined the majority from making any further payments of counsel fees out of partnership funds without prior approval by the court.

Three months after the last of these appeals, Judge Stefan rejected the majority’s request for an extension of time within which to effect liquidation and appointed a receiver to complete liquidation. He further ruled that “[a]n attempt to distribute in kind is now infeasible.” Exceptions were denied on May 9 and yet another appeal was taken to the Superior Court. Argument on that appeal was expedited and on September 23, 1983, this Court reversed the chancellor’s appointment of a receiver. Hankin v. Hankin, 319 Pa.Super. 147, 465 A.2d 1272 (1983) (Hankin IV). In an opinion by Judge Rowley, the Court noted that a receiver should be appointed only in an extreme case and under extraordinary circumstances. “In this case,” held the Court, “there has been no finding of waste, dissipation of assets, fraud or mismanagement.” The mere fact that the minority partners and the court believe that liquidation is taking too long was held to be insufficient reason to support appointment of a receiver. Id., 319 Pa.Superior Ct. at 149, 465 A.2d at 1273. A petition for allocatur to the Supreme Court was granted on August 22, 1984; and that appeal is pending. Hankin v. Hankin, 22 E.D. Appeal Dkt. 1984. In the meantime, liquidation by the majority has continued under the supervision of the chancellor.

A court of equity has wide discretion in supervising the winding up of a dissolved partnership and is empowered to make such orders as it may determine necessary to serve the best interests of all parties. Hankin I, supra 279 Pa.Super. at 213, 420 A.2d at 1108. “Moreover, the court’s supervisory power over the liquidation of a partnership necessarily includes the right to determine the sort of sale to be conducted.” Id. The burden is on the appellants to prove that the chancellor has clearly abused his discretion. Id., 279 Pa.Superior Ct. at 214, 420 A.2d at 1109. “[T]he chancellor’s findings of fact will not be disturbed unless they are unsupported by adequate evidence.” Kazanjian v. New England Petroleum Corp., 332 Pa.Super. 1, 4, 480 A.2d 1153, 1155 (1984). See also: Moore v. Mobil Oil Co., 331 Pa.Super. 241, 245 n. 1, 480 A.2d 1012, 1014 n. 1 (1984); Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., 327 Pa.Super. 99, 102, 475 A.2d 117, 118 (1984). On appeal, “our function is not to substitute our view for the chancellor’s but, rather, to determine whether a judicial mind, on due consideration of the evidence as a whole, could reasonably have reached the conclusion of the chancellor.” Galford v. Burkhouse, 330 Pa.Super. 21, 28, 478 A.2d 1328, 1332 (1984), quoting Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980). On this basis we review the issues raised in the instant appeals.

1304 Philadelphia, 1982

This appeal, as we have observed, challenges (1) the chancellor’s denial of a second request for distribution in kind, and (2) the chancellor’s refusal to enjoin the continued employment of children of the majority and the majority partners’ law firm. We will affirm these orders.

There is no question that the Superior Court in Hankin II expressly granted the majority an additional year in which to complete liquidation. The intervening evidence which the minority cites was not such that the chancellor can be said to have abused his discretion by following the mandate of the Superior Court. Indeed, it might well be argued that it would have been a clear abuse of discretion if the chancellor had either ignored or attempted to overrule the Superior Court’s order by directing distribution in kind prior to expiration of the extension ordered. Moreover and in any event, this issue is now moot. One year after the Superior Court’s order, Judge Stefan did in fact grant relief in the form of the appointment of a receiver; and the Superior Court again reversed. See: Hankin IV, supra. Under these circumstances, it would be nonsensical to hold that the chancellor’s order denying distribution in kind almost three years ago was an abuse of discretion and must now be reversed.

In denying injunctive relief the chancellor observed that a prior request for similar relief had been denied, and that this denial had been affirmed by the Superior Court in Hankin I. In an opinion by Judge (now President Judge) Spaeth, the Court had there said:

[T]he present record does not contain evidence of either a conflict of interest or waste sufficient for this court on appeal to order the [family] law firm disqualified. The law firm may now be performing some valuable services to the partnership by treating the routine legal matters generated by the liquidation and the normal partnership business.... Moreover, there is no convincing evidence that the law firm is at present acting other than in support of the liquidation ordered by the chancellor.

Id. 279 Pa.Super. at 217, 420 A.2d at 1110.

In response to a request by members of the minority that their children be reinstated as employees of the partnership, which request had been denied by the chancellor, the Court said:

It may well have been unfair to [the minority] and their children that the children were fired or forced out by [the majority] while [the majority’s] children remained employed by the partnership. If [the minority’s] children believe that they have any legal claim, for instance, for breach of contract, they may initiate an appropriate action. However, as an appellate court, this court will not order a [trial] court engaged in supervising the liquidation of a partnership to require that certain employees be rehired and reimbursed at $26,000 a year.

Id., 279 Pa.Superior Ct. at 218, 420 A.2d at 1111.

The instant petition for injunctive relief was nothing more than a renewal of the same request which had previously been denied. The chancellor found as a fact that “[a]ll that the Law Firm [Hankin, Hankin & Hankin] is doing really is the ministerial function, the paperwork and the like.” (N.T. March 30,1982, at p. 128). He held, therefore, that another law firm need not be substituted to perform such ministerial tasks. With respect to the majority’s children, the chancellor held that “on the record, as it now exists ” (N.T. March 30, 1982, at p. 135) (emphasis added), there is no justification for enjoining the majority partners from employing their own children in the partnership during liquidation.

It seems apparent, therefore, that the chancellor’s order was supported not only by this Court’s decision in Hankin II but also by independent findings with respect to succeeding events and circumstances. We perceive no abuse of discretion. It would be inappropriate for an appellate court to engage in piecemeal, second-guessing of ancillary orders of a court of equity engaged in supervising the liquidation of a partnership with respect to employment practices of the partnership during liquidation. If the personnel of the partnership are negligent in liquidating the assets of the partnership or exercise poor judgment or bad faith, compensation for any loss caused thereby can be accomplished in the chancellor’s final order of distribution.

The orders appealed from at No. 1304 Philadelphia Term, 1982 are affirmed.

H Philadelphia, 1983

This appeal by minority members Harriet Hankin and the estate of her late husband Samuel Hankin" involves three issues:

(1) The denial of a request for an order directing the partnership to pay the appraiser retained by the minority;

(2) The denial of the minority’s request for reimbursement of counsel fees expended by them; and

(3) A refusal to order the partnership to pay the state inheritance and the federal estate taxes owed by the Estate of Samuel Hankin, deceased.

As a general rule, an appeal will lie only from a final order unless otherwise permitted by statute. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977). A final order is one which ends the litigation or, alternatively, disposes of the entire case. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-545 (1978). An exception to the rule that appeals may be taken only from final orders has been recognized with respect to orders which are collateral to the main cause of action and involve rights too important to be denied review. Praisner v. Stocker, 313 Pa.Super. 332, 342-343, 459 A.2d 1255, 1260-1261 (1983). The requirements for appealability of collateral orders, as accepted by the courts of this Commonwealth, was first stated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Relying upon and following the Supreme Court decision, the Pennsylvania courts have held that an ancillary order is 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.

Pugar v. Greco, supra 483 Pa. at 73, 394 A.2d at 545. See also: Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975).

When these requirements are applied to the orders from which this appeal was taken, it is readily apparent that the orders denying claims for an appraiser’s fee and for counsel fees are not final. Although it is true that these orders are collateral to the main proceeding, it is equally true that the questions presented thereby will be neither lost nor impaired if review is postponed until a final order of distribution has been entered. The parties to these proceedings have been prolific in generating collateral orders and then appealing to this Court for review of those orders. We decline to conduct a piecemeal review of the liquidation proceedings being supervised by an able trial judge. Questions pertaining to appraisers’ fees and counsel fees can better be reviewed after final distribution has been ordered. Our quashing the appeal from these orders will allow the chancellor to reconsider these requests, if he deems it necessary, prior to entering a final decree distributing partnership assets. After a final order has been entered, all aspects of the distribution can be reviewed in one appeal.

The order denying a petition by the Estate of Samuel Hankin, deceased, for partial distribution to enable it to pay death taxes presents a different picture. It is based upon the alleged unavailability of other estate assets sufficient to pay taxes. This claim involves an alleged right which is not only important but which, if review is postponed until entry of a final decree, will be irreparably lost. Therefore, we will conduct a review of the order.

The chancellor rejected the petition for partial distribution because he found that there had been no agreement among the partners with respect to the use of partnership assets to pay taxes becoming due in the event of a partner’s death and because the majority had committed no egregious conduct in its liquidation efforts. The petition, however, had not been premised only upon agreement. It was also contended that the Samuel Hankin Estate was unable to pay federal estate and state inheritance taxes because, except for an interest in the Hankin Family Partnership, the estate had inadequate assets. Because of the chancellor’s ruling, the record does not permit a determination whether this averment is factually correct. Similarly, it cannot be ascertained from the record whether the liquidation of partnership assets has progressed sufficiently to permit a partial distribution which would enable the Samuel Hankin Estate to pay these taxes. Finally, it is impossible to determine whether a partial distribution or advance can be made without prejudicing the rights of third persons or the rights of the remaining partners. Cf. In re Estate of Mellon, 455 Pa. 294, 314 A.2d 500 (1974).

We conclude that the absence of a buy-sell or comparable agreement to determine the rights of the partners upon the death of one of them is not controlling of the petition for partial distribution requested by the Estate of Samuel Hankin, deceased. To deny the petition for that reason alone, without further considering the averments of the petition, was an abuse of discretion. Furthermore, it was not a prerequisite to such relief that the majority be found guilty of misconduct or mismanagement during liquidation. Therefore, we will vacate the order denying the petition for partial distribution and remand for further proceedings consistent with the foregoing opinion.

Appeals from the orders denying immediate reimbursement for or payment of appraisal and counsel fees are quashed. The order denying the petition of the Estate of Samuel Hankin, deceased, for partial distribution is vacated, and said petition is remanded for further consideration consistent with the foregoing opinion.

No. 154 Philadelphia, 1983

The majority’s cross-appeal is from an order enjoining the payment of fees to the majority’s counsel from partnership assets and directing the majority to reimburse the partnership for counsel fees previously paid by the partnership. We accept this appeal and review the court’s order pursuant to Pa.R.A.P. 311(a)(4).

The general rule is that each party is responsible for his own counsel fees. Estate of Wanamaker, 314 Pa.Super. 177, 179, 460 A.2d 824, 825 (1983). Here, the chancellor appropriately observed that the majority, by using partnership assets to pay its counsel fees, had been passing forty percent of those fees through to the minority. The fees, the chancellor found, had been incurred to further the interests of the majority, specifically in resistance of the various minority efforts to achieve what the minority deemed to be more efficient, effective and fair distribution of partnership assets. The chancellor concluded: “There is simply no basis for the assertion that the 40 percent minority interest must sit back and allow the majority to proceed carte blanche, with no contesting of their proposed actions, as the years roll by, and the horizon of dissolution fades ever deeper into the future. There are bona fide areas of dispute between majority and minority which the minority should have the right to litigate without being saddled with the entire cost of their own legal fees and 40 percent of the majority’s legal fees.” We agree. There was no abuse of discretion in the entry of an order directing the majority to pay its own counsel fees and enjoining the use of partnership assets for that purpose. Moreover, liability to pay counsel fees can better be determined at the time of final distribution.

The order which is the subject of appeal at No. 154 Philadelphia, 1983 is affirmed without prejudice to any future determination regarding liability for counsel fees.

      . A series of memoranda and orders was issued by Judge Stefan on November 29, 1982. All parties filed exceptions. By memorandum and order of January 31, 1983, the chancellor dismissed the exceptions. Appeals from the order dismissing exceptions are docketed at 508 Philadelphia, 1983 (Appeal of Max and Janet Hankin); 507 Philadelphia, 1983 (Appeal of Majority Hankins); and 516 Philadelphia, 1983 (Appeal of Harriet Hankin and the Estate of Samuel Hankin). All issues in these appeals are subjects of the appeals discussed in this opinion, and they will not be discussed separately. In dismissing the exceptions, the trial judge noted that all prior orders had been intended as final orders and that the dismissal of exceptions was only a formal exercise to insure finality.

      . On February 26, 1982, the Superior Court affirmed per curiam an order entered by the chancellor and which had denied in 1979 a second minority petition for the appointment of a receiver. Hankin v. Hankin, 298 Pa.Super. 559, 442 A.2d 362 (1982) (Hankin III). This appeal has no relevancy to the issues in the present appeal.

      . Hankin, Hankin & Hankin is a law firm comprised of majority partners Moe Hankin, Perch Hankin and Lowen Hankin, son of Moe Hankin.

      . The extension granted by the Superior Court in Hankin II had expired on December 18, 1982.


source: Caselaw Access Project

license: Public Domain

text:
    487 A.2d 1372
    Stephen S. NOETZEL and Marilyn B. Noetzel, his wife, Appellees, v. GLASGOW, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 27, 1984.
    Filed Jan. 30, 1985.
    Reargument Denied March 7, 1985.

      Edward W. Mullinix, Philadelphia, for appellant.
    John M. Sheridan, Norristown, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

This is an appeal from an order denying a petition to strike/open a judgment for $300,000 which was recovered in West Virginia and transferred to Montgomery County, Pennsylvania, pursuant to the Uniform Enforcement of Foreign Judgments Act. Appellant contends that the West Virginia judgment is not entitled to full faith and credit in Pennsylvania because it was obtained in violation of due process requirements. We disagree and, therefore, affirm the order refusing to strike the judgment. However, we will direct that the judgment be amended to reflect partial satisfaction effected by payments admittedly received in West Virginia.

Stephen and Marilyn Noetzel, husband and wife, brought suit in the Circuit Court of Kanawha County, West Virginia, to recover for personal injuries sustained in an automobile accident on Interstate Route 79 in Kanawha County. Named as defendant was Glasgow, Inc., a Pennsylvania corporation, which had contracted with the West Virginia Department of Highways to perform road work. It was alleged in the Noetzel complaint that Glasgow had negligently erected “Detour” barriers, without proper warning signs, thus causing the Noetzel vehicle to crash. Service of the complaint was effected on June 18, 1979 by making service on the Secretary of State of West Virginia who, pursuant to W.Va.Code § 31-1-15, had been designated attorney-in-fact for foreign corporations. The Secretary of State mailed the complaint to Glasgow’s West Virginia agent, C.T. Corporation System, in Charleston, West Virginia. It was there received by W.M. Woodroe, who forwarded it to the C.T. Corporation in Philadelphia. Finally, it was transmitted to the offices of Glasgow’s general counsel. By inadvertence and mistake thereafter occurring, the complaint was not answered; and, on August 13, 1979, a default judgment was entered without further notice to Glasgow. On March 19, 1980, the action was certified for jury trial to determine damages. Again, no notice was given to Glasgow, and the trial to assess damages proceeded ex parte on June 25, 1980. The verdict awarded damages to Stephen Noetzel in the amount of $100,000 and to Marilyn Noetzel in the amount of $200,000.

On February 27, 1981, the Noetzels issued a writ of execution and garnished moneys payable to Glasgow by the West Virginia Department of Highways. Glasgow then learned of the judgment which had been entered against it for the first time and moved, on March 23, 1981, for relief from the judgment. Its request was denied by the West Virginia court on April 9, 1981. The court held that service had been lawful, that Glasgow had been entitled to no further notice after it had failed to enter an appearance, and that Glasgow had failed to prove fraud in obtaining the judgment. Moreover, the Court held, the averments of Glasgow’s motion that default had occurred as a result of inadvertence, mistake, surprise or fraud “were not made within eight (8) months of the entry of the judgment order herein and therefore [pursuant to W.Va.R.Civ.P. 60(b)] cannot be considered as grounds to set aside the ... order.” No appeal was taken from that order. However, on May 22, 1981, Glasgow filed a petition for writ of prohibition in the Supreme Court of Appeals of West Virginia seeking to prohibit further proceedings on the judgment. Relief was denied on June 2, 1981. An attempt to obtain relief in the United States District Court for the Southern District of West Virginia was also unsuccessful. See: Glasgow, Inc. v. Noetzel, 556 F.Supp. 595 (S.D.W.Va.1983).

As a result of attachment execution issued against the Department of Highways in West Virginia, the Noetzels were able to collect $218,811.54 on account of their judgment. Then, on December 22, 1981, they filed in the Court of Common Pleas of Montgomery County, Pennsylvania, a praecipe for judgment “in the amount of [$300,000] in favor of [plaintiffs, Stephen S. Noetzel and Marilyn B. Noetzel pursuant to the Uniform Enforcement of Foreign Judgments Act.” The Court of Common Pleas denied a motion to open/strike the judgment thus recorded in Montgomery County, and Glasgow appealed. It contends that “the Noet-zels manipulated the procedural rules [in West Virginia] in a manner that deprived Glasgow of its due process rights to notice and an opportunity to be heard” and that “Rule 60(b) of the West Virginia Rules of Civil Procedure is unconstitutional because it provides an absolute bar to relief from judgments entered without notice or hearing by plaintiffs who deliberately conceal the judgments until the limited time for seeking relief ha[s] expired.” Because its due process rights were violated, Glasgow contends, the judgment against it is not entitled to full faith and credit and therefore is not entitled to be accepted or enforced in Pennsylvania pursuant to the Uniform Enforcement of Foreign Judgments Act.

The Uniform Enforcement of Foreign Judgments Act provides:

(b) Filing and status of foreign judgments. — A copy of any foreign judgment including the docket entries incidental thereto authenticated in accordance with act of Congress or this title may be filed in the office of the clerk of any court of common pleas of this Commonwealth. The clerk shall treat the foreign judgment in the same manner as a judgment of any court of common pleas of this Commonwealth. A judgment so filed shall be a lien as of the date of filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner.

42 Pa.C.S. § 4306(b). A “foreign judgment” is defined in the Act as “any judgment, decree, or order of a court of the United States or of any other court requiring the payment of money which is entitled to full faith and credit in this Commonwealth.” 42 Pa.C.S. § 4306(f).

A foreign judgment is entitled to full faith and credit in Pennsylvania so long as “there was jurisdiction by the court which originally awarded the judgment, see Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974), and the defendant had an opportunity to appear and defend, see Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 361 A.2d 660 (1976).” Everson v. Everson, 494 Pa. 348, 361, 431 A.2d 889, 895-896 (1981). The courts in Pennsylvania will refuse to give full faith and credit to a foreign judgment if it was obtained in derogation of a basic, due process right of the defendant. Hanson v. Denckla, 357 U.S. 235, 255, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958). However, when “the court of another state has purported to act on the merits of a case, its jurisdiction to do so and the regularity of its proceedings are presumptively valid.” Barnes v. Buck, 464 Pa. 357, 364, 346 A.2d 778, 782 (1975). The party challenging the validity of the judgment, therefore, bears the burden of showing any irregularity in the proceedings. Commonwealth, Department of Transportation v. Granito, 70 Pa.Cmwlth. 123, 127, 452 A.2d 889, 891 (1982).

The first problem which appellant encounters is that a prior request for relief from the default judgment was made to the court in West Virginia and was denied. The West Virginia court, which clearly had jurisdiction to determine the integrity of its own judgment, upheld the finality of appellees’ judgment against appellant in the face of a petition by appellant which challenged its validity. In denying appellant’s request for relief, the court found that the judgment had not been fraudulently obtained and that there was neither factual nor legal basis for relief. This determination of the West Virginia court, from which no appeal was taken, is res judicata with respect to the validity of the judgment. When a court of competent jurisdiction has determined a litigated cause on its merits, the judgment entered and not reversed on appeal is, forever and under all circumstances, final and conclusive as between the parties to the suit and their privies, in respect to every fact which might properly be considered in reaching a judicial determination of the controversy, and in respect to all points of law there adjudged, as those points relate directly to the cause of action in litigation. Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 498, 327 A.2d 72, 74 (1974); Stevenson v. Silverman, 417 Pa. 187, 191, 208 A.2d 786, 787-788, cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965). A final, valid, judicial determination on the merits by a court of competent jurisdiction bars any future litigation between the same parties on the same cause of action. Id., 417 Pa. at 190, 208 A.2d at 787; Goldstein v. Ahrens, 379 Pa. 330, 108 A.2d 693 (1954). It bars relitigation of issues raised, as well as arguments which might have been raised. General Accident Fire & Life Assurance Corp. v. Flamini, 299 Pa.Super. 312, 316, 445 A.2d 770, 772 (1982). This doctrine of res judicata is a part of the “national jurisprudence” by virtue of the full faith and credit clause of the federal constitution. Riley v. New York Trust Co., 315 U.S. 343, 349, 62 S.Ct. 608, 612, 86 L.Ed. 885, 891 (1942). It follows that appellant is precluded from attacking the validity of the West Virginia judgment a second time in the courts of Pennsylvania. Indeed, it was in part because of principles of res judicata that the federal court refused to consider appellant’s request for relief in that court. Glasgow, Inc. v. Noetzel, supra.

Appellant contends that because of the eight month statute of limitations provided in West Virginia Rule 60(b), infra, it was foreclosed from arguing the merits of its claim that the judgment was invalid because of the unconstitutionality of West Virginia’s procedural rules. There is no merit in this contention. Rule 60(b)’s eight month limitation period applies only to attacks on the judgment for reasons of mistake, inadvertance, surprise, fraud and things of that nature. A judgment debtor is not precluded by the limitation period from attacking a judgment which is void. W. Va.R. Civ.P. 60(b)(4). “Embraced within the ambit of Rule 60(b)(4) are those judgments which are void by reason of a lack of due process. Glasgow could thus have raised its constitutional claim in the courts of West Virginia when it sought relief from the default judgment there.” Glasgow, Inc. v. Noetzel, supra at 599 (citation omitted). Appellant is barred by principles of res judicata from raising this claim not only in the federal courts but also in the courts of Pennsylvania.

Appellant’s challenge to the monetary judgment on due process grounds is also lacking in substantive merit. That the courts of West Virginia had in personam jurisdiction over appellant is clear. Appellant was properly served with a copy of the initial complaint, and notice of appellees’ action was received. Although conceding the court’s in personam jurisdiction, appellant argues that due process was violated by West Virginia procedure which permitted the entry of a default judgment and a hearing to determine damages without additional notice and an opportunity to be heard. This procedure when coupled with an eight months’ limitation on the right to petition to open the default judgment, Glasgow contends, was offensive to due process.

W.Va.R.Civ.P. 5(a) provides, in part, as follows:

No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

W.Va.R.Civ.P. 60(b) provides, in part, as follows:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), (3) and (6) not more than eight months after the judgment, order, or proceeding was entered or taken.

(Emphasis added). Appellees waited until more than seven months had elapsed following the entry of the default judgment. They then asked for a hearing to determine the amount of damages sustained in order to give monetary significance to their judgment. This hearing was held more than eight months after the entry of default judgment and without notice to Glasgow, pursuant to W.Va.R.Civ.P. 5(a). We are not called upon to review the wisdom of procedural rules which permit such a result. We must determine only whether the procedure established by rule in West Virginia violated rudimentary principles of due process. See: Everson v. Everson, 264 Pa.Super. 563, 574, 400 A.2d 887, 893 (1979), aff'd as modified, 494 Pa. 348, 431 A.2d 889 (1981).

Notice, the most basic requirement of due process, must “be reasonably calculated to inform interested parties of the pending action, and the information necessary to provide an opportunity to present objections. The form of the notice required depends on what is reasonable, considering the interests at stake and the burdens of providing notice.” Pennsylvania Coal Mining Association v. Insurance Department, 471 Pa. 437, 452-453, 370 A.2d 685, 692-693 (1977). See also: Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314-315, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950); Stateside Machinery Co. v. Alperin, 591 F.2d 234, 241 (3d Cir.1979); Celane v. Commonwealth, Insurance Commissioner, 51 Pa.Cmwlth. 633, 635, 415 A.2d 130, 132 (1980). As long as a method of service is reasonably certain to give notice to a defendant that an action is pending against him, the fact that such defendant fails to receive actual notice does not invalidate service on due process grounds. Stateside Machinery Co. v. Alperin, supra at 241. The substituted service on the West Virginia Secretary of State in this case and his subsequent notification of Glasgow’s West Virginia agent was in fact reasonably calculated to inform Glasgow of the action and was adequate to satisfy due process requirements. Moreover, the notice in this case was received in fact by Glasgow’s representatives. The failure to act in pursuance thereof was attributable either to inadvertence or carelessness. Due process did not require that Glasgow receive repeated notices thereafter. When Glasgow failed to appear in response to initial service, due process did not require that it again be invited to participate in the proceedings. Appellees were not required to obtain Glasgow’s permission to proceed further. Due process did not require notice of appellees’ intent to enter a default judgment or of their intent to take procedural steps to reduce their judgment to a monetary amount. When Glasgow failed to evidence interest in defending the action following service of initial process, due process did not require that appellees invite them to join the proceedings thereafter. See: Federal Deposit Insurance Corp. v. Spartan Mining Co., 96 F.R.D. 677 (S.D.W.Va.1983). See also: Anderson v. Tay-lorcraft, Inc., 197 F.Supp. 872, 873 (W.D.Pa.1961) (in absence of appearance defendant not entitled to notice of nonjury trial).

Similarly, we are unable to perceive constitutional infirmity in Rule 60(b) which, in effect, imposes an eight months’ limitation on motions to open default judgments where the default was caused by "mistake, inadvertence, surprise, excusable neglect or unavoidable cause.” Subject only to the requirement that the limitation must be reasonable, statutes of limitation pertain to remedies and do not impair fundamental rights. Gravinese v. Johns Manville Corp., 324 Pa.Super. 432, 441, 471 A.2d 1233, 1238 (1984). The West Virginia rule is reasonable. It has a rational and valid purpose. It provides for the finality of judgments entered by default after a reasonable time for seeking relief has expired. The establishment of a fixed period of limitation was properly a matter within the discretion of the courts of West Virginia. We will not review possible imperfections in this West Virginia procedure. We determine only whether the imperfections are so egregious as to offend due process. We conclude that they are not. The fact that appellees relied upon the West Virginia rule to establish the finality of their judgment and thereafter established the monetary amount of their judgment and pursued execution thereon did not render the period of limitations unreasonable or invalid. If appellees used the rule for their own purposes, it was appellant’s default which made it possible for them to do so.

We conclude, therefore, that the Court of Common Pleas in Montgomery County properly denied appellant’s motion to strike the judgment transferred from West Virginia. That judgment was not offensive to due process and was thus entitled to full faith and credit in Pennsylvania. It can properly be enforced by the courts of this Commonwealth pursuant to the Uniform Act.

It is clear, however, that the amount of appellees’ judgment is incorrect because of partial satisfaction effected in West Virginia. Appellant’s petition to open or strike the judgment averred that the sum of $218,811.54 had been realized by garnishment proceedings in West Virginia, and appellees’ answer contained an admission that this was correct.

“A judgment should only be stricken if the record reveals a defect on its face____ The fact that the judgment was entered was not the mistake and thus the entire judgment should not be stricken.” B.C.Y., Inc., Equipment Leasing Associates v. Bukovich, 257 Pa.Super. 121, 125, 390 A.2d 276, 278 (1978) (footnote added). However, a court has an inherent power to correct the amount of a judgment and may do so on its own motion. Wilson Laundry Co. v. Joos, 200 Pa.Super. 595, 601, 189 A.2d 917, 920 (1963). Under the circumstances of this case, we will remand to the trial court to enter an order amending the judgment to reflect the partial satisfaction effected in West Virginia.

Remanded with directions to amend the judgment by reducing it according to the partial satisfaction admittedly effected in West Virginia. The order refusing to strike or open the judgment is otherwise affirmed. Jurisdiction is not retained.

      . 42 Pa.C.S. § 4306.

      . A similar result could not occur in Pennsylvania. See: Pa.R.C.P. 236, 237.1.

      . The courts of Pennsylvania have uniformly refused to open default judgments unless a petition to open is filed promptly. See: Ridgid Fire Sprinkler Service, Inc. v. Chaiken, 333 Pa.Super. 213, 218, 482 A.2d 249, 252 (1984); Dodson v. N. John Cunzolo & Associates Architectural Clay Products, Inc., 326 Pa.Super. 283, 288-289, 473 A.2d 1093, 1096 (1984); Bottero v. Great Atlantic & Pacific Tea Co., 316 Pa.Super. 62, 68-70, 462 A.2d 793, 797-798 (1983).

      . Appellant has argued that the Pennsylvania judgment should be stricken because it combined separate judgments entered in West Virginia in favor of husband and wife. We have rejected this argument. The Pennsylvania judgment is clearly supported by the record in West Virginia, and it is not rendered defective because both judgments were consolidated in a joint proceeding in this state.

      . Appellees’ counsel properly certified that the West Virginia judgment remained “unsatisfied.” The failure of the certification to reflect a "partial satisfaction” in the amount collected in West Virginia did not render the Pennsylvania judgment susceptible to a motion to strike. Cf. Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Super. 504, 442 A.2d 252 (1981).


text:
    487 A.2d 1379
    COMMONWEALTH of Pennsylvania, Appellee, v. Carlton CHEW, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1984.
    Filed Jan. 30, 1985.

      Joseph J. Yeager, Kingston, for appellant.

      Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   WIEAND, Judge:

Carlton Chew, a prisoner at the State Correctional Institution at Dallas in Luzerne County, was tried by jury and convicted of assault by prisoner in connection with an attack upon a guard at the prison facility. On direct appeal from the judgment of sentence, after post-verdict motions had been denied and sentence imposed, Chew challenges the sufficiency of the evidence to support his conviction and alleges that the court committed various trial errors which require a new trial. We find no merit in these contentions and, accordingly, affirm the judgment of sentence.

In reviewing the sufficiency of the evidence, we view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. See: Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984); Commonwealth v. Monaco, 327 Pa.Super. 369, 375, 475 A.2d 843, 846 (1984); Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984). The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact. Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983); Commonwealth v. Croll, 331 Pa.Super. 107, 116-117, 480 A.2d 266, 271 (1984).

The Commonwealth’s evidence discloses that on December 1, 1981, Andre Gay, an inmate at the State Correctional Institution at Dallas who was serving a life sentence, viciously attacked Stanley Baron, a prison guard, with a broken mop or broom handle. Carlton Chew and another inmate, Daniel Williams, joined the melee and punched, kicked and restrained Baron while Gay continued to strike him with the club. Another officer, Clement Koschinski, came to Baron’s aid and was punched and thrown to the ground by Williams. The scuffle was ended when Lieutenant Thomas Martin arrived and separated the combatants. Baron’s injuries included contusions of the head, a fractured nose, a fractured left elbow and bruises. He was semi-conscious, bleeding from head wounds, and in a state of shock when admitted to a local hospital for an overnight stay. Baron missed seventeen days of work as a result of his injuries and was still receiving treatment for the elbow injury at the time of trial.

The crime of assault by prisoner is defined at 18 Pa.C.S. § 2703 as follows:

A person who has been found guilty and is awaiting sentence to imprisonment, or a person who has been sentenced to imprisonment for a term of years in any local or county detention facility, jail or prison or any State penal or correctional institution or other State penal or correctional facility, located in this Commonwealth, is guilty of a felony of the second degree if he, while so confined or committed or while undergoing transportation to or from such an institution or facility in or to which he was confined or committed intentionally or knowingly commits an assault upon another with a deadly weapon or instrument, or by any means or force likely to produce serious bodily injury.

“Serious bodily injury” is defined at 18 Pa.C.S. § 2301 as: Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

“The legislative intent of § 2703 is to protect prison inmates and correctional officers from in-prison violence. This statute enhances the ability of law enforcement officers to control the Incidence of assaults which occur in prison.” Commonwealth v. Murphy, 310 Pa.Super. 373, 376, 456 A.2d 659, 660 (1983). A violation of § 2703 is classified as a felony of the second degree. A required element of the crime of assault by prisoner is an assault “upon another with a deadly weapon or instrument or by any means or force likely to produce serious bodily injury.” 18 Pa.C.S. § 2703.

Although the evidence is undisputed that Chew did not use the mop handle, there is evidence that he restrained Baron while Gay was striking Baron with the mop handle. There is also evidence that Chew punched and kicked Baron during the assault. Baron, who was attempting to defend himself, was unable to say with certainty that Chew had actually punched him, but he was certain that Chew had held him while Gay struck him with a mop or broom handle. Officer Koschinski testified, moreover, that he had observed Chew punching and kicking Baron during the assault. The jury could find from the evidence, therefore, that Chew had been a participant in a beating whereby three men, one armed with a mop or broom handle, had joined to pummel an unarmed correctional officer. Evidence of such facts was sufficient to sustain the conviction of Carlton Chew. See: 18 Pa.C.S. § 306. See also: Commonwealth v. Johnson, 458 Pa. 23, 326 A.2d 315 (1974) (two-by-four a deadly weapon when used to strike victim on and about head); Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d 532 (1947) (broom handle-like stick, although not ordinarily a “deadly” weapon, may become such if used as a club to inflict fatal head injuries); Commonwealth v. Glover, 303 Pa.Super. 229, 449 A.2d 662 (1982), aff'd, 500 Pa. 524, 458 A.2d 935 (1983) (where three men teamed up to repeatedly punch and kick victim about the head, evidence sufficient to permit inference that one of the actors, being tried alone, intended to inflict serious bodily injury under the aggravated assault statute); Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978) (en banc) (evidence sufficient where life prisoner inflicted five or six blows to the head of one victim from behind, rendering him unconscious and causing extensive injuries, and struck another victim in the face fracturing his cheekbone and necessitating hospitalization for several days); Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976) (evidence sufficient where prisoner struck victim on the back of the neck, pushed victim into brick wall and had to be subdued, causing injuries to victim’s face, shoulder and finger severe enough to cause victim to miss work three hours one day and the greater part of another).

Prior to trial, Chew became dissatisfied with his counsel, a public defender, because of a difference of opinion regarding strategy and because of what Chew perceived as inadequate preparation for trial. This dissatisfaction continued at the time of trial. Shortly before trial started, Chew spit in the face of his lawyer. Thereafter, he requested the court to appoint new counsel. The trial court inquired of counsel regarding his preparation and familiarity with the case and concluded that counsel was adequately prepared and both able and willing to defend the charges against Chew. The court, therefore, denied Chew’s request for the appointment of new counsel. This was not an abuse of discretion. An indigent defendant does not have a right to counsel of his own choosing, and mere differences of opinion concerning strategy or the brevity of pre-trial communications does not compel the appointment of new counsel. See, e.g. Commonwealth v. Smith, 480 Pa. 524, 531 n. 3, 391 A.2d 1009, 1012 n. 3 (1978); Commonwealth v. Bell, 328 Pa.Super. 35, 45-48, 476 A.2d 439, 445-446 (1984); Commonwealth v. Egan, 322 Pa.Super. 71, 76-78, 469 A.2d 186, 189-190 (1983) (en banc); Commonwealth v. Johnson, 309 Pa.Super. 117, 128-129, 454 A.2d 1111, 1116-1117 (1983); Commonwealth v. Weakland, 273 Pa.Super. 361, 366 n. 2, 417 A.2d 690, 692 n. 2 (1979); Pa.R.Crim.P. 316(c)(ii). Compare: Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976). Our review of the record reveals a spirited and conscientious effort by Chew’s counsel to defend a difficult case.

Appellant argues that the information contained “defective and inaccurate” information and should, therefore, have been quashed. There is no merit in this contention. The face of the information was not defective and to quash it would have been improper. See: Commonwealth v. Meoli, 307 Pa.Super. 50, 452 A.2d 1032 (1982); Commonwealth v. McKeirnan, 337 Pa.Super. 403, 487 A.2d 7 (1985).

Chew and his co-defendants were tried jointly. They requested the trial court to allow each defendant to exercise seven, separate peremptory challenges in selecting a jury. The trial court denied this request. Chew argues that this was an abuse of discretion. Pa.R.Crim.P. 1126(b) requires that in trials involving joint defendants the number of peremptory challenges allowed shall be divided equally among the defendants unless the trial court, in its discretion, shall increase the number so as to allow each defendant the maximum number of challenges he would have received alone. Appellant has failed to show any abuse of discretion in the denial of his request for seven peremptory challenges.

It is argued on appeal, however, that the trial court violated Pa.R.Crim.P. 1126(b)(1) when it directed that the allowable number of peremptory challenges be divided without also allowing each defendant an additional challenge because of the fractional interest of each defendant in the seventh allowable challenge. This issue was not raised at trial. No request was made for an additional challenge. Therefore, the issue has been waived. Commonwealth v. Isabell, 503 Pa. 2, 8-9, 467 A.2d 1287, 1290 (1983); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Bradshaw, 324 Pa.Super. 249, 253-255, 471 A.2d 558, 560-561 (1984).

Chew and his co-defendants were brought to court in leg restraints. When the trial judge inquired about the necessity for such restraints, the District Attorney said that the Sheriff routinely shackled prisoners brought to court from state correctional institutions. The defendants did not then object or request removal of the shackles. The court did not order removal of the shackles but did, sua sponte, caution the jury that the restraints were not evidence of guilt and did not relieve the Commonwealth from its burden of proving each and every element of the crimes charged beyond a reasonable doubt. On the second day of trial, counsel for the defendants moved for a mistrial because the defendants had been in leg restraints during the first day of trial and were again in leg restraints on the second day. The court denied the motion, and its ruling is now alleged to be error.

As a general rule, defendants “should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order____” A.B.A. Project on Minimum Standards For Criminal Justice, Standards Relating to Trial by Jury, Section 4.1(c) (Approved Draft, 1968). The courts in Pennsylvania have followed this rule. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Mayhugh, 233 Pa.Super. 24, 336 A.2d 379 (1975). A general policy which results in the shackling of prisoners brought to court from state correctional institutions, therefore, is to be condemned. See: State v. Hartzog, 96 Wash.2d 383, 635 P.2d 694 (1981) (shackling of prisoners from maximum security prisons disapproved).

In the instant case, however, there were circumstances which militated against the granting of appellant’s motion for mistrial. In the first place, the defendants had failed to make a timely objection and had not made a prompt request for removal of the restraints. The fact that the defendants had been observed in leg restraints without objection during the first day of trial, therefore, was an inadequate reason for declaring a mistrial on the second day. Chew also failed to show that he had been prejudiced by being observed in leg restraints. Unlike most cases, the Commonwealth was here required to prove as an element of its case that Chew was a prisoner at the time when the assault occurred. See: Young v. State, 416 So.2d 1109 (Ala.Crim.App.1982) (restraints not prejudicial because, inter alia, trial evidence showed that defendant was prisoner at time of trial). Contra: State v. Hartzog, supra. More importantly, in this case Chew had insisted on being attired in prison garb during the trial and had refused to wear civilian clothes which had been provided for him. Under these circumstances, and in view of the trial court’s cautionary instructions, it is difficult to find prejudice solely from the fact that appellant was observed in leg restraints by the jury.

Chew was believed to be a violent prisoner. He and his co-defendants had refused to rise and had insisted on remaining seated during openings and closings of court. He had spit in his attorney’s face prior to trial and had engaged in a verbal altercation with the trial judge at the beginning of the trial. Although the record does not disclose that the trial judge was then aware of it, Chew had written a letter to other inmates — the letter was intercepted by prison authorities — in which he had requested other inmates to give testimony and then create distractions during the trial. In view of all the circumstances, therefore, we are constrained to agree with the trial court that appellant is not entitled to a new trial merely because he and his co-defendants were brought to court in leg restraints.

Chew’s trial counsel filed a pre-trial request to discover all written confessions or inculpatory statements made by Chew. Pursuant thereto, the Commonwealth disclosed to defense counsel the information contained in its file. The file did not contain an inculpatory statement by Chew. During trial, the prosecuting attorney received from Lt. Martin, a security officer at the prison, a letter authored by Chew in which he had requested other inmates to give false testimony and create distractions during the trial. The prosecution thereafter gave a copy of the letter to Chew’s counsel and told counsel that it would be used on rebuttal to impeach Chew’s credibility if he testified. After the Commonwealth had rested its case in chief without introducing the letter, Chew’s counsel moved in the alternative to dismiss the charges, suppress the letter, or grant a continuance because of the Commonwealth’s failure to make an earlier disclosure of Chew’s letter. The court granted a recess, but denied other relief. Chew did not testify.

“ ‘[T]he prosecution does not violate discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pre-trial discovery, even if the evidence is in police custody.’ ” Commonwealth v. Gelormo, 327 Pa.Super. 219, 231, 475 A.2d 765, 771 (1984), quoting Commonwealth v. Bonacurso, 500 Pa. 247, 251 n. 3, 455 A.2d 1175, 1177 n. 3, cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983) (emphasis in original). See: Commonwealth v. Starks, 304 Pa.Super. 527, 450 A.2d 1363 (1982). The trial court in the instant case found that although a prison official had acquired the letter several weeks before trial, the prosecuting attorney did not become aware of the letter until late in the afternoon on the day prior to the date on which a copy was delivered to defense counsel. Pa.R.Crim.P. 305(D) requires “prompt” notification by the prosecution when additional evidence is obtained. The prosecuting attorney complied with this rule. The trial court granted the defense a recess in which to enable Chew and his counsel to consider the response to be made and any strategic changes deemed necessary. That Chew decided not to testify in light of the anticipated use of the letter by the Commonwealth, if such was the case, cannot be attributed to any misconduct on the part of the Commonwealth.

Finally, Chew contends that the trial court erred when it overruled a defense objection to an allegedly improper remark made by the prosecuting attorney during closing argument to the jury. The prosecuting attorney told the jurors that their “verdict should stand as a clear, unambiguous message to all three of [the defendants]. That the citizenry of this County will not tolerate the type of inmate ... misbehavior that has been demonstrated by the testimony of the Commonwealth’s witnesses.”

“It is well settled that comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Ta-bron, 502 Pa. 154, 160, 465 A.2d 637, 639-640 (1983). See also: Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982). In the instant case, the remarks of the prosecuting attorney suggested nothing more than what the prosecuting attorney deemed an appropriate response if the facts were as shown by the Commonwealth’s evidence. “The prosecutor’s statement merely reflected considerations that the jury would undoubtedly have considered even absent the articulation of them by the prosecutor____ [F]airness dictates that the prosecution must also have a degree of latitude in the exercise of advocacy in its position.” Commonwealth v. Tabron, supra, 502 Pa. at 161, 465 A.2d at 640. The trial court did not err in overruling an objection to the prosecuting attorney’s remarks.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 2703.

      . Gay and Williams were tried jointly with Chew. Gay was convicted of assault by life prisoner and recklessly endangering another person; Williams was convicted of simple assault with respect to his punching of Officer Koschinski. Direct appeals filed by Gay and Williams are decided of even date herewith.

      . Although appellant suggests in his statement of “questions involved” that he also wishes to argue that the verdict was against the weight of the evidence, in fact no such argument is made in his brief. Because a weight of the evidence argument presents a discrete inquiry, with a different standard of review, we do not consider it. By failing to argue this issue in his appellate brief, appellant has waived it. As our review of the evidence implies, moreover, it is difficult to find merit in such an argument.

      . The letter was not introduced into evidence, and a copy does not appear among the record papers. However, counsel and the court have agreed to the general content of the letter and have thereby provided this Court with an "equivalent picture” sufficient to permit appellate review of the trial court’s ruling. Cf. Smith v. Mason, 328 Pa.Super. 314, 476 A.2d 1347 (1984).

      . We do not now consider whether a defendant who does not testify can challenge a determination by the trial court regarding the allowable scope of cross-examination if he had testified.


author: POPOVICH, Judge:

text:
    487 A.2d 1386
    Susan L. Piczon LOHMANN, as Parent and Natural Guardian of Christopher PICZON and Alexander Piczon, Minors, and Individually In Her Own Right, Appellant, v. Severino PICZON.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed Jan. 30, 1985.

      William R. Lee, Scranton, for appellant.
    Paul A. Barrett, Scranton, for appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Lackawanna County which dismissed appellant’s exceptions and entered a final decree. We affirm in part, reverse in part, and remand.

The instant appeal arises from an action in equity wherein appellant, Susan L. Piczon Lohmann, as parent and natural guardian of Christopher Piczon and Alexander Pic-zon, minors, and individually in her own right, sought to enforce the terms of a support agreement between appellant, Susan L. Piczon Lohmann, and appellee, Severino Piczon, her former husband, which agreement was entered into on February 4, 1976. After a hearing before a chancellor, appellant filed timely exceptions. This appeal followed the entry of a final order.

Pursuant to the terms of the agreement, appellee was obliged to pay to appellant, for the benefit of the parties’ minor children, a sum equal to twenty-five percent of appel-lee’s “net income after taxes”. The action in equity centers upon the proper definition of this term. The alleged ambiguity of the phrase does not involve the term “income” but to what extent the modifier “net” reduces it. Appellant argues that the amount upon which the twenty-five percent is to be calculated (hereinafter referred to as “base amount”) is exclusive of taxes and those expenses incurred by appellee in realizing his income, i.e. business expenses. Such a definition will result in a substantial underpayment commencing in 1977. Appellee, on the other hand, maintains that the base amount is exclusive of all taxes and deductions statutorily allowable, both business and personal. His calculations admit of underpayments in 1979 and 1980, but overpayments for the years 1976, 1977 and 1978. Therefore, both parties agree that taxes are to be excluded; the conflict centers on which, if any, of appellee’s statutorily-allowed deductions will be excluded.

Appellant contends that the chancellor erred when he excluded parol evidence to explain the term “net income after taxes”. We agree and would remand the proceedings to the lower court so that parol evidence may be admitted to clarify the term “net income after taxes”.

We are mindful that where a term in a written contract is clear, “this court will not re-write it or give it a construction in conflict with the accepted and plain meaning of the language used.” Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). In the instant case, we must inquire as to whether the intention of the parties can be reasonably ascertained from the language of the writing alone. (See De Witt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121 (1984)).

In De Witt v. Kaiser, this court held that parol evidence should be permitted where there is an ambiguous term. There, the threshold inquiry was whether such evidence was admissible for the purpose of clarifying the term “income” which was defined in the agreement but remained ambiguous. The parties disagreed as to whether the base amount, upon which payments to the wife were calculated, was exclusive of income from trusts. Wife-appellant offered to prove that her understanding at the time of contract formation was that such term included income from trusts of which her former husband was beneficiary.

The court noted:
Where a term is defined in a contract and is, therefore, presumably unambiguous, no further interpretation is justified since if the meaning is clear from the express language of the agreement, judicial construction is unnecessary. Eannarino v. Eannarino, 294 Pa.Super. 81, 439 A.2d 760 (1982)....
We are convinced that in this case
“While [appellant] cannot use parol evidence to add terms to the original description, such evidence is admissible to clarify the terms of the description so that the Court can act upon it.”
Powell v. Powell, 244 Pa.Super. 264, 272, 367 A.2d 314, 318 (1976).
In Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350 (1976), the issue on appeal was whether the trial court erred in refusing to receive evidence that the parties used the term “alimony” to mean “child support”, or simply, what was the meaning that the parties intended when they used the word “alimony”.
“In general the court must adopt the construction which gives effect to the parties’ reasonable and probable intent, in view of the surrounding circumstances and the purposes of the contract, (cites omitted) And, although a word is generally used for its ordinary meaning, the context of the instrument may indicate it was used in a different sense, (cites omitted) If the meaning of a term is not clear, aprol (sic) evidence is admissible to resolve the ambiguity, but not to alter the terms of the contract____the Restatement of Contracts, Second, § 240 provides: “Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish ... the meaning of the writing, whether or not integrated____” Although there is Pennsylvania law stating that “parol evidence” may not be introduced unless the language of the written agreement is ambiguous on its face, this principle is substantially undercut by a competing proposition that extrinsic facts and circumstances may be proved to show that language apparently clear and unambiguous on its face is, in fact, latently ambiguous ...”

Kohn v. Kohn, 242 Pa.Superior Ct. at 442-443, 364 A.2d at 353-355. (Emphasis added) De Witt v. Kaiser, supra.

In the instant case, the chancellor below based his holding on Paragraph 2 of the support agreement which he found to define the term “net income after taxes” although no definition was specifically crafted as in De Witt v. Kaiser. He found it manifest that the base amount was to be keyed to appellee’s federal income tax return. This paragraph reads, in pertinent part, as follows:

The support payments called for herein shall be paid by Husband to Wife Monday of each week in equal weekly installments. Said weekly installments being in proportion to the amount reported on Husband’s declaration of estimated income filed in connection with his United States Income Tax report for that year. However, in no event shall said weekly installments be less than one fifty second of Husband’s net income as reported on his prior year’s United States Income Tax return. Further, in the event that upon filing of Husband’s United States Income Tax return for the year during which support payments have been made, it shall be determined that Husband’s net income exceeded the amount upon which said payments were made, the balance due shall be paid to Wife no later than ten (10) days after said return is required by law to be filed. In the event of over payment, Husband shall be entitled to deduct the amount of said over payment at the rate of one twenty-fifth of the amount of said over payment each week for twenty-five (25) weeks. Appellant’s counsel made an offer of proof at trial indicating that the parties’ intentions regarding the meaning of the phrase was to exclude taxes and only business-related expenses. The court stated midway through the proceedings:
On the basis of the parol evidence rule, we’ll sustain all objections concerning discussions of this term. (T-220)

This evidentiary ruling was made after appellee’s accountant testified:

It’s gross income less the statutorial deductions to arrive at adjusted gross income, and then deducting the itemized deductions, coming down to net income, the taxes that were paid on that income — on that taxable income on the tax returns that were taken directly from the returns, to come down to the net income after taxes. (T-74, 75)

but before appellant’s accountant testified:

Q What does (the term “net income”) mean to you?
A The income less the expenses of earning that income, I would think.
Q If you would consider itemized deductions that might be allowed by the Internal Revenue Service, would you, in your opinion, consider that to be encompassed in your definition of expenses incurred in realizing income.
A No. I would not. (T-292, 293)

Indeed, at the outset, in 1976, appellee paid appellant one-quarter of his paycheck.

We hold, therefore, that the court abused its discretion in disallowing parol evidence and would remand for proceedings consistent with this opinion.

Appellant further argues that the term “net income after taxes” should have been given its ordinary accounting meaning, i.e., total income less legitimate expenses of realizing such income, less taxes actually paid. We find it unnecessary to attempt to resolve the conflicting definitions provided by the parties’ accountants or to evaluate the case law provided by appellant. The decision as to whether to ascribe to the phrase its ordinary accounting meaning may only be made by the lower court after a hearing at which parol evidence is admitted.

Finally, appellant requests certain reasonable attorneys’ fees incurred because of appellee’s breach of the agreement. Paragraph 13 of the agreement reads as follows:

13. Husband shall reimburse Wife for all reasonable attorney’s fees incurred by Wife as a result of Husband’s failure to abide by this Agreement.

In particular, appellant requests three amounts:

(1) fees relating to the instant suit;

(2) fees relating to defense of a suit brought by appellee to annul a deed to the parties’ marital residence which had been executed in favor of appellant.

(3) a legal fee to ward off a sheriff’s sale of appellant’s personal property.

The record is sparse in describing the events which necessitated the legal services enumerated at (2) and (3). Apparently, appellee deeded the parties’ marital residence to appellant in her own right and then she, in turn, deeded it to herself as trustee for the children. Appellee then brought an action in equity to annul the deed. The lower court held:

Nowhere in the agreement is it stated that the wife shall receive a deed for the house.

With respect to the attorney’s fees to ward off the sheriff’s sale, the lower court held that it was not as a “result of husband’s failure to abide by this agreement.” We cannot say that the lower court abused its discretion in so finding. There is no evidence presented that these legal fees resulted from appellant’s failure to abide by the agreement.

We are, therefore, in agreement with the chancellor below that these fees are not recoverable; however, the fees attached to the instant suit are due from appellee. The court below found that appellee failed to maintain his life insurance policies pursuant to the agreement. Appellee effectively admitted this. Therefore, the court held that this suit is a direct effort to enforce said agreement and effect compliance with the terms thereof.

Accordingly, with respect to legal fees incurred with respect to the instant suit, we affirm that portion of the adjudication and the decree of the lower court which

(1) orders Severino Piczon to restore all insurance policies in effect on February 4, 1976, to status quo and remove all encumbrances thereon; and
(2) awards appellant attorney’s fees incurred to date in the instant suit.

Whether or not appellee will be liable for attorney’s fees henceforth will depend on whether they resulted from his failure to “abide by the agreement.”

Order affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Moreover, we question whether social security or workman’s compensation payments would be constituents of the base amount were appellee to retire or become disabled. The agreement refers to “net income after taxes from whatever source or sources that income may be derived", but if it is to be strictly keyed to appellee’s Federal Income Tax return, such amounts would be excluded as non-taxables. (but see Eannarino v. Eannarino, 294 Pa.Super. 81, 439 A.2d 760 (1982) where social security payments were held to be includable in the term “net earnings after taxes" for support payment purposes under an agreement which defined “net earnings” to include "all income”.)


author: PER CURIAM: CIRILLO, Judge,

text:
    487 A.2d 1390
    COMMONWEALTH of Pennsylvania, Appellant, v. Lynn Lionel CARSON, III, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1984.
    Filed Jan. 30, 1985.
    Petition for Allowance of Appeal Granted July 9, 1985.

      Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    John J. Kennedy, Jr., Pittsburgh, for appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   PER CURIAM:

The sole issue presented is whether the trial court abused its discretion by sua sponte dismissing all charges against appellee. The dismissal, resulting from the assistant district attorney’s nonappearance, occurred approximately thirty (30) minutes after the time for which trial was scheduled, 9:30 a.m. The reasons given by the trial court for the dismissal included the number of assistant district attorneys in Allegheny County and the court’s responsibility for disposing of its individual calendar in accordance with Pa.R. Crim.P. 1100.

In its motion for reconsideration, the Commonwealth averred that the assistant district attorney appeared in the trial court’s courtroom at 8:55 a.m. and informed the staff present that she was scheduled for a plea proceeding before another judge at 9:00 a.m. and would return for the instant matter after completing the plea proceeding. At 9:30 a.m. the trial court’s law clerk appeared in the other judge’s courtroom to ascertain when the assistant district attorney would be free and was told by that judge’s law clerk that the case would be completed in approximately fifteen (15) minutes. At 9:57 a.m., a staff member of the trial court herein telephoned the district attorney’s office to secure the presence of a substitute by 10:00 a.m. to handle the instant matter. The assigned attorney’s supervisor appeared at 10:02 a.m. but the charges had already been dismissed. The attorney assigned to the case then appeared at 10:15 a.m.

In light of the above circumstances and the fact that we find no indication of a potential Rule 1100 violation or prejudice to appellee, we find that the trial court did abuse its discretion in sua sponte dismissing the charges. Cf., Commonwealth v. Daniels, 321 Pa.Super. 486, 468 A.2d 814 (1983). Our Supreme Court has cautioned our trial courts that

speedy disposition is not the sole element to be considered in dispensing justice, and that where special circumstances exist, special consideration must be given lest we allow statistical considerations and analyses to become the be-all and end-all of our system of justice.

Budget Laundry Company v. Munter, 450 Pa. 13, 23-24, 298 A.2d 55, 59 (1972). Furthermore, the trial court erred in not considering the reasons for the assistant district attorney’s tardiness before dismissing the charges. Murin v. Nadick, 287 Pa.Super. 37, 429 A.2d 707 (1981).

Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion. Jurisdiction relinquished.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I dissent and would affirm the order of the trial court.


author: CIRILLO, Judge:

text:
    488 A.2d 1
    COMMONWEALTH of Pennsylvania v. John MERRICK, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed Jan. 23, 1985.

      Richard B. Henry, Honesdale, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal by appellant John Merrick from the judgment of sentence entered by the Court of Common Pleas of Luzerne County. Following a trial by jury, appellant was convicted of murder in the first degree. Post-trial motions were denied by the trial court en banc, and appellant was sentenced to life imprisonment. We affirm.

On September 15, 1981, appellant was arrested for the stabbing death of his father. Prior to his preliminary hearing, a mental health evaluation revealed that appellant was incompetent to stand trial. Approximately six months later, appellant was found competent. He waived his preliminary hearing and formal arraignment. Pursuant to Pa.R.Crim.P. 1101, appellant requested a waiver of a jury trial. The motion was denied by the trial court. Notice of an insanity or mental infirmity defense was filed as required by Pa.R.Crim.P. 305(C)(1)(b). A jury convicted appellant of first-degree murder.

Five issues are raised by appellant in the instant appeal. The first question presented for our review is whether the trial court erred in denying appellant’s request to waive his right to a jury trial. Pa.R.Crim.P. 1101 provides in part:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record____

“It is well established that there is no constitutional prohibition to a court’s denial in appropriate circumstances, of a defendant’s request to be tried by a judge sitting without a jury.” Commonwealth v. Garrison, 242 Pa.Super. 509, 514-15, 364 A.2d 388, 390 (1976) (allocatur denied). See also Commonwealth v. Hailey, 332 Pa.Super. 167, 480 A.2d 1240 (1984) (no absolute right to a bench trial); Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983) (same); Commonwealth v. Maxwell, 312 Pa.Super. 557, 459 A.2d 362 (1983) (court not constitutionally prohibited from denying request to waive jury trial); Commonwealth v. Giaccio, 311 Pa.Super. 259, 457 A.2d 875 (1983) (no absolute right to non-jury trial); Commonwealth v. Forrest, 305 Pa.Super. 297, 451 A.2d 540 (1982) (no constitutional reason why a court cannot refuse waiver). Rather, the decision to grant a waiver of a jury trial is one committed to the sound discretion of the trial court. Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Maxwell, supra; Commonwealth v. Giaccio, supra; Commonwealth v. Forrest, supra; Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978). The fact that a waiver is “knowing and intelligent” does not mandate approval of a defense request to be tried without a jury; “[ijnstead, ... even if satisfied that the defendant’s waiver is ‘knowing and intelligent,’ ... the judge has discretion to decide whether to approve the waiver.” Commonwealth v. Giac-cio, supra 311 Pa.Super. at 262, 457 A.2d at 876.

After carefully reviewing the trial court’s reasons for denying appellant’s request, we are satisfied that there was no abuse of discretion. Moreover, appellant’s suggestion that the court’s refusal to grant the waiver was an attempt to avoid the responsibility of passing on the facts of a disagreeable case not only insults the dignity of the learned trial judge, but also insults the dignity of the bench as a whole.

Appellant’s next contention concerns the trial court’s denial of his request to ask prospective jurors certain questions on voir dire. The questions involved the jurors’ views on the insanity defense, the John Hinckley case, their ability to follow the court’s instructions concerning the legal definition of insanity, and the Commonwealth’s burden of proof once a defendant files notice of an insanity defense.

We start our analysis with the general principle that the purpose of the voir dire system is to ensure the empaneling of a fair, competent, impartial, and unprejudiced jury. Commonwealth v. Werts, 483 Pa. 222, 395 A.2d 1316 (1978); Commonwealth v. Richmond, 316 Pa.Super. 304, 462 A.2d 1362 (1983); Commonwealth v. Hayes, 314 Pa.Super. 112, 460 A.2d 791 (1983). To this end, the scope of a voir dire examination is within the sound discretion of the trial court; absent a palpable error, we will not disturb a court’s decision. Commonwealth v. Richardson, 315 Pa.Super. 349, 461 A.2d 1315 (1983); Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982).

Questions on voir dire should be tailored so as to “disclose lack of qualification and whether the juror has formed a fixed opinion as to the accused’s guilt or innocence.” Commonwealth v. Clark, 280 Pa.Super. 1, 13, 421 A.2d 374, 380 (1980). However, questions which are “designed to disclose what a juror’s present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case” should not be permitted. Commonwealth v. Werts, supra, 483 Pa. at 224, 395 A.2d at 1317, quoting Commonwealth v. Johnson, 452 Pa. 130, 134, 305 A.2d 5, 7 (1973).

The case at bar is very similar to Commonwealth v. Werts, supra and Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977), wherein defense counsel proposed questions which were “designed to advise counsel in advance what a venireperson’s personal reaction might be when” faced with evidence that would be offered at trial. Commonwealth v. England, supra, 474 Pa. at 8, 375 A.2d at 1296. In each instance, the Supreme Court found no error by the trial court in refusing to ask such questions. In the present case, the trial court found “[the questions proposed by appellant] effectively examine prospective jurors not only on their understanding and acceptance of certain principles of law but also on their potential reaction to the evidence of insanity to be developed in the trial of the case.” Consequently, we find no abuse of discretion or palpable error warranting a reversal of the court’s ruling.

The next assignment of error urged upon us by appellant concerns the exclusion of certain testimony. Specifically, the court limited the testimony of a priest who spoke to appellant approximately one week after the murder. The offer of proof made by appellant’s counsel indicated that the priest would testify that appellant “recounted a little bit” about the killing, and that “in the interim period he had been visited by apparitions of the Almighty and he was told by the Almighty that he had done right.” This testimony was excluded. The priest was allowed to testify to matters concerning appellant’s actions prior to and immediately after the killing.

“It is clear that the admission or exclusion of evidence is a matter committed to the sound discretion of the trial court---- On appeal, we will not disturb a court’s ruling unless it amounts to an abuse of discretion.” Commonwealth v. Jackson, 336 Pa.Super. 609, 622, 486 A.2d 431, 437 (1984).

“[A]n accused’s statements to third persons may be offered to indicate the mental state of the accused where his sanity is in issue.” Commonwealth v. England, supra, 474 Pa. at 13, 375 A.2d at 1298. Here, however, while the statements made to the priest concerned appellant’s mental state, only “a little bit” of it dealt with his mental state at the time of the murder. The rest of the priest’s testimony dealt with matters prior to or after the murder. The offered testimony did not relate to appellant’s state of mind at the time of the killing. Therefore, under these circumstances, it was not an abuse of discretion by the trial court to exclude this testimony.

Appellant also contends that the court erred in its charge to the jury. The trial court en banc found no merit to this contention. After carefully reviewing Judge Olszewski’s thorough and well-reasoned opinion, we conclude that the en banc court adequately addressed this issue.

The final question appellant presents for our review is: “Did the trial court err in its denial of Appellant’s Motion in Arrest of Judgment in that the conviction of murder in the first degree is against the weight of the evidence?” From this statement of the issue it is apparent that appellant has “[qjuite obviously ... missed th.e ‘crucial’ distinction between evidentiary weight and sufficiency.” Commonwealth v. Whiteman, 336 Pa.Super. 120, 125, 485 A.2d 459, 462 (1984). If the verdict was against the weight of the evidence the only relief we may grant appellant is a new trial. Id. If, however, the evidence were insufficient to sustain the verdict, we are required to discharge the appellant. Id. While the issues are confused, the record makes clear that appellant is not entitled to any relief.

The standards by which we review insufficiency and weight of the evidence issues were aptly summarized in Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). Weight of the evidence and sufficiency of the evidence

are discrete inquiries____ In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt----
A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Id., 324 Pa.Superior Ct. at 424-25, 471 A.2d at 1229-30 (citations omitted).

The only contested issue at trial was appellant’s sanity. The record reveals that appellant's expert’s testimony was inconsistent with regard to appellant’s alleged insanity at the time of the murder. The jury was afforded the opportunity to view a videotape of appellant that was made shortly after the stabbing; this enabled the jury to observe appellant’s manner and behavior during the time of his alleged insanity, and to compare his demeanor to the elements of the test prescribed for a finding of not guilty by reason of insanity. Detective Curley, the arresting officer, also testified about appellant’s conduct and awareness shortly after the murder. This testimony was corroborative of the videotape. Taken together, the evidence was sufficient to permit the jury to conclude that appellant was sane at the time of the murder. Commonwealth v. Roberts, 496 Pa. 428, 437 A.2d 948 (1981).

We conclude that: (1) there was sufficient evidence to find appellant guilty of first degree murder beyond a reasonable doubt, and (2) the verdict was not so contrary to the weight of the evidence so as to make the award of a new trial imperative.

Judgment of sentence affirmed.

      . We note that appellant erroneously states that he is appealing from the order denying his motions for a new trial and in arrest of judgment. However, we will treat this case as if it were an appeal from the judgment of sentence entered against the appellant. See Pa.R.A.P. 105(a). Cf. Commonwealth v. Martin, 316 Pa.Super. 190, 462 A.2d 859 (1983).