author: McEWEN, Judge: JOHNSON, Judge,

text:
    534 A.2d 1090
    Karen LAUB, Appellant, v. Stanley ZASLAVSKY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 21, 1987.
    Filed Dec. 16, 1987.

      Norman A. Oshtry, Philadelphia, for appellant.
    Dennis P. Talty, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   McEWEN, Judge:

We are here called upon to determine whether arrearages, which had been created solely as a result of the retroactive application of a support order, constitute “past-due support” as that term is used in Section 464 of the Social Security Act, subjecting the obligor to the provisions of the federal income tax refund intercept statutes. The distinguished Judge Jerome A. Zaleski concluded that such arrearages do not constitute “past-due support” and cannot form the basis upon which to intercept a federal income tax refund owed to the obligor. We agree.

This appeal has been taken from an order which granted the petition of appellee to delete an Internal Revenue Service intercept which had been placed upon his federal income tax refund check as a result of alleged arrearages in child support payments owed to appellant.

Appellee originally became subject to a court order for support when the court, on September 15, 1978, directed that he pay the sum of $85.00 per week for support of two children. The order was subsequently modified by agreement to $125.00 per week, effective February 27, 1980. When, four years later, appellant sought a further increase, the court, on December 28, 1984, entered an order increasing the support obligation to $400.00 per week. Since the increased order was, pursuant to Pa.R.C.P. 1910.17, deemed effective as of the date of the filing of the petition to modify, specifically, March 2, 1984, arrearages in the amount of $11,825.00 were immediately created. As a result, the court ordered appellee to pay, in addition to the sum of $400.00 per week for support, the sum of $10.00 per week toward the arrearages which had been created by the modification order.

Ten months later, in October 1985, appellee was notified by the IRS Intercept Unit of the Domestic Relations Branch of the Court of Common Pleas of Philadelphia County that his federal income tax refund check would be intercepted and that any refund money seized would be used to offset the $14,255.00 arrearages for support. Appellee filed a petition in the Court of Common Pleas requesting the court to delete the intercept, asserting that the intercept was improper because the arrearages were not a result of appellee’s failure to make any of his child support payments. Rather, he asserted, the arrearages existed solely because the December 28, 1984, support order had been given retroactive effect. The court, after argument, granted appellee’s petition to delete the intercept.

Appellant contends that it was error for the hearing court to delete the IRS intercept, asserting that the intercept was proper because the statute applies, without exception, to all arrearages, whether created as a result of the retroactive application of a support order or from a failure to timely remit amounts due under the order.

Section 464(a)(2)(A) of the Social Security Act directs the Secretary of the Treasury to “intercept” federal income tax refund checks payable to persons whose child support payments are “past due”:

§ 664. Collection of past-due support from Federal Tax refunds
(a)(2)(A) Upon receiving notice from a State agency administering a plan approved under this part that a named individual owes past-due support____the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual____ If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to such past-due support and shall concurrently send notice to such individual that the withholding has been made____ The Secretary of the Treasury shall pay the amount withheld to the State agency____ The State agency shall, subject to paragraph (e)(B), distribute such amount to or on behalf of the child to whom the support was owed.

42 U.S.C. § 664(a)(2)(A) (emphasis supplied). The term “past due support” is defined by the statute as: “the amount of a delinquency determined under court order ... for support and maintenance of a child____” 42 U.S.C. § 664(c)(1). Thus, the issue for our determination is whether arrearages which result solely from the retroactive application of a support order can be properly characterized as a “delinquency” under the statute, subjecting the obligor to the provisions of the intercept statute.

The word “delinquency” is defined by Black’s Law Dictionary as “[fjailure, omission, violation of law or duty. State or condition of one who has failed to perform his duty or obligation.” Black’s Law Dictionary 385 (5th ed. 1979). Similarly, Webster’s New Collegiate Dictionary defines the word “delinquency” as “a debt on which payment is overdue.” Application of these definitions to Section 464 of the Social Security Act suggests that the federal intercept program is intended to encompass those situations where a parent has failed to comply with his obligation to timely remit court ordered child support payments.

Though the issue be narrow and the dictionary valuable, when faced with the task of interpretation of a federal statute, we look to that ever and most profound authority— the federal courts. One such court has stated that the federal intercept program was to provide reimbursement to “state welfare agencies for monies spent to aid families who have not received support payments from a parent obligated to make such payments”, Presley v. Regan, 604 F.Supp. 609, 611 (N.D.N.Y.1985) (emphasis supplied), and that the intercept was designed for use when a “non-custodial parent falls behind in child support payments.” Smith v. Onondaga County Support Collection Unit, 619 F.Supp. 825, 827 (N.D.N.Y.1985) (emphasis supplied). Another federal court described the intercept program as an effort by which a state can recoup assistance payments which it has been compelled to advance “because [an obligor] has defaulted.” Rucker v. Secretary of the United States, 634 F.Supp. 598, 602 (D.C.Colo.1986) (emphasis supplied). We share the view reflected by these federal tribunals and conclude that the federal intercept program does not encompass situations where a parent has continually complied with his child support obligation, but where, nonetheless, arrearages are created as a result of the retroactive effect of an order of support.

While the issue of general interest and application is thus concluded, a bookkeeping question of specific application to this case remains. The record indicates that approximately $11,825.00 of appellee’s accumulated arrearages resulted solely from the retroactive effect of the December 28, 1984 modification order. These arrearages cannot, as we have found, be considered to be “past-due support” under the intercept statutes.

Appellant, however, argues further that even if the arrearages created solely as a result of the retroactive effect of the support order of December 28, 1984, are not subject to the intercept statute, appellee’s federal tax refund was properly intercepted because arrearages of more than $500.00 had accumulated as a direct result of the failure of appellee to timely remit his support payments.

Section 464(b)(2)(A) of the Social Security Act provides that the federal intercept program applies “where the state determines that the amount of the past-due support which will be owed at the time the withholding is to be made ... is equal to or greater than $500.00.” 42 U.S.C. § 664(b)(2)(A). Appellant contends that appellee’s child support account statement, which had been prepared by the IRS Intercept Unit of the Domestic Relations Branch of the Philadelphia County Court of Common Pleas, indicates that, as of the date of the hearing on appellee’s petition to delete the intercept, arrearages of more than $500.00 had accumulated which were separate from and in addition to the $11,-825.00 in arrearages which had been created as a result of the December 28, 1984 modification order. While the record before this Court suggests that there is merit to appellant’s contention, we are unable to conclusively determine, from the child support account statement, whether arrearages equal to or in excess of $500.00 had accumulated as a result of appellee’s failure to timely remit his child support payments. As the hearing court made no finding as to the exact amount of the arrearages, the case must be remanded for a determination of whether, as of the date of the hearing on appellee’s petition to delete the IRS intercept, the amount of his arrearages, excluding the arrearages created as a result of the retroactive application of the December 28, 1984 order, was equal to or greater than $500.00. It is to be noted that if, on remand, the court determines that the amount of such arrearages are equal to or greater than $500.00, then, of course, the federal income tax refund due appellee, which was intercepted as a result of the October 24, 1985, IRS intercept and which is presently being held on deposit by order of the hearing court, must be used to offset such arrearages in the manner provided for by the intercept statutes.

Order affirmed in part and reversed in part. Case remanded. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I believe that the arrearages present in this case constitute past due support and are thus subject to the provisions of the federal income tax refund intercept program as set forth in 42 U.S.C. § 664. Accordingly, I dissent.

On March 2, 1984, Appellant filed a petition for a modification of a support decree seeking an increase in the amount of support payments. On December 28, 1984, a court order was issued increasing the amount of weekly support from $125 to $400. Pursuant to Pa.R.C.P. 1910.17, the order was made retroactive to March 2, 1984, the date of filing, and was thus effective as of that date. Arrearages resulted from the ordered increase and Appellee was ordered to pay $10 per week toward the arrearages. In October 1985 Appellee was notified that any federal income tax refund to which he might be entitled might be intercepted and used to offset the arrearages. Thereafter Appellee filed a petition requesting that the intercept be deleted on grounds that the arrearages did not result from his failure to make child support payments. The petition was granted.

This case turns on the interpretation of the phrase “past due support” as used in 42 U.S.C. § 664(a)(2)(A). In my view, it is not necessary to glean the dictionary to obtain a definition for “past due”. The term is clearly defined by statute and a thorough and accurate reading of the statute reveals that the arrearages involved in the instant controversy are past due within the meaning of the statute.

The definition of past due support is set forth in 42 U.S.C. § 664(c)(1) as follows:

(1) Except as provided in paragraph (2), as used in this part ... the term ‘past-due support’ means the amount of a delinquency, determined under a court order, or an order of an administrative process established under State law, for support and maintenance of a child, or of a child and the parent with whom the child is living.
(2) For purposes of subsection (a)(2), the term ‘past-due support’ means only past-due support owed to or on behalf of a minor child.

42 U.S.C. § 664(c)(1). In spite of this clear language, the majority concludes that “the federal intercept program does not encompass situations where a parent has continually complied with his child support obligation, but where, nonetheless, arrearages are created as a result of the retroactive effect of an order of support.” The majority reaches this conclusion by interpreting the statute to mean that “the federal intercept program is intended to encompass those situations where a parent has failed to comply with his obligation to timely remit court ordered child support payments.” I view such a narrow interpretation of the statute as unsound.

In my opinion the majority’s interpretation of the statute places undue emphasis on the obligor parent’s conduct as opposed to the recipient’s right to receive support payments. The primary purpose of the federal income tax refund intercept program is not to regulate or punish the parent’s conduct. Rather the objective of the program is to ensure that a child who is entitled to financial support from his parent in fact receives that support.

Moreover, the source of the delinquency or the reason for the past due status of the support payments is of no import. The statute in no way limits or excludes any source of delinquency. Neither does the statute state that the delinquency must result from any particular source or that it must be caused by an individual’s failure to pay. In fact the statute merely requires that the support be past due. Clearly then the intercept program is meant to encompass any arrearages regardless of their origin.

It is not relevant that the obligated parent has been ordered to make payments on past due amounts and has adhered to the mandated payment schedule. By statute amounts that are past due are subject to the provisions of the intercept program. See 42 U.S.C. § 664(a)(2)(A). The statute does not provide an exception for an individual who makes payments which decrease but do not discharge the delinquency. Such an individual nevertheless remains subject to the intercept program. To conclude otherwise would allow any individual owing past due support but complying with a payment plan to escape the effects of the intercept program. I see no support in the statute for such a conclusion and therefore dissent. I do not agree that Appellee’s payment of an additional $10 per week toward the delinquent amount entitles him to an exemption from the intercept program.

Assuming arguendo that the majority’s interpretation of the statute is sound, proper application of that interpretation to the circumstances of the instant case would nevertheless result in the interception of Appellee’s federal income tax refund check.

Contrary to the majority’s conclusion, the arrearages in the instant case did not result solely from the retroactive application of the support order. More accurately the arrearages arose from the court’s determination that, as of March 2, 1984, Appellee’s children were entitled to receive, and Appellee was obligated to pay, an additional $275 weekly. Thus any portion of the increased amount which was not paid each week when due became past due. As of October 1985, when Appellee was informed of the intercept, the arrearages still remained unpaid, well over a year after the effective date of the support order and several months after the order was entered.

Moreover, contrary to the majority’s position, the case at bar does not involve a parent who has “continually complied with his child support obligation.” As noted above, Appellee’s obligation was to pay $400 weekly child support effective March 2, 1984. Appellee has yet to pay amounts equal to the debt imposed upon him by the support order. Consequently, I fail to see how he has “continually complied with his child support obligation.”

It is my view that the majority’s refusal to apply the intercept provisions in the instant case dilutes the retroactive effect of the support order. While the order by virtue of its effective date clearly indicates that Appellee’s children were entitled to receive increased support as of March 2, 1984, the majority has decided to deny Appellee’s children access to the financial support to which they are entitled. With this I cannot agree.

      . Rule 1910.17(a) of the Pennsylvania Rules of Civil Procedure provides, in pertinent part:
      (a) An order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise____

      . It has been said that the hand of the tax collector cannot be stayed, nor his grasp and grip matched. The tax collector in this instance, however, is not the clenching agent of excise, since the refund has been forwarded to the domestic relations agency and the hearing court has directed that the intercepted funds be retained there pending the conclusion of appeal proceedings. The supplemental record suggests that the IRS refund totaled $4,429.67.

      . The Internal Revenue Code also authorizes the Secretary of the Treasury to intercept a delinquent parent's federal income tax refund check:
      § 6402. Authority to make credits or refunds
      (c) Offset of past-due support against overpayments.
      The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 464(c) of the Social Security Act) owed by that person---- The Secretary shall remit the amount by which the overpayment is so reduced to the State collecting such support and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State—
      26 U.S.C. § 6402(c). (emphasis supplied)

        Note: Section 464 of the Social Security Act, cited in this section of the Internal Revenue Code, has been amended and is presently codified at 42 U.S.C. § 664.

      . The federal intercept program was originally applicable only to parents of children receiving Aid to Families with Dependent Children (AFDC) benefits, with the intercepted monies being paid to the state. However, Section 664 was amended in 1984 to include children ineligible to receive AFDC benefits and providing for the intercepted monies to be paid to the custodial parent. See: Sorenson v. Secretary of Treasury, 475 U.S. 851, 857 n. 5, 106 S.Ct. 1600, 1605 n. 5, 89 L.Ed.2d 855, 863 n. 5 (1986).

      . We note that the notice directed to appellee by the IRS intercept unit indicated that appellee had accumulated arrearages of $14,255.00 at that time while the arrearages created by the retroactive application of the support order were $11,825.00.


source: Caselaw Access Project

author: WATKINS, Judge. KELLY, Judge,

license: Public Domain

text:
    534 A.2d 1095
    COMMONWEALTH of Pennsylvania v. Joseph WARD, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 6, 1987.
    Filed Dec. 11, 1987.
    Petition for Allowance of Appeal Granted June 1,1988.

      Robert G. Teeter, Gettysburg, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before KELLY, POPOVICH and WATKINS, JJ.
   WATKINS, Judge.

This case comes to us on appeal from the Court of Common Pleas of Adams County and involves defendant-appellant’s appeal from the sentences imposed upon him as the result of convictions for robbery and burglary.

The incident from which the conviction arose occurred on December 21, 1983 when the victim returned to her home and discovered that it had been ransacked. Upon entry to the premises, she was pulled aside by the appellant’s accomplice and directed to the dining room where she was asked for money. The accomplice then pulled her purse from her shoulder and directed her to the second floor where she observed the appellant. The accomplice then pulled the telephone receptacle from the wall and ordered the victim under her bed.

Sometime later, the victim, believing the intruders had departed, exited the bedroom where she confronted the accomplice who pointed a gun at her, ordered her back to the bedroom where she was instructed to remove her clothing and to get back under the bed. The intruders left shortly thereafter.

The defendant was convicted by a jury of various counts of burglary and robbery, theft by unlawful taking and criminal conspiracy. On November 9, 1984, the appellant was sentenced to two and one-half to twelve and one-half (2 & V2 to 12 & V2) years on the burglary conviction and two and one-half to fifteen (2 & V2 to 15) years on the robbery conviction. The sentencing court provided that the robbery sentence should commence at the expiration of the minimum sentence imposed for the burglary conviction which rendered the sentence partially consecutive and partially concurrent.

Appellant appealed the robbery sentence to the Superior Court. This Court found that the robbery sentence exceeded the statutory maximum sentence and remanded the case to the sentencing court for a correction of the sentence and for a statement of rationale for the sentence. See Commonwealth v. Ward, 352 Pa.Superior Ct. 620, 505 A.2d 1037 (1985). On December 13, 1985, the sentencing court resentenced the appellant on the robbery conviction imposing a sentence of two and one-half to ten (2 & V2 to 10) years. The order provided that the effective date of the robbery sentence would be the expiration of the minimum sentence imposed on the burglary conviction that is at the end of two and one-half years. The court further ordered that the effect of the sentence for both offenses was to impose an imprisonment term of not less than five (5) years nor more than twelve and one-half (12 & V2) years. Thus, the sentence was made partially consecutive and partially concurrent.

Shortly before the Superior Court remanded the robbery sentence, appellant filed a P.C.H.A. petition in which he alleged, inter alia, that the sentence was illegal. After the re-sentencing on the robbery conviction, the appellant filed a Motion to Modify Sentence alleging that the sentencing court abused its discretion by imposing a sentence in excess of sentencing guidelines for the robbery and by imposing consecutive minimum terms for the burglary and robbery.

The proceedings on the P.C.H.A. Petition and Motion to Modify Sentence were consolidated for hearing.

Appellant raises three issues in this appeal:

1. Did the Sentencing Court abuse its discretion by imposing a sentence in excess of the Sentencing Guidelines?
2. Did the Sentencing Court abuse its discretion by imposing consecutive minimum sentences for burglary and robbery?
3. Can the Sentencing Court impose a partially concurrent and partially consecutive sentence under Section 9757 of the Sentencing Code (42 Pa.C.S.A. 9757)?

Appellant’s first and second arguments are without merit. The sentence of two and one-half to ten years for the robbery conviction to be served consecutively with the sentence on the burglary conviction is proper under the circumstances of this case. Where no statutorily mandated sentence is implicated, trial judges in the Commonwealth are vested with broad discretion in sentencing and will not be reversed on appeal unless there is a clear abuse of discretion. Commonwealth v. Rooney, 296 Pa.Superior Ct. 288, 292, 442 A.2d 773, 774 (1982); Commonwealth v. Hollerbush, 298 Pa.Superior Ct. 397, 444 A.2d 1235 (1982). The facts in the instant case reveal that the victim’s home was completely ransacked, that she was directed to lay underneath the bed while the assailants continued to rummage through her home and that she was again confronted by the assailants and threatened with a rifle. She was then told to undress and instructed to remain in the bedroom, under the bed, until they departed. At sentencing, it was also revealed that the appellant was on probation at the time he committed the instant crimes. During the sentencing colloquy, the sentencing court stated that he considered the indignities perpetrated upon this female victim by the culprits as an aggravating circumstance which justified a sentence in excess of the sentencing guidelines. He also considered the fact that the appellant was on probation at the time of the offenses when he imposed sentence. Appellant attempts to argue that the court should have considered the fact that the perpetrators did not molest the female victim. Of course, this is reflected by the fact that they were not charged or convicted with any such offenses. The fact that the appellant did not participate in other crimes does not mitigate the above facts. Under these circumstances, we cannot find that the sentencing court abused its discretion in imposing the sentence that it did.

Appellant’s third contention has merit. We agree with appellant’s contention that a sentence which is partially consecutive and partially concurrent is not a valid sentence. While at first glance it might appear that a consecutive minimum sentence and a concurrent maximum sentence has no practical effect, we must point out that the minimum and maximum sentences may determine a convict’s place of incarceration, his parole eligibility and the jurisdiction to grant parole. Further, Pa.R.Crim.Pro. 1406(b) adopted July 23, 1973, and effective ninety (90) days thereafter, provided as follows:

(b) Whenever two or more sentences are imposed on a defendant to run consecutively, there shall be deemed to be imposed on such defendant, unless otherwise stated by the judge, a sentence the minimum of which shall be the total of the minimum limits of the several sentences so imposed, and the maximum of which shall be the total of the maximum limits of such sentence.

This provisions would appear to grant the sentencing court the discretion to impose partially concurrent-partially consecutive sentences. Simultaneous to the adoption of this rule came the enactment of R.Crim.Proc. 1415(c), which suspended the Act of 1937, 19 Pa.C.S.A. 897, as inconsistent with Pa.R.Crim.Pro. 1406(b). However, 18 Pa.C.S.A. 1357, now found at 42 Pa.C.S.A. 9757, was enacted on December 30, 1974, and became effective on March 31, 1975. Said statute provided that:

§ 1357. Consecutive sentence of total confinement for multiple offenses.
Whenever the court determines that a sentence should be served consecutively to one being then imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not excess one-half of the maximum sentence imposed.

Pa.R.Crim.Pro. 1406(b), which provided for discretion in the aggregation of consecutive sentences, was repealed on March 21, 1975, effective with the enactment of 18 Pa.C. S.A. § 1357 on March 31, 1975.

The current Comment to Pa.R.Crim.Pro. 1406 states: The 1974 (sic) amendment deleted the original second paragraph of this Rule, dealing with the simultaneous imposition of two or more sentences. This matter is now the subject of § 1357 of the Act of Dec. 30, 1974, P.L. 1052, 18 Pa.C.S. § 1357.

The Commonwealth Court of Pennsylvania has reached the following conclusion from its examination of this history of enactments and repeals:

The Act of 1937 (providing for automatic aggregation of consecutive sentences) was merely suspended by Pa.R. Crim.P. 1415(c). When Pa.R.Crim.P. 1406(b), as originally promulgated, was deleted in 1974 (sic) and 18 Pa.C.S. § 1356 was enacted, there resulted a gap with regard to maximum sentences as no mention thereof is made in 18 Pa.C.S. § 1357. We conclude, therefore, that in 1974, the Act of 1937, insofar as it results in an aggregation of maximum sentences was revived.

Blackwell v. Commonwealth of Pennsylvania, 36 Pa. Comwlth. 31, 38, 387 A.2d 506, 509 (1978).

Blackwell remains the law as it is understood by Commonwealth Court. Hamlin v. Commonwealth of Pennsyl vania Board of Probation and Parole, 92 Pa.Cmwlth. 349, 500 A.2d 499 (1985); Wilson v. Commonwealth of Pennsylvania Bureau of Corrections, 89 Pa.Cmwlth. 222, 492 A.2d 70 (1985). Additionally, this court has cited Blackwell with approval in concluding that consecutive sentences are aggregated as a matter of law, even if the sentencing judge does not explicitly state such to be his intent. Commonwealth v. Bell, 328 Pa.Superior Ct. 35, 476 A.2d 439 (1984). (Petition for Allowance of Appeal denied August 6, 1984).

The sentencing judge in the instant case imposed a sentence of two and one-half to twelve and one-half years for burglary. The robbery sentence was for two and one-half to ten years to commence at the expiration of the minimum sentence imposed for burglary. By that sentence, the trial judge was attempting to impose non-aggregating consecutive sentences. Had this sentence been imposed between July 23, 1973 and March 31, 1975 when the Act of 1937 was suspended and when Pa.R.Crim.Pro. 1406(b) gave the judge discretion whether or not to aggregate consecutive sentences, this would have been a lawful sentence. However, for the reasons previously stated, after March 31, 1975, all consecutive sentences are aggregated as a matter of law. The sentence imposed by the trial judge in the instant case is not a legal sentence, it being neither a consecutive sentence nor a concurrent sentence.

Order affirmed in part, reversed in part; sentence vacated; case remanded to the sentencing court for the imposition of consecutive maximum sentences in accordance with this opinion.

KELLY, J. files a concurring and dissenting statement.

POPOVICH, J. concurs in the result.

KELLY, Judge,

concurring and dissenting:

I concur in the determination that the partially concurrent and partially consecutive sentences were improper. I do not believe, however, that we have the authority to direct that consecutive maximum sentences be imposed upon remand. Rather, the sentencing court should be free to impose wholly concurrent or wholly consecutive sentences at its discretion. I would find that appellant’s other challenges to the discretionary aspects of sentence have been rendered moot by our decision to vacate sentence and remand for re-sentencing.

      . Because this case arose prior to the decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), we have chosen to discuss the issues raised in appellant’s brief regarding the discretionary aspect of the sentence despite the absence in appellant’s brief of any mention of a “substantial question” that the sentence was not appropriate under the Sentencing Code.


author: HOFFMAN, Judge:

text:
    534 A.2d 1099
    Linda J. BEMIS, Administratrix of the Estate of Paul J. Bemis, Deceased, Appellant, v. Alex W. GUMBESKI, Jr., Administrator of the Estate of Michael A. Gumbeski, Deceased and Kim Lang.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1987.
    Filed Dec. 7, 1987.

      Richard L. Rosenzweig, Pittsburgh, for appellant.
    Frank M. Gianola, Pittsburgh, for Gumbeski, appellee.
    Mark G. Wade, Pittsburgh, for Lang, appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order sustaining defendant-appellee’s preliminary objection in the nature of a demurrer and dismissing the first count of appellant’s complaint. Appellant contends that the lower court erred in sustaining the preliminary objection and urges us to extend social host liability to social hosts who serve alcohol to intoxicated adults. For the reasons that follow, we affirm the order of the lower court.

On April 16, 1987, appellant, administratrix of the estate of Paul J. Bemis, deceased, filed a complaint against defendant-appellee Kim Lang and defendant Alex W. Gumbeski, Jr., administrator of the estate of Michael A. Gumbeski, a deceased adult. Appellant alleged that Michael A. Gumbeski had caused a traffic accident between himself and Paul J. Bemis, which resulted in the deaths of both individuals. Appellant further alleged that Michael A. Gumbeski had been intoxicated at the time of the accident. In addition, in Count I of the Complaint, appellant alleged that appellee Lang at whose home Gumbeski had been prior to the accident, should have known that Gumbeski had become intoxicated during his visit and she should not have permitted him to leave her house. Appellee Lang then filed a preliminary objection in the nature of a demurrer on the ground that “Pennsylvania Law does not recognize a cause of action against a social host who provides alcoholic beverages to an adult.” The lower court sustained appellee’s preliminary objection and dismissed Count I of appellant’s complaint. This appeal followed.

Appellant contends that the lower court erred in sustaining appellee’s preliminary objection and dismissing Count I of the complaint. An order dismissing a complaint as to one defendant is a final and appealable order. See Dash v. Wilap, 343 Pa.Superior Ct. 584, 495 A.2d 950 (1985). An appellate court’s scope of review, however, is limited in cases in which there is a challenge to the sustaining of a preliminary objection in the nature of a demurrer. See Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461 (1983). The standard of review is as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether, on the facts averred, the law says with a certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Id., 503 Pa. at 66, 468 A.2d at 461-62 (quoting Vattimo v. Lower Bucks Hosp. Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-33 (1983)).

Although Pennsylvania courts have imposed social host liability on a host who served alcohol to a minor, we consistently have declined to similarly impose liability on a host who served alcohol to an adult. See Klein v. Raysinger, 504 Pa. 141, 145-48, 470 A.2d 507, 509-11 (1983); Burk-hart v. Brockway Glass Co., 352 Pa.Superior Ct. 204, 211, 507 A.2d 844, 847 (1986); Sites v. Cloonan, 328 Pa.Superior Ct. 481, 483, 477 A.2d 547, 548 (1984). In Klein v. Raysinger, our Supreme Court explicitly refused to recognize a cause of action against a social host who served alcohol to a visibly intoxicated adult, “whom the host knows, or should know, intends to drive a motor vehicle”:

the great weight of authority supports the view that in the case of an ordinary able-bodied man, it is the consumption of the alcohol, rather than the furnishing of the alcohol which is the proximate cause of any subsequent occurrence. This is in accord with the recognized rule at common law. ... We agree with this common law view, and consequently hold that there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.

Klein v. Raysinger, supra, 504 Pa. at 148, 470 A.2d at 511 (emphasis added).

In light of the facts set forth in the first count of appellant’s complaint, the single issue for our consideration is whether a social host who has served alcohol to an intoxicated adult guest can beheld liable for a fatal traffic accident later caused by that guest. The law in Pennsylvania is well-settled on this issue: no cause of action will lie against a social host who serves alcohol to an adult guest. See Klein v. Raysinger, supra. The lower court, therefore, correctly concluded that appellant failed to state a cause of action against appellee and properly sustained appellee’s demurrer. Accordingly, we affirm the order of the lower court dismissing Count I of appellant’s complaint.

Order affirmed.

      . The parties have stipulated that "Michael A. Gumbeski was sui juris, not a minor, at the time of the incident complained of.” Order of Court, May 20, 1987.


author: PER CURIAM:

text:
    534 A.2d 1101
    Albert E. LEESE, Appellee, v. Betty E. LEESE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1986.
    Filed Dec. 7, 1987.

      Allen H. Smith, Wrightsville, for appellant.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   PER CURIAM:

In this appeal from the entry of a bifurcated decree in divorce, the only issue raised by the wife-appellant is whether the trial court erred by refusing to set aside a divorce decree based on violations of the mandate of Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983). Our review of the record discloses no violation; and, therefore, we affirm.

An action in divorce was filed by Albert E. Leese against Betty E. Leese on June 21, 1985. The alternative grounds cited for divorce in the complaint were that (1) the marriage was irretrievably broken under Section 201(d) of the Divorce Code of April 2, 1980, P.L. 63, 23 P.S. § 201(d) and (2) the wife-defendant had been guilty of indignities under Section 201(a)(6) of the Code, 23 P.S. § 201(a)(6). An affidavit was simultaneously filed which stated that the parties had been living separate and apart for more than three (3) years. The affidavit was not opposed on substantive grounds by wife-defendant, but she did file a petition for equitable distribution of marital property and for alimony, counsel fees, and costs. On April 14, 1986, upon motion of husband-plaintiff, the court entered a bifurcated decree in divorce which preserved wife-defendant’s economic claims for fúrther consideration. Betty Leese thereafter filed a timely petition to set aside or open the divorce decree, in which she alleged that she was 56 years of age, that her husband was 84 years of age, that the parties owned real estate jointly as tenants by the entireties, and that the court had erroneously granted a bifurcated divorce without a hearing. The trial court granted reconsideration, held an evidentiary hearing, concluded that a bifurcated divorce would not harm the wife or prejudice her economic claims, and reaffirmed the decree in divorce. Wife-defendant appealed.

A trial court has discretion to sever economic claims from divorce claims. Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 249, 502 A.2d 185, 191 (1985). See: 23 P.S. § 401(b); Pa.R.C.P. 1920.52(c). “Bifurcation separates the termination of the marriage from the distribution of property so that the marriage and each party’s personal life are not held hostage to economic demands.” Wolk v. Wolk, supra, 318 Pa.Superior Ct. at 315, 364 A.2d at 1361. A decision to bifurcate “should be made only after the disadvantages and advantages have been carefully explored and analyzed.” Id., 318 Pa.Superior Ct. at 317, 464 A.2d at 1362. Bifurcation, therefore, should not be granted pro forma. In the case sub judice, as the trial court recognized, the initial decree had been entered pro forma. When this irregularity was called to the court’s attention via petition to open or vacate the decree, the court allowed reconsideration of its prior action and scheduled an evidentiary hearing. At that hearing, wife-defendant was present and stated her reasons for opposing a bifurcated decree. However, the trial court concluded that there were no disadvantages to bifurcation and reaffirmed its decree divorcing the parties.

Because a decision to bifurcate is discretionary with the trial court, a reviewing court will reverse only if there has been an abuse of discretion. Mosier v. Mosier, 359 Pa.Super. 187, 192, 518 A.2d 843, 845-846 (1986). See: Katz v. Katz, 356 Pa.Super. 461, 475, 514 A.2d 1374, 1381 (1986). An appellate court will defer to the discretion of the trial judge so long as he “assembles adequate information, thoughtfully studies this information, and then explains his decision____ In other words, this determination should be the result of a reflective examination of the individual facts of each case.” Wolk v. Wolk, supra. The record in the instant case demonstrates that the trial judge made such a reflective examination. A hearing was held during which wife-defendant was permitted to identify any disadvantages which she perceived as a result of bifurcation. At that hearing, wife testified to the respective ages of the parties and to the extent of the marital property, which was limited to the jointly owned marital residence. The trial court stated:

Specifically, the Court has heard testimony that the parties have been separated since 1963. Further, the only property the parties own is a residence located on East King Street, York, York County, Pennsylvania, which is titled in joint names. The plaintiff, Albert E. Leese, is presently age 84, having been born March 29, 1902. The defendant, Betty E. Leese, is age 56. The sole source of income for Albert E. Leese, the plaintiff, is Social Security benefits. The parties have one child, who is presently age 35.
Based on Wolk v. Wolk, [318 Pa.Super. 311], 464 A.2d 1359 (1983), the Court has considered the various factors and concludes that there is no harm done by the entry of the divorce decree.

Trial Court Opinion at pp. 2-3.

In Taylor v. Taylor, 349 Pa.Super. 423, 503 A.2d 439 (1986), this Court said:

[A]ppellant’s interest in the marital property would not be altered by appellee’s untimely death. In Pastuszek, [346 Pa.Super. 416, 499 A.2d 1069 (1985) ], this court specifically held that pending ancillary matters, following a divorce decree, survive the death of one of the parties. Therein we stated:
Once the [divorce] decree has been entered, the right of the spouse to the distribution of marital property and other economic claims where these matters have been properly put in issue before the death of the spouse, is vested. We do not perceive any conflict between this rule and the provisions of any statute dealing with the estates of decedents. By virtue of equitable distribution of marital property and the disposition of other economic claims, some property may become an asset of the decedent’s estate and shall be treated by the personal representative as any other estate asset.

Id., 349 Pa.Superior Ct. at 429, 503 A.2d at 442 (footnote omitted). See also: Katz v. Katz, supra, 356 Pa.Superior Ct. at 476, 514 A.2d at 1382.

Wife-defendant’s belief that she will benefit financially by delaying a decree in divorce, i.e., that she will acquire a greater interest in the entireties real estate if her husband dies before a divorce decree is entered, is an inadequate reason for refusing to enter a bifurcated decree. A more equitable result will be achieved if a bifurcated decree is entered which vests the rights of the parties to a distributive share of the marital property. Bifurcation will permit the parties to get on with their lives without holding the personal life of an 84 year old husband hostage to the economic claims of a younger, undivorced wife. The trial court took these factors into consideration and by so doing complied with the mandate of Wolk v. Wolk, supra. The bifurcated decree in divorce, therefore, will be affirmed.

Decree affirmed.

JOHNSON, J., concurs in the result.

      . Act of April 2, 1980, P.L. 63, No. 26, § 401, 23 P.S. § 401(b), effective July 1, 1980.


author: KELLY, Judge:

text:
    534 A.2d 1103
    COMMONWEALTH of Pennsylvania v. Gary MORAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 8, 1987.
    Filed Dec. 21, 1987.

      Douglas M. Johnson, Assistant Public Defender, College-ville, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Com., appellee.
    Before OLSZEWSKI, KELLY and MONTGOMERY, JJ.
   KELLY, Judge:

Appellant, Gary Moran, petitions for allowance of appeal from the discretionary aspects of sentence. We deny allowance of appeal.

On October 7, 1982, the appellant pled guilty to a violation of the Controlled Substance, Drug, Device and Cosmetic Act. He was sentenced to five (5) years probation, conditioned upon his entrance into and completion of an in-patient drug and alcohol program.

On October 3, 1983, the appellant pled guilty to retail theft (third and subsequent offense), a felony of the third degree, and retail theft (second offense). Appellant was sentenced to two (2) years probation with respect to the charge of retail theft (second offense) and five (5) years probation with respect to the charge of retail theft (third and subsequent). Each of these sentences was conditioned upon appellant’s entrance into and completion of an in-patient drug and alcohol program. In addition, appellant stipulated to violating the October 7, 1982 probationary sentence. On October 3, 1983, this sentence was revoked and a sentence of five (5) years probation was reimposed upon the appellant with the aforementioned drug and alcohol program contingency.

On April 3,1985, appellant appeared before the trial court as the result of a violation of the probationary sentences imposed on October 3, 1983. The court found appellant in violation of the October 1983 sentence of probation, and on May 3, 1985, sentenced appellant to a new five (5) year probation sentence on the retail theft (third and subsequent) conviction, a concurrent five (5) year probation sentence on the Controlled Substance, Drug, Device and Cosmetic Act conviction, and a new two (2) year probation on the retail theft (second offense) conviction.

On October 6, 1986, the appellant again appeared for new probation violations. The court determined that the violations in question did not warrant a revocation of his existing probation sentences.

On February 26, 1987, the appellant appeared yet again and stipulated to having violated his probation. He was remanded to the Montgomery County Prison without bail. On May 6, 1987, subsequent to a review of appellant’s Pre-Sentencing Investigation Report, the court sentenced appellant to serve not less than three and one-half (S^) nor more than seven (7) years in total confinement with respect to the retail theft (third and subsequent) conviction. Appellant received a concurrent one (1) to two (2) year sentence on the retail theft (second offense) conviction, and a five (5) year probationary sentence commencing upon discharge from prison with respect to the drug conviction.

We note that appellant has satisfied the initial procedural prerequisites for properly raising a challenge to the discretionary aspects of his sentence as set forth by our Supreme Court in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); nonetheless, appellant has failed to raise the appearance of a substantial question for our review. See 42 Pa.C.S.A. § 9781(b). Appellant contends that his sentence of three and one-half (3V2) to seven (7) years relating to his retail theft (third and subsequent) conviction is manifestly excessive due to the alleged failure of the trial court to adequately consider his history of alcohol and drug abuse as a mitigating factor. The appellant concedes that these factors were considered (see N.T. 5/6/87 at 17-23); appellant argues essentially that the trial court failed to give them adequate weight. The consideration of the weight to be given these factors is a matter consigned to the discretion of the trial court; absent extraordinary circumstances not present here, we will decline to grant allowance of appeal upon such grounds.

Allowance of appeal denied.

MONTGOMERY, J., concurs in the result.


author: WATKINS, Judge:

text:
    534 A.2d 1104
    COMMONWEALTH of Pennsylvania v. Charles HEMINGWAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1987.
    Filed Dec. 14, 1987.
    Reargument Denied Feb. 2, 1988.

      Robert A. Crisanti, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before: McEWEN, JOHNSON and WATKINS, JJ.
   WATKINS, Judge:

This submitted case comes to us on appeal from the Judgment of Sentence imposed February 14, 1986, in the Court of Common Pleas of Allegheny County sentencing the appellant, Charles Hemingway, to a term of imprisonment of three and one-half to seven years.

The history of this case as set forth in the trial court opinion is as follows:

The defendant, Charles Hemingway, was arrested on December 6, 1984, on charges of rape and burglary. On December 23, 1985, the defendant was found guilty by a jury as charged. The Honorable Judge John Feeney was the trial judge at the time and left the bench on December 31, 1985, with the instant case still pending.
The Defendant, through his attorney, filed post-trial motions in the nature of Motion for a New Trial and/or Arrest of Judgment, and a Petition for Reconsideration of Sentence both of which were denied.
The defendant was sentenced by the Honorable Walter R. Little, on February 14, 1986, to a term of incarceration of three and one-half (3V2) years to seven (7) years on the count of rape. As to the second count of burglary there was a determination of guilt without further penalty ordered.
The defendant appealed his judgment of sentence which is now before the Court ...

Appellant presents the following questions for our consideration:

1. Was appellant denied effective assistance of counsel when trial counsel failed to obtain testimony from known witnesses concerning the prior relationship between the appellant and (the victim)?
2. Was appellant denied effective assistance of counsel when trial counsel failed to admit the first photo array into evidence?
3. Did (the) trial court err in allowing testimony on the results of the rape kit under the Uniform Business Records As Evidence Act?
4. Was appellant denied his constitutional right to confront and cross-examine the criminalist who prepared the rape kit on (the victim)?

In his first issue appellant asserts that he was denied his constitutional right to effective assistance of counsel when trial counsel failed to obtain testimony concerning the prior relationship between appellant and the victim from known witnesses, including Mattie Hemingway.

When asserting ineffective assistance of counsel in this context, appellant is required to show that counsel was made aware of the existence of the witnesses, what material testimony the witnesses would have provided, and how that testimony would have been more likely to have provided a different outcome at trial. Commonwealth v. Polk, 347 Pa.Superior Ct. 265, 500 A.2d 825 (1985).

An affidavit signed by Mattie Hemingway recited that she would have been able to testify that the victim came to her (Mattie Hemingway’s) house prior to July, 1984, looking for the appellant. The affidavit further represented that Barbara Wilson would have testified, if called, that the victim and appellant had a prior relationship.

Appellant’s defense at trial was that he was not the man who raped the victim. Whether or not appellant had a prior relationship with the victim was immaterial to appellant’s asserted defense. There was no offer in the affidavit that Mattie Hemingway or Barbara Wilson were eye witness to the crime, or that they could testify concerning the appellant’s whereabouts on the morning when the rape took place.

In light of the specific defense asserted by appellant at trial, counsel was under no obligation to present this fundamentally irrelevant and immaterial evidence to the jury. Accordingly we find appellant’s claim to be without merit.

In his second issue appellant contends that he was denied effective assistance of counsel when trial counsel failed to admit the first photo array into evidence. In addressing this issue the trial court stated:

The case law on the admission of a photograph as evidence at trial is clear. The admission of photographs is largely within the discretion of the trial judge, (see Piso v. Weirton Steele [Steel] Co., Division of Nat. Steel Corp., 235 Pa.Superior Ct. 517, 345 A.2d 728 (1975), Semet v. Andorra Nurseries, Inc., 421 Pa. 484, 219 A.2d 357 (1966)). A photograph to be admitted into evidence must first be relevant and the trial judge has the discretion to reject a photograph on the grounds that the photograph is unnecessary, (see Adamczuk v. Holloway, 338 Pa. 363, 13 A.2d 2 (1940)).
(Trial court opinion, p. 7)

With these considerations in mind the trial court concluded:

... The relevancy of the photo sought to be introduced by defense counsel is unclear. A review of the records shows that the defense counsel also failed to move the photo into evidence; thus any rights for it’s (sic) admission were waived ...
(Trial court opinion, p. 8)

Appellant concedes that it cannot be known what effect a comparison of the first and second arrays could have had on the jury because the first array is not part of the record. Appellant only speculates that the effect might “have impeached the testimony of (the victim) concerning her subsequent identification of appellant as the assailant.” (Appellant’s brief at 12). Presented with nothing more than speculation, we cannot conclude that trial counsel was ineffective. Accordingly, we find this claim to be without merit.

In his third issue appellant contends that the trial court erred by allowing testimony on the result of the “rape kit” under the Uniform Business Records as Evidence Act.

Appellant asserts that testimony by Jean Austin, a criminalist at the Allegheny County Crime Laboratory, regarding records of various tests conducted by another criminalist who performed the “rape kit” on the victim, should not have been found admissible by the court.

Whether a document should be admitted under the “business records” exception to the hearsay rule is within the discretion of the trial court, provided that authority is exercised within the bounds of the Uniform Business Records as Evidence Act. See Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Superior Ct. 333, 455 A.2d 637 (1982).

In Isaacson v. Mobil Propane Corporation, 315 Pa.Superior Ct. 42, 461 A.2d 625 (1983), this Court summarized a three part test to determine if a medical report was admissible under the business records exception to the hearsay rule:

A medical report is admissible under the business records exception to the hearsay rule if the report: (1) was made contemporaneously with the events it purports to relate, (2) at the time the report was prepared, it was impossible to anticipate reasons which might arise in the future for making a false entry in the original and (3) the person responsible for the statements contained in the report is known. Isaacson, supra, 315 Pa.Superior Ct. at 49, 461 A.2d at 629.

In addressing this issue in the case sub judice the trial court concluded:

There was a full hearing on the admission of the medical evidence of the crime lab which indicates that the requirements of the business records exception of the hearsay rule (see T.T. pg. 143-145) standards were met and the record admitted. The crime laboratory report was performed in the normal course of business by an Allegheny County Crime Laboratory employee. There was no known reason to believe that Dirk Jamses, the criminologist who performed the test would want to falsify the report. Finally, Dirk Jamses was a criminalist employed by Allegheny County Crime Laboratory in the section of microscopy, where rape tests are performed. Therefore, as previously stated (the) test for business records exception was met.
(Trial court opinion, pp. 6-7)

In Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987), however, the Supreme Court of Pennsylvania, after considering the three part test in Isaacson, supra, concluded:

... These three factors are helpful in determining whether a business record is admissible. A report that contains nothing but facts, and meets this three part test may be admissible under the Business Records Act. Simply meeting these three factors, however, does not guarantee the admissibility of a record under the Business Records Act ...
... Under this exception, hospital records have been admitted to show the fact of hospitalization, treatment prescribed and symptoms found. Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975); Platt v. John Hancock Mutual Life Insurance Company, 361 Pa. 652, 66 A.2d 266 (1949). As Superior Court noted in Commonwealth v. Seville, 266 Pa.Superior Ct. 587, 405 A.2d 1262 (1979):
No such doubt as to reliability and accuracy are entertained when a record is offered merely to prove facts, such as the event of hospitalization, treatment prescribed, symptoms given, or the existence of some readility ascertained substance or chemical within the body. Id., 266 Pa.Superior Ct. at 592, 405 A.2d at 1264.
This Court, however, has consistently held that opinion evidence contained in hospital records is inadmissible. Commonwealth v. DiGiacomo, supra; Jones Appeal, 419 Pa. 543, 297 A.2d 117 (1972); see also Morris v. Moss, 290 Pa.Superior Ct. 587, 593, 435 A.2d 184, 187 (1981). (opinion that person is conscious is not fact free from doubt)
(Williams, supra, at pp. 305-306)

In the case sub judice Ms. Austin testified on the results of various tests conducted by the criminalist who performed the “rape kit” on the victim. The results included the finding of spermatozoa on the vaginal smear and swabbing, the non-secretor status of the victim, the secretor status of appellant, the determination that the victim has type A blood, the determination that appellant had type 0 blood and the findings in the pubic and head hair samples of the victim as well as the results of tests done on the night clothing of the victim.

Although this court has found on occasion that hospital records are admissible to show hospitalization, treatment and symptoms, Commonwealth v. Seville, 266 Pa.Superior Ct. 587, 405 A.2d 1262 (1979); Commonwealth v. Campbell, 244 Pa.Superior Ct. 505, 368 A.2d 1299 (1976) (finding of spermatozoa in prosecutrix vagina must be treated as fact and not as medical conclusion), it has more consistently held that opinions, diagnoses and conclusions are not admissible under the Act. Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975); Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974). This evidence is excluded because it is expert testimony and is not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability and veracity of his opinion. Commonwealth v. McNaughton, 252 Pa.Superior Ct. 302, 381 A.2d 929 (1977). Cross-examination makes possible the exposure of errors and omissions in the preparation of the report and the accuracy of the opinions based thereon. The only possible means of assuring this is to permit in-court cross-examination of the party who prepared the report. Commonwealth v. Seville, supra.

The criminalist who prepared the rape kit was not present at appellant’s trial consequently there was no opportunity to cross-examine him.

Because the medical report was offered to prove more than the event of hospitalization, treatment prescribed, symptoms given, or the existence of some readily ascertainable substance of chemical within the body (with the exception of the finding concerning the presence of spermatozoa, Commonwealth v. Campbell, supra) and because appellant was deprived of the opportunity to cross-examine the criminalist who prepared the report, we will reverse appellant’s Judgment of Sentence and remand for a new trial.

Judgment of sentence reversed; case remanded for new trial.

      . Commonwealth v. Campbell, 244 Pa.Superior Ct. 505, 368 A.2d 1299 (1976), addressed a considerably narrower factual situation than the instant case. In Campbell the hearsay testimony was limited to the fact of the existence of sperm in the vagina, while, the testimony in the instant case concerns not only the existence of sperm, but the non-secretor status of the victim, the secretor status of the appellant, the pubic hair test, the head hair test and the test upon the night clothes of the victim.


author: CAVANAUGH, Judge:

text:
    534 A.2d 1108
    DANKO DEVELOPMENT CORPORATION Successor to A. Nobile Enterprises Inc. A Corporation, Appellee, v. ECONOCAST CORPORATION A Corporation, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 13, 1987.
    Filed Nov. 27, 1987.

      John M. O’Connell, Jr., Greensburg, for appellant.
    George A. Conti, Jr., Greensburg, for appellee.
    Before CAVANAUGH, BECK and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

A civil action was commenced by Danko Development Corporation, the appellee herein, against the appellant, Econocast Corporation, for breach of a written lease agreement. The landlord, the plaintiff below, sought possession of the demised premises, unpaid rent and other relief. The appellant filed New Matter and Counterclaim. The appellee filed preliminary objections to the New Matter and Counterclaim and the appellant filed an Amended New Matter and Counterclaim. Preliminary objections were filed to the Amended New Matter and Counterclaim and on February 7, 1987, the court below entered the following order from which an appeal has been taken to this court.

AND NOW, this 9th day of February, 1987, the-Preliminary Objection of the Plaintiff in the nature of a demurrer to the counterclaim of Defendant is granted, and the counterclaim insofar as it asserts a cause of action for breach of an implied warranty of habitability is dismissed; Defendant may, if it so desires, file an amended counterclaim asserting causes of action grounded upon negligence. Any amended counterclaim must be filed within twenty (20) [sic] of this date.

The appellant filed a Second Amended New Matter and Counterclaim and added Counts IV and V alleging negligence.

In order to put our appellate review in focus, it is necessary to consider the three counts in detail. The three counts in the amended counterclaim are not precisely drawn, but basically the defendant’s counterclaim is based on a commercial lease between the landlord (appellee) and the tenant (appellant) entered into on April 27, 1981. The landlord, according to the counterclaim, was to provide heating and air conditioning, but the tenant experienced serious heating and air conditioning problems. The tenant alleged that it entered into an addendum to the lease and the landlord assured and guaranteed to the tenant that the problems with the heating and air conditioning would be corrected and that a separate heating and air conditioning system would be provided for the tenant with a separate thermostatic control to be used only by the tenant. The tenant also contended that it was fraudulently induced to enter the addendum to the lease and that the landlord breached the lease by failing to supply proper heat and air conditioning and that the premises were therefore uninhabitable by the tenant. It also alleged that repetitive work was required by the tenant because of excessive heat, humidity and temperature variations on the premises. Count I also alleged that the premises were uninhabitable because the landlord failed to provide proper and adequate heating, air conditioning and security and failed to keep the premises clean. Count II alleged that the tenant expended large sums of money for improvements and furnishings on the demised premises. It further alleged that “Due to the actions of the Plaintiff, the Defendant may be required to find safe and adequate premises to which to remove its office and may, therefore, suffer the loss of the useful life of the above mentioned improvements and furnishings, and claim, therefore, for the remaining useful life of the same is made herein.” Count III alleged, as it was alleged in Count I, that the employees had to do repetitive work because of equipment failure due to excessive heat, humidity and temperature variations. It further alleged that the landlord did not provide adequate security and failed to keep the demised premises clean. Count III stated with respect to these allegations that “all are breaches of the lease by.the Plaintiff and are actions which make the premises leased to the Defendant uninhabitable and untenantable.” Count III also alleges that “the above mentioned breaches of contract by the defendant have made the premises unsafe and uninhabitable for the defendant.”

We must initially determine whether the order of February 9, 1987 is appealable, considering the nature of the multi-count complaint before us. It is incumbent upon this court to consider the propriety of each appeal and the appealability of an order may be raised sua sponte. Caparina v. Travelers Insurance Company, 355 Pa.Super. 219, 513 A.2d 397 (1986). An appeal to this court must be quashed if it is from an interlocutory order unless a right to appeal is expressly granted by statute or rule of court. See Pa.R.A.P. 311, 1311; T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

Generally, an order is not final unless it puts the litigant out of court. We have variously defined a final order as one which ends the litigation or alternatively disposes of the entire case. Piltzer v. Independence Federal Savings & Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981); Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1986). The salutary reason for this is to preclude piecemeal appeals to this court and the consequent protraction of litigation. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987); Beers v. Raub, 363 Pa.Super. 521, 526 A.2d 801 (1987). Where there are multicount complaints and the court dismisses some of of the counts, but not all, an appeal from the dismissal of some of the counts is interlocutory as the plaintiff is not out of court and the suit continues. Esh v. Awglis, 291 Pa.Super. 528, 436 A.2d 242 (1981). See also Stengena v. Madden, 291 Pa.Super. 364, 435 A.2d 1269 (1981) where preliminary objections as to second and fourth counts of a complaint were sustained, but the action continued as to counts one and three. We held the order was interlocutory and not appealable relying on Bagshaw v. Vickers, supra. Counts one and three were based on negligence and counts two and four sought punitive damages. The general rule is that “an order dismissing less than all counts of a multi-count complaint is interlocutory ...” Gasper v. Gasper, 288 Pa.Super. 478, 483, 432 A.2d 613, 615 (1981). To the same effect see Bracken v. Bracken, 294 Pa.Super. 371, 439 A.2d 1247 (1982) .

An example of our unwillingness to accept piecemeal appeals is found in Evans v. Government Employees Insurance Company, 291 Pa.Super. 342, 435 A.2d 1258 (1981). In that case we quashed an appeal from an order sustaining preliminary objections and dismissing the second and third counts of a three count complaint. The first count was in assumpsit and sought payments allegedly due under a no-fault motor vehicle insurance policy. The second and third counts were in trespass and alleged that appellee’s failure to pay was a wilful, wanton and malicious breach of contract done with the intent to harass and frustrate the appellant. The complaint set forth separate causes of action, but we determined the appeal was clearly interlocutory.

It has long been recognized that in ascertaining whether an order is final we must look beyond the technical effect of the adjudication to its practical ramifications. Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). While we must review the record to determine the practical effect of an order, prior to this court’s decision in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) which we will discuss hereafter, we were disposed to find any order which dismissed some counts of a complaint, but allowed the action to continue, to be interlocutory. This served very well to carry out the policy against piecemeal appeals to this court. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). The case of Kaiser v. Meinzer, 272 Pa.Super. 207, 414 A.2d 1080 (1979) involved a complicated action dealing with various defendants. The complaint contained three counts. The first count alleged a conspiracy between a company and a bank. The second count was against a bank and a title company seeking payment of an escrow fund. The third count alleged default on a promissory note. The court below in effect terminated the plaintiffs claim as to count three and the plaintiff appealed. We quashed the appeal on the basis that the order appealed from was interlocutory stating at 272 Pa.Super. 218, 414 A.2d 1086:

If [plaintiffs] action on the promissory note was the only claim for recovery that had been pleaded, we would have no problem in concluding that Judge Green-berg’s decision on that claim was final as it put Kaiser out of court and precluded its recovery on the note. However, Kaiser’s action on the promissory note was only one phase of the entire proceedings against the defendants. Moreover, to characterize the May 15 order as “final” and permit an immediate appeal would permit the type of severance and piecemeal resolution of issues that has heretofore been condemned. (Emphasis added.) In Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255

(1983) (Cavanaugh, J. concurring), we again recognized the general rule that an order dismissing some, but not all counts, of a multi-count complaint is interlocutory and not appealable. We added at 313 Pa.Super. 338, 459 A.2d 1258-59:

However, the general rule is not without exceptions. Certain orders which have not put a litigant literally “out of court” or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from asserting the cause of action alleged.

This court concluded that where separate causes of action have been joined, the entry of a summary judgment as to one cause of action is appealable. In Praisner, supra, a trespass action was brought alleging in three counts causes of action for false arrest, malicious abuse of process and assault and battery. Summary judgment was entered in favor of the defendant on the counts alleging false arrest and malicious abuse of process. The plaintiff appealed and we determined that the judgment was final and held “that where, as here, a formal judgment has been entered in a separate cause of action, that judgment is appealable. Decisions of this court which have reached a contrary result are overruled.” 313 Pa.Super. 343, 459 A.2d 1261.

We have difficulty in reconciling Praisner v. Stocker, supra, and Waddell v. Trostel, 336 Pa.Super. 527, 485 A.2d 1208 (1984). Waddell involved a complaint containing three counts: (1) a complaint for specific performance (2) a petition for involuntary dissolution of a corporation and (3) an action in assumpsit. The court sustained defendant’s demurrers to all three counts, and allowed the plaintiff to amend her count in assumpsit. Although appellant was out of court as to the complaint for specific performance and petition for involuntary dissolution of a corporation, she was allowed to amend her complaint in assumpsit. We held the order appealed from to be interlocutory and quashed the appeal. It seems clear that appellant was out of court on the two separate causes of action dealing with specific performance and petition for involuntary dissolution of a corporation, but we quashed the appeal, stating at 336 Pa.Super. 529, 485 A.2d 1209: “It is settled law that an appeal will lie only from a final order unless otherwise permitted by statute; a final order is one which ends the litigation or disposes of the entire case. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).”

The decision in Praisner, supra, formed a basis for this court’s decision in Cloverleaf Development v. Horizon Financial F.A. 347 Pa.Super. 75, 500 A.2d 163 (1985). That case involved an appeal from preliminary objections in the nature of a demurrer sustaining 5 of 6 counts of a complaint. The first count alleging breach of contract was not dismissed. However, the counts alleging intentional interference with prospective contractual relations were dismissed. The court stated the general rule that an order dismissing some counts of a multi-count complaint is interlocutory and stated the exception as put forth in Cloverleaf Development, supra, 347 Pa.Super. at 81, 500 A.2d at 166-67:

However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is “out of court” with respect thereto. Id., 313 Pa.Superior Ct. at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. (Emphasis added.)

The cases in this court disclose that while we recognize the general law concerning multi-count complaints, we focus our attention on the nature of the counts to determine if they set forth separate causes of action, rather than alternate theories dealing with one cause of action. In practice, this can be most difficult as various counts in a complaint are often overlapping and frequently subsequent counts incorporate by reference what is set forth in a prior count. The case of Capanna v. Travelers Insurance Company, supra, involved a complaint in assumpsit setting forth three counts. The first count sought basic loss benefits in the nature of work loss benefits, medical expenses, and funeral expenses on behalf of the estate of the appellant’s decedent. The second count similarly sought work loss benefits, medical expenses and funeral expenses, alternatively on behalf of the appellant as a “survivor”. The third count sought “survivor’s loss” benefits, on the appellant’s own behalf. The trial court granted a motion for judgment on the pleadings as to the third count. We found the order appealed from not to be interlocutory as claims for work loss benefits and survivor’s loss benefits are discrete causes of action.

In some cases it is difficult to discern whether the various counts set forth separate causes of action or are merely alternative theories of recovery. An example of this is found in General Machine Corporation v. Feldman, 352 Pa.Super. 180, 507 A.2d 831 (1986). To illustrate the problem, we will quote at length from the court’s opinion at 352 Pa.Super. 183-4, 507 A.2d 832, 833:

In Count I of the complaint, appellant General alleged that appellees had breached their contract to represent General in certain litigation in federal court. Count II of the complaint incorporated by reference the facts averred in Count I, and demanded damages for appellees’ allegedly tortious conduct as established by the facts in Count I. In Count III of the complaint, appellant Reliance claimed that appellees had breached their contract to represent Reliance in certain other federal court litigation. Count IV incorporated by reference the facts averred in Count III, and demanded damages for appellees’ tortious conduct as established by the facts in Count III. In Count V, appellant General sought damages for appellees’ conversion of certain documents belonging to General. Finally, in Count VI, appellant Perelman sought damages from appellees for assault and for the robbery of documents and services.
In response to the complaint, appellees filed preliminary objections which included demurrers to Counts II, IV, and VI. The trial court sustained the demurrers to these counts by an order of March 6, 1985. Appellants now contend that the lower court erred in dismissing Counts II and IV of their complaint since these counts stated a cause of action for tortious conduct____
In the first instance, it should be noted that this Court lacks the jurisdiction to address appellant’s first claim based on this Court’s decision in the Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (en banc). According to the Praisner court, when separate counts of a multi-count complaint have been used to state alternative theories of recovery on the same cause of action, an order dismissing or entering judgment on one or more but not all counts of the complaint is interlocutory, since plaintiff still can proceed to a determination on the underlying cause of action.
In the instant case, we note that Counts I and II and Counts III and IV, respectively, state alternative theories of recovery for appellees’ alleged attorney malpractice action; Counts I and III having for their basis a breach of contract claim, and Counts II and IV having for their basis a tortious misconduct claim. Since Counts II and IV of appellants’ complaint are still viable, we therefore conclude that the appeal taken pursuant to the order dismissing Counts II and IV of appellants’ complaint is interlocutory and unappealable.

We note that although Counts II and IV were dismissed, the court found that they were still viable. The dismissed Counts II and IV had as a basis a tortious misconduct claim, and Counts I and III which were not dismissed were based on contract. Nevertheless, the court found that the counts merely stated alternative theories of recovery for malpractice.

From the above discussion, it appears that this court has great difficulty in determining whether separate causes of action are set forth, as distinguished from alternate theoríes of the same cause of action, particularly in the pleading stage. Perhaps it is time to re-examine Praisner v. Stocker, supra, in order to develop a rule that will lead to greater predictability of result where appeals are taken while the underlying action continues in the court below.

It is obvious that the separate cause of action test may result in piecemeal appeals to this court which we previously sought to avoid. For example, in Post v. Mendel 336 Pa.Super. 467, 485 A.2d 1176 (1984) a two count complaint was brought by one lawyer against another lawyer. One count was based on slander and one on libel. Preliminary objections in the nature of a demurrer were filed to both counts. The court below granted the preliminary objection as to the libel count (Count I) and denied the preliminary objections as to Count II for slander. The court allowed the plaintiff an opportunity to amend Count II. The plaintiff appealed to this court and we quashed the appeal from the dismissal of Count II as interlocutory, but granted the appeal as to Count I. We held that the two counts constituting the complaint in trespass were not theories in support of defamation arising out of the same transaction since the libel count referred to letters allegedly defaming the plaintiff, and the slander count covered statements supposedly made to other individuals. With respect to the slander count, the order did not end the litigation.

Under the present law, we still acknowledge the rule that dismissal of some, but not all, of the counts of a multi-count complaint is a non-appealable order, but the rule is a mere shadow of what it once had been. The current law appears to be as stated by Judge Wieand in Morrow v. Bell Telephone Company of Pennsylvania, 330 Pa.Super. 276, 283, 479 A.2d 548, 552 (1984):

Appellant’s averments stated at least three, possibly four, causes of action. An order dismissing one or more of these separate causes of action, therefore, was appealable. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). (Emphasis added.)

The test under Praisner, supra is that if separate and distinct causes of action are set forth, in separate counts, an order dismissing any count is appealable. See Grant R. Wright, Inc. v. Haworth Energy Resources, Inc., 337 Pa. Super. 115, 486 A.2d 507, footnote 2, (1984); Black v. Board of Directors of West Chester Area School District, 98 Pa.Cmwlth. 91, 510 A.2d 912 (1986).

In the instant case, the appellant filed a second Amended New Matter and Counterclaim setting forth Counts IV and V which alleged negligence, as well as the first three Counts which we have discussed above. In determining if the order of February 9, 1986 is appealable, we must examine the complaint and determine not merely if the appellant as a litigant is out of court as to all counts, but whether it is out of court as to a separate cause of action, notwithstanding that other distinct causes of action remain before the court. The order places the appellant out of court as to Counts I, II and III only to the extent that the counterclaim “asserts a cause of action for breach of an implied warranty of habitability.” Nowhere in Counts I, II and III does the appellant claim a breach of such an implied warranty. The counts claim breach of contract as well as misrepresentation. The three counts do not set up separate causes of action, but all are based upon the underlying lease. While the counts overlap and are not distinct, we are convinced that the appellant is not out of court as to any cause of action alleged, and that accordingly the order appealed from is interlocutory. Under the general rule that an order dismissing some of the counts on a multi-count complaint, the order is clearly interlocutory. Applying Praisner, supra, as interpreted in Cloverleaf Development v. Horizon Financial F.A., supra, we find that Counts I, II and III set forth alternate theories to recover for breach of contract and dismissal of a claim based on implied warranty of habitability is merely dismissal of one theory relating to breach of contract. The counts remain intact, since there was no expressed cause of action based on breach of implied warranty. Accordingly, the order appealed from is interlocutory and should be quashed.

Appeal quashed. Jurisdiction is relinquished.

      . An order sustaining preliminary objections and dismissing a counterclaim is appealable if it puts the defendant out of court as far as the counterclaim is concerned even though the validity of the plaintiffs claim is’ still undetermined. Zivitz v. Centennial Road Properties, Inc., 328 Pa.Super. 79, 476 A.2d 462 (1984).

      . We recently acknowledged the general law in Pennsylvania in Winterhalter v. West Penn Power Company, 355 Pa.Super. 17, 21, 512 A.2d 1187, 1189 (1986), footnote 3.
      3. Appellee contends that this appeal is interlocutory since an order which dismisses some but not all counts of a multicount complaint is not a final order and hence is not appealable. Appellee correctly states the law in this Commonwealth. (Emphasis added.)

      . "A cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief.” Standard Pa. Practice, 2nd § 6:1, page 5.

      . The Supreme Court has neither reviewed nor cited Praisner v. Stocker, supra, in any decision.

      . The Supreme Court in Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986) reversed our decision but not on the issue of the appealability of the order. The Supreme Court reversed and remanded for new trial on the issue of the privilege attaching to extra judicial communications.