author: LIPEZ, Judge:

text:
    446 A.2d 1284
    Claire COHEN and Lipman Cohen, Appellants, v. JENKINTOWN CAB COMPANY and/or Jenkintown Taxi Company.
    Superior Court of Pennsylvania.
    Argued June 11, 1980.
    Filed April 23, 1982.
    Rehearing Denied July 15, 1982.
    Petition for Allowance of Appeal Sept. 9, 1982.

      Fred Lowenschuss, Philadelphia, submitted a brief on behalf of appellants.
    James M. Marsh, Philadelphia, for appellee.
    Herbert Somerson, Philadelphia, for participating parties.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

After the second trial of this negligence action, plaintiffs obtained a judgment for $150,000 against the defendant cab companies. Defendants appealed that judgment, and this court affirmed per curiam. Cohen v. Jenkintown Cab Company, 282 Pa.Super.Ct. 625, 425 A.2d 850 (1980). While that appeal was pending, the court below entered five orders, all dated August 21, 1979. From these five orders, plaintiffs took this appeal. Plaintiffs have abandoned any challenge to three of the orders by failing to raise any issue concerning them in their brief. We shall dismiss the appeal as to those three orders.

The two remaining orders granted petitions by the defendants’ insurer, appellee National Indemnity Company. One was a petition to intervene, which the court below granted solely to allow National Indemnity to pursue the other petition, which was captioned as a “Petition for Leave to Pay Funds into Court.” Besides the questions of whether these two petitions were properly granted, we must also decide National Indemnity’s motion to quash this appeal, which this court en banc has referred to this panel by per curiam order, stating, “AND NOW, December 11, 1979, decision on the within Motion to Quash is hereby deferred until oral argument and review of the briefs and record on the appeal dismissal issue, along with other issues on the merits.” We shall deny the motion to quash, affirm the order granting National Indemnity leave to intervene, and reverse the order granting the petition captioned “Petition for Leave to Pay Funds into Court.”

The issues in this appeal have been obscured by bitter procedural wrangling. The only thing on which the briefs for National Indemnity and the plaintiffs seem to agree (and in this they are correct) is that the lower court’s order is inconsistent with the opinion in support of that order. To decide both the motion to quash and the appeal itself, we must first understand precisely what the so-called “Petition for Leave to Pay Funds into Court” requested and the order granted. This in turn can only be understood in light of what led National Indemnity to file its petition in the first place—our Supreme Court’s decision in Incollingo v. Ewing, 474 Pa. 527, 379 A.2d 79 (1977).

Like this case, Incollingo involved the issue of an insurance company’s liability for interest on a judgment against its insured when the amount of the judgment exceeds the policy limit. Like National Indemnity in this case, the two insurer appellees in Incollingo had $10,000 policy limits, vastly exceeded by the amount of the judgment against their insureds. One of the insurers, Firemen’s, had relevant policy provisions very similar to National Indemnity’s. Firemen’s provisions were quoted in Incollingo as follows:

“With respect to such insurance as is afforded by this policy, the company shall:
(a) defend any suit against the insured alleging . .. injury and seeking damages on account thereof . . .
(b) (2) pay all expenses incurred by the Company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in the Court such part of such judgment as does not exceed the limit of the Company’s liability thereon . . . and the amounts so incurred, except settlement of claims and suits, are payable by the Company in addition to the applicable limit of liability on this policy.

Incollingo v. Ewing, supra, 474 Pa. at 531, 379 A.2d at 81.

The Court first rejected Firemen’s contention that it owed no interest because it could not be liable for any amount in excess of its $10,000 policy limit, stating:

We adhere to the general rule stated in Hafer [v. Schauer, 429 Pa. 289, 239 A.2d 785 (1968) ] that absent an insurer’s agreement to do so, an insurer is not liable for interest in excess of policy limits. We hold today, however, contrary to Hafer, that when an insurance company contracts with an insured to “pay ... all interest accruing after entry of judgment,” Pennsylvania law requires that the defendant pay interest computed from the date of verdict to the entry of judgment and interest on the amount of the judgment entered thereafter.

Id., 474 Pa. at 537, 379 A.2d at 84. The Court also rejected an alternative argument by Firemen’s as follows:

Firemen’s argues that its interest liability should be calculated on the basis of the ratio of its policy limit to the judgment. We find Firemen’s argument without merit. Here again the contract between insured and insurer is controlling. Firemen’s easily could have limited its interest liability on a large judgment against its insured to that portion of the judgment covered by its policy. No such provision appears in the contract between Fireman’s [sic] and its insured. We read Firemen’s policy as saying, in effect, it will pay all interest on the judgment until it tenders its part of such judgment, not as saying it will pay interest on its part of the judgment until it tenders its part of the judgment.

Id., 474 Pa. at 538, 379 A.2d at 85 (emphasis in original).

Because of Incollingo, even though National Indemnity had a policy limit of $10,000, its liability for interest on the full $150,000 judgment was continuing to accrue while the appeal from the judgment was pending. In an effort to stop the running of interest, National Indemnity filed the document captioned “Petition for Leave to Pay Funds into Court,” which stated in pertinent part:

4. The said Insuring Agreement 11(b)(2) provides, inter alia, that the insurer will “pay ... all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the Company’s liability thereon”, in this case $10,000.
5. In order to limit its liability for interest under this paragraph, your Petitioner desires to pay into this Court, to hold pending the outcome of the appeal which it is prosecuting on behalf of its insured, a sum equal to the limits of the policy plus interest on the verdicts up to the date of the payment into Court, a total of $23,875.00.
6. Under the terms of the policy, specifically “Exhibit A” hereto, your Petitioner’s ultimate liability to its insured cannot exceed the said sum of $23,875.00, even if the verdicts totalling $150,000 should be sustained on appeal.
7. If this motion is not granted, your Petitioner would be seriously and irreparably prejudiced because its only alternatives would be to (a) pay the said $23,875.00 to plaintiff with the knowledge that the money can never be recovered if the verdicts are overturned on appeal, or (b) do nothing and have to defend a claim that it is obligated to pay not only its limits but interest on the verdicts until the date of payment, after appeal (if the appeal is unsuccessful) which interest would accrue at the rate of $750.00 per month for as long as the appeal is pending in the Superior and Supreme Courts.
WHEREFORE, your Petitioner prays this Honorable Court permit your Petitioner to pay the said sum of $23,875.00 into this Court, to be held pending the final appellate decision as to whether or not your Petitioner’s insured is liable to plaintiffs above named.

The court below granted this petition in the following order:

And now, this 21st day of August, 1979, after oral argument on August 10, 1979, the petitioner’s, National Indemnity Company, Petition of National Indemnity for Leave to Pay Funds into Court of August 15, 1978, is granted.
The petitioner, National Indemnity Company, is granted leave to pay into court as of August 15, 1979, the sum of $23,875.00 to be held pending determination of this matter presently pending upon appeal in the Superior Court of Pennsylvania.

This order explicitly gave National Indemnity exactly what it had asked for in its petition—a judicial determination that National Indemnity could stop the running of interest on its liability by handing over to the court an amount sufficient to cover its liability up to the date the money was handed ovér. Under the terms of the order, as National Indemnity had requested, the money would be returned to National Indemnity if its insureds were ultimately successful on appeal; if they were unsuccessful, the money would satisfy National Indemnity’s obligations in full with no additional interest liability from the time the money was placed with the court to the final adjudication of the matter.

Given these facts, we can easily dispose of National Indemnity’s motion to quash. National Indemnity’s brief contends that plaintiffs lack standing to challenge the lower court’s orders granting National Indemnity’s petitions.

Our cases dealing with standing have been summarized in Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975):
“The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law.”
464 Pa. at 192, 346 A.2d at 280-81 (plurality opinion). Accord, e.g., Independent State Store Union v. Pennsylvania Liquor Control Board, 495 Pa. 145, 432 A.2d 1375 (1981). Moreover, “the relationship between the challenged action and the asserted injury must be direct and immediate, not a remote consequence.” Independent State Store Union, supra, 495 Pa. at 154, 432 A.2d at 1380.

Application of El Rancho Grande, Inc., 496 Pa. 496, 503, 437 A.2d 1150, 1153 (1981).

The effect of the orders appealed in this case was to reduce the amount of interest plaintiffs would be able to collect from National Indemnity on the judgment they had against its insureds, the defendant cab companies. It could hardly be clearer that plaintiffs have a direct, immediate and substantial interest, which is particular to them, in the amount of interest they will be able to collect from the defendant’s insurer. The motion to quash must therefore be denied.

We can also easily dispose of plaintiffs’ first contention—that under Rule of Appellate Procedure 1701(a), the lower court had no jurisdiction to enter the orders granting National Indemnity’s petitions after the appeal had been taken from the judgment against National Indemnity’s insureds, the defendant cab companies. Rule of Appellate Procedure 1701(c), however, provides that the lower court’s deprivation of jurisdiction after an appeal is taken is limited to matters in dispute in the appeal. The question of National Indemnity’s liability for interest on the judgment is not, and could not be, involved in the defendant cab companies’ appeal from the underlying judgment. The court below thus correctly held that National Indemnity’s petitions dealt with, collateral matters on which it could properly act while the defendant cab companies’ appeal was pending. Cf. Commonwealth ex rel. Brown v. Brown, 254 Pa.Super.Ct. 410, 414, 386 A.2d 15, 17 (1978); see also Wilson v. Wilson, 297 Pa.Super.Ct 14, 21-22, 442 A.2d 1189, 1192-93 (1981). Since this is plaintiff’s only ground of attack on the order granting leave to intervene, that order will be affirmed.

However, we agree with plaintiffs’ one remaining contention, that the court below erred in granting the petition captioned as a “Petition for Leave to Pay Funds into Court.” Despite its caption, the petition did not request leave to pay funds into court. As the court below correctly stated in its opinion:

Money paid into court becomes the absolute property of the other party, Baldwin Township School District v. Pittsburgh Terminal Coal Corporation, 328 Pa. 17, 18-19 [194 A. 900] (1937), and the tenderer cannot ordinarily withdraw it or recover any part of it, even if he eventually prevails in the action. 15 Standard Pennsylvania Practice, Ch. 74, § 24. Berkheimer v. Geise, 82 Pa. 64, 67 (1876); Haug et ux. v. Old Guard Mutual Insurance, 4 D. & C.2d 436, 441-2 (1955); see also; 35 A.L.R. 1252; 74 Am.Jur.2d Tender, § 31; 86 C.J.S. Tender, § 65.

What National Indemnity’s petition requested, and the lower court’s order explicitly granted, was the right to get the money returned if the pending appeal were successful, while at the same time stopping the further accrual of National Indemnity’s interest liability if the appeal were not successful.

Plaintiffs contend, and we agree, that funds are not “deposited in court” as required by the policy to stop further accrual of the insurer’s interest liability, unless the insurer relinquishes any claim to the money, making it the absolute property of the judgment holder even if the judgment is later reversed on appeal. National Indemnity’s petition did not request this, and the order of the court below accordingly did not grant it. Because the order allows National Indemnity to stop the accrual of its interest liability without relinquishing its claim to the money if the judgment is overturned on appeal, the order is not in accordance with the requirements of the policy and must be reversed.

Motion to quash denied; order granting the “Petition of National Indemnity Company for Leave to Intervene” affirmed; order granting the “Petition of National Indemnity Company for Leave to Pay Funds into Court” reversed; appeal dismissed as to remaining three orders dated August 21, 1979.

      . The first trial had resulted in verdicts for the defendants, but the trial judge’s grant of a new trial was affirmed by this court. Cohen v. Jenkintown Cab Company, 238 Pa.Super.Ct. 456, 357 A.2d 689 (1976).

      . The three orders as to which the appeal has been abandoned are listed on plaintiffs’ notice of appeal as “Order Re Defendants’ Motion for Protective Order of March 8, 1979,” “Order Re Plaintiffs’ Petition for Sanctions against Defendants and National Indemnity Company, Attempted Intervenor, of January 18, 1979,” and “Order Re Plaintiffs’ Petition for Disqualification of the law firm of LaBrum & Doak as Counsel for Defendants and National Indemnity Company of November 29, 1978.”

      . While National Indemnity’s brief devotes much space to this issue, we have not discussed it at length, because we find the brief’s contentions confusing as well as occasionally self-contradictory. Particularly baffling is the assertion that plaintiffs are strangers to the litigation. It is National Indemnity which is a stranger to the litigation. That is why it was necessary for National Indemnity to obtain leave to intervene in order to pursue its “Petition for Leave to Pay Funds into Court.”

      . “(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.” Pa.R.A.P. 1701.

      . “(c) Limited to matters in dispute. Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the lower court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the lower court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.” Pa.R.A.P. 1701.

      . Plaintiffs objected to the intervention on additional grounds in the court below, but these have been abandoned on appeal.

      . The context of the phrase “deposited in court” in National Indemnity’s policy is a standard clause providing that the company’s interest liability continues to accrue “until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon.” Thus “deposited in court” is set up in parallel with “paid” and “tendered.” What these three methods of stopping further accrual of the company’s interest liability are intended to have in common is that in each method, the company makes an amount equal to the limits of its total liability to date unconditionally and immediately available to the judgment holder. Apparently in recognition of this functional equivalency, the Incollingo opinion refers only to tender in interpreting the same clause in Firemen’s policy: “We read Firemen’s policy as saying, in effect, it will pay all interest on the judgment until it tenders its part of such judgment, not as saying it will pay interest on its part of the judgment until it tenders its part of the judgment.” Incollingo v. Ewing, 474 Pa. 527, 538, 379 A.2d 79, 85 (1977) (emphasis deleted). If read literally, this statement in Incollingo seems to say that only tender, and not payment or deposit in court, will suffice to halt the accrual of the company’s interest liability. We do not believe the intent of Incollingo is to read “paid” or “deposited in court” out of this standard insurance policy clause. Rather, Incollingo used the term “tender” as functionally synonymous with payment and deposit in court. While technically imprecise, this usage conveys the essentially correct meaning that all three methods of stopping the running of interest do the same thing—relinquish all claim to the money by the insurance company to the judgment holder. Such linguistic imprecision in this esoteric area is not uncommon. See e.g., Blashfield, 8 Automobile Law and Practice § 345.6, at 471 (“The company is not liable for interest on the amount recovered in excess of the policy limits where it unconditionally paid or tendered into court its full policy limit, prior to a judicial demand.”).
      We have had nearly as much difficulty understanding the argument in National Indemnity’s brief on this issue as we did on the question of standing. See note 3, supra. National Indemnity appears to be saying that we should ignore the meaning of “deposited in court” in other contexts (as a substitute for interpleader proceedings, for example) and interpret it as it is used in the insurance policy. With this, of course, we agree. What was said in Incollingo v. Ewing, supra, 474 Pa. at 534, 379 A.2d at 83, quoting with

        approval Hafer v. Schauer, 429 Pa. 289, 298, 239 A.2d 785, 790 (Roberts, J., dissenting) concerning the meaning of “verdict” and “judgment” is equally applicable in interpreting “deposited in court”: “That these words have different meanings in other contexts is here irrelevant.” As demonstrated above, the context of “deposited in court” in the insurance policy makes it clear that it merely provides for an alternative procedure which is the functional equivalent of a tender. See 26 A C.J.S. Deposits in Court § 1.b(2) at 471 & nn. 3-4 (1956).

      . The court below, apparently recognizing its error, attempted in its opinion to reinterpret its order as requiring National Indemnity to relinquish all claim to the money, making it immediately available to plaintiffs. Both parties in this appeal have correctly recognized that it is the order, and not the opinion, which is controlling. The appeal is from the order, not the opinion. See Lengyel v. Black, 293 Pa.Super.Ct. 297, 438 A.2d 1003 (1981). The opinion cannot be treated as an attempt to modify the original order. The opinion was filed more than three months after entry of the order. The court had no power to modify at that time, both because this appeal had already been taken and because more than 30 days had passed since the entry of the order. 42 Pa.C.S. § 5505. Furthermore, no party had requested modificátion of the order. Neither had National Indemnity’s petition requested leave to pay money into court in the sense of relinquishing all claim to the money. Despite the use of the nomenclature of payment into court in the caption,- the specific terms of the petition control over an erroneous use of nomenclature. Cf. Van Brakle v. Lanauze, 293 Pa.Super.Ct. 276, 279 n. 2, 438 A.2d 992, 993 n. 2 (1981). Similarly, although the lower court’s order used the nomenclature of payment into court, it clearly granted what National Indemnity had requested in its petition by specifically providing that the money was “to be held pending determination of this matter presently pending upon appeal in the Superior Court of Pennsylvania.”
      We note that in one recent case, a panel of this court vacated the lower court’s order and remanded for reconsideration because the trial court had concluded in its opinion that its order had been erroneous. MNC Corporation v. Mt. Lebanon Medical Center, Inc., 294 Pa.Super.Ct. 405, 406, 440 A.2d 528, 529 (1982). It is not clear whether this procedure could be applicable to this case, since the court below reinterpreted its order in its opinion rather than concluding that the order had been erroneous. In any event, we do not view this procedure as mandatory, but merely as one method which might be the most expeditious way of resolving a procedural dilemma in some circumstances. We conclude that this would be a peculiarly inappropriate case for employing this procedure, as it would certainly cause further delay and probably cause more confusion, if that is possible.

      . Plaintiffs also contend that $23,875.00, the amount which the lower court’s order permitted National Indemnity to place with the court as of August 15, 1979, was approximately $9,000 less than National Indemnity’s actual liability as of that date. We need not reach this question, since it necessarily follows from our reversal of the lower court’s order that National Indemnity’s interest liability continues to accrue.
      We have also found it unnecessary to determine how many, and which, of the defendant cab companies National Indemnity insures. In its “Petition for Leave to Pay Funds into Court,” National Indemnity asserted that it insured “at least one of the defendants.” We have referred to National Indemnity’s “insureds” throughout this opinion merely for convenience, and our use of the plural does not imply that we have made any finding on how many defendants National Indemnity insures.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    446 A.2d 1290
    COMMONWEALTH of Pennsylvania, v. Henry BOYD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed June 18, 1982.

      Richard A. Umbenhauer, Lancaster, for appellant.
    Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and LIPEZ, JJ.
   CERCONE, President Judge:

This is an appeal from an order dismissing without a hearing appellant’s pro se petition requesting relief under the Post Conviction Hearing Act (PCHA).

On January 26, 1978 appellant was found guilty by a jury of his peers of criminal attempt to commit first degree murder. He was represented at trial by one Harold W. Budding. Post-verdict motions were timely filed by appellant’s trial counsel. Appellant then filed a pro se PCHA petition, which was dismissed by the court without a hearing, but appellant was appointed new counsel, one Robert A. Longo, who was directed by the court to aid appellant in developing his ineffectiveness claim. Subsequently, with the advice of his new counsel, appellant requested and the court granted him the right to withdraw the post-verdict motions filed by trial counsel. Thereafter, appellant was sentenced to four to eight years imprisonment. Following the imposition of sentence appellant filed a second PCHA petition pro se. Once again the court appointed Robert Longo to aid appellant. The court also issued a rule to show cause why a hearing should not be held on appellant’s petition. The Commonwealth answered and the court dismissed appellant’s petition without a hearing; no amended petition had been filed. Appellant took no appeal from the dismissal of his second PCHA petition. Appellant later filed a third pro se PCHA petition, alleging with some specificity the ineffectiveness of both Budding and Longo, and requesting the appointment of counsel to aid him in ferretting out prior counsels’ ineffectiveness. The court did not comply with appellant’s request but dismissed the petition without a hearing. Appellant filed a timely pro se appeal to this Court, and. we appointed appellant’s present counsel.

Appellant now argues that both Mr. Budding and Mr. Longo ineffectively represented him, that he has not knowingly and intelligently waived the merits of his ineffectiveness claims, and that it was error for the lower court to dismiss his third pro se PCHA petition without first appointing counsel and conducting a hearing. Our polestar and guiding light in reviewing claims of ineffective assistance of counsel is the time honored case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where the Supreme Court stated:

Counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.

Id., 429 Pa. at 604, 235 A.2d at 352. The Supreme Court elaborated the Maroney standard in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). It stated there:

In Maroney we noted that “a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. Because counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion. See e.g., Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Harrison, 228 Pa. Superior Ct. 42, 323 A.2d 848 (1974); cf. Commonwealth v. Goosby, 461 Pa. 229, 336 A.2d 260 (1975); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for ... counsel’s decision not to pursue the matter. Thus the starting point of our inquiry is whether there were reasonable grounds upon which to advance the . .. claims which were not advanced. . . .

Id., 472 Pa. at 277-278, 372 A.2d at 695. The initial factor we must consider is whether there is any arguable merit in the positions appellant now asserts, for it is axiomatic that counsel will not be deemed ineffective for failure to assert a baseless claim. See Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977); Commonwealth v. Payton, 253 Pa. Superior Ct. 422, 385 A.2d 410 (1978); Commonwealth v. Hawkins, 240 Pa. Superior Ct. 56, 362 A.2d 374 (1976). If we find that the contention is of arguable merit then we must proceed to determine whether the course of action followed by counsel had some reasonable basis designed to effectuate his client’s interests. See Commonwealth ex rel. Washington v. Maroney, supra.

Appellant contends that Mr. Budding was ineffective in his preparation of the case for trial, as well as in his conduct at trial. Appellant claims that Mr. Budding’s pretrial preparation consisted solely of a five-minute conversation with his client. There appears to be some support for this factual claim in the trial record. Appellant also contends that Mr. Longo was ineffective in his handling of appellant’s post-verdict motions and the subsequent PCHA petition. The record clearly indicates that Mr. Longo filed no amended PCHA petition following his appointment as PCHA counsel, nor is there any indication in the record as it now stands, that Mr. Longo took any action whatsoever. Based on the scanty record before us we cannot say that these were baseless claims.

The Commonwealth contends that even if appellant’s claims are of arguable merit they have been waived. We disagreé. It has been clear for some time that the ineffectiveness of counsel constitutes an extraordinary circumstance justifying an appellant’s failure to raise an issue and thus vitiate the effect of the waiver rule. See Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980); Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973). Appellate counsel has argued that prior counsel’s ineffectiveness constituted such extraordinary circumstances and that thus appellant has not waived the issues. It is true that appellant did not himself allege lack of voluntary waiver based on his counsel’s ineffectiveness, but we cannot fáult him for that because the PCHA petition was, after all, uncounselled. Moreover, appellant specifically requested the appointment of counsel to help him flesh out his PCHA claims. Clearly, the lower court erred when it dismissed appellant’s third PCHA petition without first appointing counsel or conducting a hearing. See Commonwealth v. Watlington, supra. Accordingly, we reverse and remand the case with instructions to appoint counsel to represent appellant in the filing of an amended petition, and any further proceedings appropriate thereon.

Reversed and remanded with instructions.

Jurisdiction of this Court is not retained.

      . Act of June 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. §§ 1180-1 et seq., repealed § 2(a) [1397] of the Act of April 28, 1978, P.L. 202, No. 53, reinstated and continued by the Act of June 26, 1981, No. 41, § 1; effective through June 26, 1982.


text:
    446 A.2d 1293
    COMMONWEALTH of Pennsylvania v. Ronald TOWNES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed June 18, 1982.

      Charles Golin, Lancaster, for appellant.
    Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   CERCONE, President Judge:

Appellant, Ronald S. Townes, takes this appeal from the lower court’s dismissal, without a hearing, of appellant’s petition under the Post Conviction Hearing Act (PCHA). We find that the court erred in dismissing this petition without first appointing counsel to represent appellant in this matter.

On July 15, 1977, appellant entered a plea of guilty to charges of robbery and criminal conspiracy. At this time appellant was represented by Thomas E. Harting, Esquire, of the Public Defender’s Office of Lancaster County. Subsequently, appellant was sentenced and appellant filed a pro se motion to withdraw his guilty plea. New counsel, Robert Longo, Esquire, was appointed to represent appellant in this matter. Counsel did not file an amended motion on appellant’s behalf but counsel did appear for appellant at the hearing on this motion. The motion was denied, but appellant did not appeal from this ruling.

On March 30, 1979, appellant filed a pro se PCHA petition in which he raised the issue of ineffectiveness of trial counsel. Appellant requested that, an attorney be appointed to represent appellant for this PCHA petition. The court, however, dismissed appellant’s petition without appointing counsel and without a hearing, ruling that all of the issues raised by appellant were previously litigated at the hearing on appellant’s motion to withdraw his guilty plea. Thereafter, appellant filed pro se the instant PCHA petition. In this second petition, appellant raises the issue of ineffective assistance of trial counsel, Mr. Harting, and of Mr. Longo. Appellant states that Mr. Longo’s name remains as counsel of record and therefore appellant claims that counsel was ineffective for failing to appeal from the denial of appellant’s initial PCHA petition. Contained in this second petition was appellant’s request for the appointment of counsel. As before, the court summarily dismissed this petition, without appointment of counsel. This was error.

In Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431, 433-434 (1980), the Supreme Court quoted from its earlier opinion in Commonwealth v. Mitchell, 427 Pa. 395, 397, 235 A.2d 148, 149 (1967), in which the court stated:

We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner’s claims. Counsel’s ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967): ‘It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se.... Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statements of claims are functions of an advocate that are inappropriate for a judge, or his staff.’ (Emphasis added by the Court in Watlington).

See also, Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980); Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1975); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975).

Furthermore, we find that the lower court was in error in its implicit conclusion that all of the issues raised by appellant in this, his second PCHA petition, were either litigated or waived by the disposition of the previous PCHA petition. It is settled law that a theory of waiver or final litigation cannot be predicated upon an uncounseled proceeding. Commonwealth v. Sangricco, supra; Commonwealth v. Fiero, supra; Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969).

Accordingly, appellant’s case must be remanded for appointment of counsel to represent appellant in the presentation of his PCHA petition.

Reversed and remanded for appointment of counsel.

Jurisdiction of this Court is not retained.

       The Post Conviction Hearing Act, 1966, Jan. 25, P.L. (1965) 1580, § 5, as amended 1970, Nov. 25, P.L. 759, No. 249, § 1, as amended by Act 1980, June 26, P.L. 265, No. 77, § 2, 19 P.S. §§ 1180-1 et seq. (Supp.1981).


author: BROSKY, Judge:

text:
    446 A.2d 1294
    Robert F. HANSEL, Jr., Administrator d/b/n/c/t/a of the Estate of Robert F. Hansel, Sr., Deceased, Appellant, v. Girard HANSEL and Leon Hansel, as Co-Executors under will of Stephen R. Hansel, Deceased, and Helen E. Hansel, individually.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed June 18, 1982.
    Reargument Denied Sept. 17, 1982.
    Petition for Allowance of Appeal Denied Dec. 17,1982.

      Joseph Colavecchi, Clearfield, for appellant.
    James A. Naddeo, Clearfield, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

This appeal concerns an action brought in equity seeking an accounting of certain partnership interests. Appellant is the son of Robert F. Hansel, Sr., deceased. In January, 1946, Robert F. Hansel, Sr. and his brother, Stephen, formed two partnerships: S. R. Hansel Coal Mining Company and S. R. Hansel Farms. A written agreement termed “Partnership Agreement” was signed by Robert and Stephen Hansel March 27, 1948. Clause (10), entitled “Termination by Death,” states that upon the death of either party, the surviving partner shall have the option to purchase the deceased party’s interest in the partnership. In 1961, Robert and Stephen Hansel drafted and signed an agreement termed, “Articles of Agreement—A Restatement of a Partnership Already Existing But Which Terms Were Never in Writing.” The agreement provided that the profits and losses of the business shall be distributed and borne in the following proportions: S. R. Hansel, % share, and Robert Hansel, % share. Clause (17) provided that in the event of the death of one of the partners, the partnership shall continue for a period of three years and with the written consent of the widow and/or executor, for a further two year period. Clause (19) provided that the value of the deceased partner’s interest shall be determined by an audit of the books of the company as of the day of death of the deceased partner.

On August 29, 1963, Robert F. Hansel, Sr. died testate. At that time, all but one of his heirs were minor children. Girard Hansel, son of surviving partner, Stephen Hansel, and Wendell Hansel, brother of both partners, were appointed co-executors of Robert Sr.’s estate. Stephen Hansel continued to operate the partnerships until his death on March 9, 1971. Stephen’s sons, Girard and Leon, were appointed co-executors of their father’s estate.

No accounting of the partnerships was filed by Robert Sr.’s executors at the time of his death. Nor was an accounting filed by Stephen’s executors at the time of his death. In 1974, an accounting of Robert Sr.’s estate was filed by Girard Hansel. After examining the accounting, appellant concluded that it was inaccurate and improper and that his father’s affairs, as well as the business of the partnerships, had been mismanaged by the late Stephen Hansel and by Girard, Wendell and Leon Hansel. In 1975, appellant filed a petition to remove Girard and Wendell as co-executors of his father’s estate. Girard and Wendell were removed and appellant was appointed administrator d. b. n. c. t. a.

Thereafter, on September 26, 1979, appellant filed a complaint in equity against Girard and Leon Hansel as co-executors of the estate of Stephen Hansel and against Helen Hansel, Stephen’s widow, individually. In the complaint, appellant recounts one hundred and ninety-six separate financial transactions allegedly representing misuses of partnership funds. Appellant requested the following relief: payment by defendants to appellant as administrator d. b. n. c. t. a. of his father’s estate, the value of the interest of Robert Hansel, Sr. and S. R. Hansel Coal Mining Company and S. R. Hansel Farms as of the date of death of Robert Hansel, Sr., plus accrued interest; the filing by defendants of a full, complete and accurate accounting of the partnerships and the liquidation thereof from the date of Robert Sr.’s death; and the surrender by defendants of all books, records, papers and other property belonging to the partnerships. Appellant also requested that defendants be enjoined from exercising control over any property of the partnerships and from collecting any claims due the partnerships.

Preliminary objections in the nature of a demurrer were filed on behalf of the three defendants, in which it was alleged that appellant was guilty of laches in failing to file his claim within a reasonable time after the cause of action arose; and that by demanding damages in a specific monetary amount, appellant showed that he had an adequate remedy at law.

On December 16, 1975, the Court of Common Pleas of Clearfield County entered an order sustaining the defendants’ demurrer on two grounds: first, that appellant’s actions were barred by laches, and second, that appellant has an adequate remedy at law. The court noted that a total of 12 years had elapsed from the time of Robert Sr.’s death, and that to demand an accounting on the part of the defendants for that period would be unduly prejudicial to them because of the fact that the principal figure and sole surviving partner, Stephen Hansel, was deceased. Appellant then filed a petition for rehearing, reconsideration and clarification of the order, which was denied on September 8, 1976. Thereafter, appellant appealed both of these orders to our court, which returned the case to the Court of Common Pleas after determining that the order of December 16,1975 was not a final order.

On March 29, 1977, following argument upon a motion filed by appellant to amend his complaint, the Court of Common Pleas of Clearfield County entered an order granting appellant 20 days to amend his complaint. On April 15, 1977, appellant filed a “First Amended Complaint” in which he alleged that defendants made false representations regarding the value of the partnerships, with the intent to deceive and defraud appellant and the other beneficiaries of the Robert Hansel, Sr. estate, and that they conspired to prepare a false accounting of the S. R. Hansel Coal Mining Company. It is further alleged that appellant relied in good faith on the representations of the defendants and, as a result, refrained from demanding an accounting of the partnerships and from seeking to have Girard Hansel removed as executor of Robert Sr.’s estaté. According to averment (248), appellant did not seek Girard Hansel’s removal “until the fraudulent accounting was filed by Girard Hansel [in 1974].”

Preliminary objections in the nature of a demurrer were filed on behalf of the defendants to the amended complaint. In addition to alleging laches, the preliminary objections also allege that the complaint fails to set forth a claim against Girard and Leon as co-executors, and that the complaint fails to allege that appellant does not have an adequate remedy at law against Girard and Leon Hansel. It was also alleged that the complaint failed to plead the averments of fraud and misrepresentation with sufficient particularity, in violation of Pa.R.C.P. 1019.

On June 20, 1978, the Court of Common Pleas entered an order upholding the preliminary objections and dismissing appellant’s amended complaint. Stating that appellant alleged fraud “as the excuse for the 6 year delay,” the court held that “[wjhile it is true that fraud may be a valid excuse for laches, this court is of the opinion that the allegations of fraud in the instant case are not such as to give rise to an adequate excuse for the delay here.”

Specifically, the Plaintiff alleges ... that ... Helen Hansel received certain funds as a result of the fraud of others. Even if this were true, Plaintiff has not shown that the circumstances would justify such a lengthy delay in seeking an accounting.
Furthermore, the allegations of fraud against Girard Hansel are directed against him as an individual and not as a co-executor under the will of Stephen R. Hansel, the capacity in which he is sued. Certainly, Plaintiff may have a cause of action against Girard Hansel individually for a breach of his fiduciary duty as executor of the Robert F. Hansel, Sr. Estate, but such is not an issue in the above-captioned proceeding. Again, Plaintiff has not demonstrated why any such alleged fraud, even if true, would excuse the above-mentioned delay. In addition, Plaintiff has not alleged any element of fraud committed by Leon Hansel. . . .

On June 30, 1978, appellant took an appeal to our court from the June 20,1978 order. On July 25,1979, the Superior Court entered an order reversing the lower court, on the ground that laches is an affirmative defense which cannot be raised by demurrer but must be set forth under the heading of “New Matter.” 268 Pa.Super. 181, 407 A.2d 890. The case was remanded for further proceedings.

Thereafter, a petition for allocator was filed by defendants with the Supreme Court of Pennsylvania. On December 26, 1979, the Supreme Court issued an order granting the petition for allowance of appeal, reversing the Superior Court’s order and remanding the case to the Court of Common Pleas of Clearfield County, “for a redetermination of the preliminary objections raised by petitioners, including the plea of laches.” 487 Pa. 196, 409 A.2d 32.

A petition for clarification of this order was then filed by defendants. Thereafter, the Supreme Court issued an order amending its December 26, 1979 order to read that “the cause is to be remanded to the Superior Court to pass upon the merits of the plea of laches.” 490 Pa. 166, 415 A.2d 86.

DISCUSSION

Application of the doctrine of laches calls for consideration of all the circumstances involved, including an examination of the entire record, in addition to the complaint. Larrecq v. Van Orden, 21 Pa.Cmwlth. 623, 346 A.2d 992 (1975). The question of whether laches applies is thus a factual one. Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977). Here, our examination of the entire record leads us to conclude that the doctrine of laches is inapplicable and cannot be used to bar appellant’s suit.

Robert Hansel, Sr. died August 29, 1963. Under the Uniform Partnership Act, dissolution of a partnership is the change in the relations of the partners caused by any partner ceasing to be associated in the carrying on of the business. 59 Pa.C.S. § 351. One cause of dissolution is the death of a partner. 59 Pa.C.S. § 353. Therefore, the partnership was dissolved as of August 29, 1963, and as of that date, the right to an account of Robert Sr.’s interest accrued to his legal representative(s) as against the surviving partner, Stephen Hansel. 59 Pa.C.S. § 365. However, Robert Sr.’s legal representatives, Girard and Wendell Hansel, did not seek an account of his interest at the time of his death. Stephen Hansel continued the partnership business until his death on March 9, 1971. No account of the partnership was filed until some time in 1974, three years after Stephen Hansel’s death.

There can be no doubt that Robert Sr.’s legal representatives owed a fiduciary duty to his estate, which included the duty to seek an account of his partnership interest as of the date of his death. A partnership interest is considered personal property, 59 Pa.C.S. § 343; and a personal representative takes title to all personal property of the decedent at the time of death. 20 P.S. § 320.103.

In his amended complaint, appellant alleges that he did not seek to have Girard and Wendell Hansel removed as co-executors of his father’s estate “until the fraudulent accounting was filed by Girard Hansel.” It seems clear from the entire record that Girard and Wendell Hansel acted negligently in the performance of their duties as personal representatives, particularly with respect to the duty to seek an accounting. If, as the facts indicate, appellant was unaware of any wrongdoing on the part of Girard and Wendell Hansel until such time as an account was finally filed in 1974, then it cannot be said that appellant slept on his rights. When appellant realized that his father’s estate had been mismanaged, he quickly took action to have Girard and Wendell removed as co-executors. Once appointed administrator d. b. n. c. t. a. of his father’s estate, appellant had the power to recover the assets of the estate, and stood in his predecessors’ stead for all purposes. 20 Pa.C.S. § 3326.

Accordingly, as of the time of his appointment in 1975, appellant was legally entitled to seek, on behalf of himself and the other beneficiaries of the Robert Hansel, Sr. estate, an account of his father’s partnership interest from Stephen Hansel’s legal representatives, Girard and Leon Hansel. In that same year, 1975, appellant filed the suit sub judice.

As our Supreme Court stated in Lutherland v. Dahlen, 357 Pa. 143, 157, 53 A.2d 143, 150 (1947):

The question of “laches” in an equity suit does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but upon whether, under the circumstances, plaintiff is chargeable with want of due diligence in failing to institute or prosecute his claim.

In its original decision of December 16, 1975, the lower court reasoned that a total of 12 years had elapsed from the time of Robert Sr.’s death and that to demand an accounting for that period would be unduly prejudicial to Girard and Leon Hansel because of the fact that Stephen Hansel, the “principal figure,” had been deceased for several years.

This reasoning is incorrect. Although it is true that 12 years elapsed between Robert Sr.’s death and the filing of the first complaint by appellant, we are convinced from a reading of the entire record that appellant cannot be charged with a lack of diligence in prosecuting his claim. Lutherland v. Dahlen, supra. Appellant filed his claim approximately one year after the account was finally filed in 1974. While an account should properly have been filed at the time of Robert Sr.’s death, the fact that one was not is not chargeable to appellant. It was not until 1975, upon his appointment as administrator d. b. n. c. t. a. of his father’s estate, that appellant earned the right to seek an accounting. Since suit was filed that same year, it cannot be said that appellant was not diligent. We also find that appellant cannot be charged with lack of diligence in prosecuting his claim for another reason: fraud on the part of appellees. Even if appellant could have brought an action for an accounting prior to 1975, the record indicates that he was prevented from doing so due to appellees’ attempts to conceal their actions with respect to the partnership assets. Concealment or deceit tolls the application of the doctrine of laches. Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964).

With respect to prejudice, it cannot be said that appellees are unduly prejudiced because of Stephen Hansel’s death. The lengthy record in this case is replete with documentary evidence showing the various transactions made by Stephen Hansel as the surviving partner; accordingly, the fact of his death is inconsequential with respect to the ability of appellees to defend themselves. It would not be an injustice here to permit the assertion of appellant’s claim against appellees. Silver v. Korr, 392 Pa. 26, 139 A.2d 552 (1958).

It is well established that laches should not be declared unless the existence thereof is clear on the fact of the record. In re Maruschak’s Estate, 488 Pa. 607, 413 A.2d 649 (1980). Here, we find that the facts and circumstances of record negate the existence of laches.

Accordingly, we hold that the lower court erred in finding otherwise and we reverse its order of June 20, 1978 upholding appellee’s preliminary objections and dismissing appellant’s amended complaint. We direct that appellant’s Amended Complaint be reinstated and direct appellees to file an answer to said Complaint.

      . The pleadings aver that Wendell Hansel who at the times relevant to these proceedings lived in Ohio, did not take an active part in the administration of the Robert F. Hansel, Sr. estate.

      . The record does not contain a copy of the petition; therefore, it is not clear upon what grounds the removal was based. Under 20 Pa.C.S.A. § 3182, a personal representative may be removed if he, inter alia, is wasting or mismanaging the estate or has failed to perform any duty imposed by law. Act of June 30, 1972, P.L. 508, No. 164, § 2, eff. July 1, 1972, 20 Pa.C.S. § 3182.

      . Photocopies of the cancelled checks representing each of these transactions are attached to appellant’s original complaint.

      . With regard to Helen Hansel, it was alleged that the complaint failed to set forth a claim upon which relief could be granted because Helen was never a partner in the business. In appellant’s answer to the preliminary objections, he averred that Helen participated directly in the management of the partnerships with her sons and that she conspired with her sons to deprive the Robert Sr. estate of its interest in the partnerships.

      . The record also contains a notice of appeal to the Supreme Court of Pennsylvania from the orders of December 16, 1975 and September 8, 1976, dated September 20, 1976.

      . Act of December 19, 1975, P.L. 524, No. 155, § 1, 59 Pa.C.S. § 301, et seq.


author: BROSKY, Judge: MONTGOMERY, Judge,

text:
    446 A.2d 1300
    COMMONWEALTH of Pennsylvania v. Edward Joseph WALENTOSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 14, 1980.
    Filed June 18, 1982.

      James Ml Greenfield, Franklin, for appellant.
    Miles R. Lynn, Jr., Assistant District Attorney, Emlenton, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal follows appellant’s conviction on charges of theft and conspiracy to commit theft. Mr. Walentoski was tried before a jury in November, 1978. On appeal, he raises many issues, but basically he alleges that his trial counsel rendered him ineffective assistance and that the verdict is not supported by sufficient evidence. For the reasons that follow, we reverse and remand.

Mr. Walentoski is charged with having taken several items from a Sears warehouse with the assistance of a then Sears employee. That employee, a Mr. Myers, testified at the trial and admitted his participation in the theft of a dishwasher, hot water boiler, four tires, a floor jack, mechanics tools and a refrigerator. He said that he gave the items to Mr. Walentoski. Additional testimony was presented to show that the allegedly stolen goods were in fact missing from the warehouse. The jury convicted appellant of all charges, the grade of the offense depending on the value assigned to the goods by the jury.

We will first address Mr. Walentoski’s claim that his trial counsel erred in joining in a Petition for Extension of Time filed by the Commonwealth. Appellant contends that the error mandates that he now be discharged.

The complaint against appellant was filed on April 27, 1978; the 180 days within which Pa.R.Crim.P. 1100 mandates that trial is to commence expired on October 24, 1978. On October 19, 1978, the Commonwealth filed its petition. A hearing was set for October 30, but was not held because appellant’s counsel consented to the petition.

We will review the standard to be applied in assessing claims of ineffective assistance of counsel.

In Commonwealth v. Sullivan, 450 Pa. 273, 277, 299 A.2d 608, 610, cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973), our Supreme Court explained:

. .. [0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.” If a reasonable basis for counsel’s trial strategy exists, that decision is imputed to the appellant. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

The Commonwealth’s Petition for Extension of Time was a form petition. It alleged that the Commonwealth had exercised due diligence in bringing the case to trial, but did not aver facts in support of the contention. This mere assertion of due diligence does not justify the grant of an extension. See Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978); Commonwealth v. Schaszberger, 285 Pa.Super. 586, 428 A.2d 200 (1981). See also Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976); Commonwealth v. Delpiano, 290 Pa.Super. 510, 434 A.2d 1260 (1981) (Concurring Opinion of Brosky, J.). Cf. Commonwealth v. Myers, 259 Pa.Super. 196, 393 A.2d 785 (1978).

Appellant’s trial counsel joined in this deficient petition thereby relieving the Commonwealth of its burden of proof. If it were clear to us that the Commonwealth could not have met its burden, we would find counsel ineffective and discharge appellant. See Commonwealth v. Johnson, 265 Pa.Super. 27, 401 A.2d 783 (1979). However, we do not know why counsel joined in the petition. Perhaps he knew that the Commonwealth could met its burden. We do not have sufficient information to determine that counsel’s actions lacked any reasonable basis. Therefore, we will remand for an evidentiary hearing to determine if counsel rendered ineffective assistance in this regard. If the lower court finds that counsel was ineffective, appellant shall be discharged; otherwise, a new trial is to be held for reasons that follow later in this opinion.

Before turning to appellant’s request for new trial, we will comment briefly about his claim that he should be discharged because the verdict was not supported by sufficient evidence.

As our Supreme Court wrote in Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1112-13 (1981),

It is well settled that in passing upon a claim of insufficiency we must view the evidence in the light most favorable to the verdict winner. The evidence is sufficient if, accepting as true all the evidence and all reasonable inferences therefrom upon which, if believed, the jury could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that appellant is guilty of the crimes for which he was convicted. Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978). .
Moreover, it is the province of the trier of fact, who is free to believe all, part or none of the evidence, to pass upon the credibility of witnesses and the weight to be accorded the evidence. Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978). Finally, evidence may be sufficient to convict even though wholly circumstantial. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).

The Commonwealth presented the testimony of one who claimed to be an accomplice of Mr. Walentoski. That witness provided a detailed account of the alleged thefts. Although Mr. Myers was an admitted accomplice, the trial court correctly noted that his testimony could be sufficient basis for a guilty verdict. See Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978). Additionally, Sears employees testified as to the missing items. The jury was free to believe part, all or some of this testimony. They were free to draw the inference that the missing items had been stolen by appellant. We find no merit to the general claim of insufficiency raised by Mr. Walentoski.

Appellant has advanced several arguments in support of his contention that he is entitled to a new trial. Because we find merit to his claim that counsel rendered him ineffective assistance, we will address only that issue.

Appellant argues that his trial counsel should have objected to testimony by Mr. Myers that suggested that Mr. Walentoski had engaged in criminal conduct other than that for which he was being tried. No objection was made and therefore the question of whether the testimony was admissible is not before us. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Instead, we will examine the issue as to whether counsel’s failure to object resulted in ineffective assistance of counsel. On direct examination, Mr. Myers had been asked why he did not tell appellant that he had, in fact, informed a Sears investigator that appellant was involved in the theft. Mr. Myers replied,

Well, various times I had worked up there and he had been like talking to different people he knew, different places, you know and he could maybe blow you up or something, you know, and I think that made a lot of difference with there, what I said to him.

Instead of objecting to this testimony, appellant’s trial counsel continued this line of questioning during cross-examination, at which time the following colloquy took place:

Q. What’s this about blowing up? Explain that.
A. What do you mean?
Q. Just what I said.
A. Well, you know, like when you do something to somebody they could blow your car up or something when you go to start it up, just like the news the other day.
Q. That’s why you told him after the thirty-first that you didn’t say anything to anybody?
A. When he called me, that’s what I told him.
Q. O.K.

In Commonwealth v. Markle, 239 Pa.Super. 505, 361 A.2d 826 (1976), a Pennsylvania State Trooper was asked if a certain informant had as a result of his cooperation with the police, ever had any threats made upon his life. The witness answered that he had. The trial court sustained an objection to the question and answer and declined an offer of proof made by the Commonwealth. The court also gave curative instructions. Our court nonetheless found reversible error. We wrote:

In the instant case, the Commonwealth introduced testimony which could result in only a single inference: that appellant or someone under his control, had threatened the life of his principal accuser. If some other inference could result, the evidence would be totally irrelevant. In the interests of fairness, it must be presumed that the effect of this testimony was “to predispose the minds of the jurors to believe the accused guilty, and thus effectually .to strip him of the presumption of innocence.” Commonwealth v. Trowery, 211 Pa.Super. 171, 174, 235 A.2d 171, 172 (1967). We cannot assume that the jury, once having inferred that appellant had threatened to kill Hendricks, could strike this testimony from their minds and render an impartial verdict.

Id., 239 Pa.Superior Ct. at 516, 361 A.2d at 831.

We said that the subject evidence was “simply too prejudicial to be cured by instruction.” Although we are not prepared to say that instruction would not have cured the error in the present case; we can say that the evidence is such that counsel should have at least sought such an instruction.

While the witness did not state that he had been threatened, he certainly suggested to the jury that he had some reason to believe that appellant would have killed him had he known of Mr. Myers’ statements to the investigator.

Of course, evidence of threats is admissible to prove motive, intent, plan or design. See Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970). However, the testimony did not aid any such finding.

Instead, it suggested, without any proof, that the witness had reason to fear for his life. In Merkle, supra, we said that the trial court should have accepted the Commonwealth’s offer of proof because, “In the present context, extremely prejudicial testimony was left for the jury’s consideration without any proof whatsoever as to its truth.” Id. 239 Pa.Super. at 516, 361 A.2d at 831.

The potential prejudice to appellant from this testimony was such that counsel should have objected to it during direct examination and certainly should not have pursued it during cross. We believe that his assistance was ineffective in this regard.

Having found that appellant is entitled to a new trial based on the above-discussed instance, we need not discuss the remaining questions posed by appellant.

The order is vacated and the casé remanded for an evidentiary hearing on the claim that counsel rendered ineffective assistance in consenting to the Rule 1100 petition. If the lower court finds as to the issue of Rule 1100 that counsel was ineffective, then appellant is to be discharged.

If counsel is found to have rendered effective assistance as to the Rule 1100 matter, appellant is, of course, not to be discharged. However, appellant is then to have a new trial, since we have ourselves found counsel to have been ineffective during the course of the first trial for reasons other than Rule 1100.

MONTGOMERY, J., files concurring and dissenting opinion.

MONTGOMERY, Judge,

concurring and dissenting:

I concur in the majority’s disposition of the Pa.R.Crim.P. 1100 issue and the insufficiency of the evidence claim, but respectfully dissent as to the grant of a new trial.

The majority determined that trial counsel’s failure to object to the testimony of the only witness who could connect appellant to the crimes constituted ineffective assistance. The questioned testimony purportedly suggested that appellant had engaged in criminal conduct other than that for which he was being tried.

I do not disagree with the majority’s interpretation of the law as it relates to this issue; but I do disagree with its application. When the exerpted testimony is read in light of the entire record, it is not harmfully prejudicial. • The challenged statement did not tend to show prior criminal activity, but addressed the question of the accomplice’s credibility and applied to the instant criminal conduct. His brief allusion to fear of reprisal on direct and cross-examination without more is insufficient for a finding of harmful prejudice. As a result, I would find that counsel was not ineffective for failing to object to the questioned testimony as the underlying claim is meritless. Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979). His particular chosen course, therefore, had a reasonable basis designed to effectuate appellant’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

      . Because this is the first time that he has been represented by counsel other than trial counsel, appellant may first raise this issue on appeal. See Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

      . Related to this argument, is appellant’s contention that the Commonwealth failed to present evidence of the value of the missing items, which we address parenthetically.
      The Commonwealth has the burden of producing evidence of value which is used to determine the grade of offense. Commonwealth v. Stauffer, 239 Pa.Super. 463, 361 A.2d 383 (1976); Commonwealth v. Butch, 238 Pa.Super. 524, 361 A.2d 380 (1976); Commonwealth v. Walker, 277 Pa.Super. 209, 419 A.2d 735 (1980); 18 Pa.C.S. § 3903.
      The parties agree that evidence of value was introduced as to the boiler. They also agree that no such evidence was presented as to the missing refrigerator. In the absence of such proof, we must presume that the value of the refrigerator was less than $50. See Commonwealth v. Stauffer, supra. Theft of it should then have been graded as a misdemeanor of the third degree. However, in view of our disposition of this case, we need not remand for resentencing.
      We would add that we find no error as to the other items. This testimony as to the “order price” of each of them provided evidence of market value. The jury could infer that the missing items, the “order prices” of which were provided, were in fact the stolen items.

      . We note that late in the trial during the cross-examination of Mr. Walentoski, he was asked if he had ever told anybody that he had the influence to “put the fix on somebody.” An objection was sustained and a curative instruction was given. We do not believe, however, that the latter instruction served to cure any error made earlier in the trial.
      First, the trial judge made no reference to the earlier testimony. Also, immediately before the objection was sustained, the prosecutor stated about the question, “That’s in the testimony.” The jury could have believed that the objection'was sustained because testimony had already been given as to that point. Certainly, the jury could have been confused as to the effect of the instruction.


text:
    May 7, 1982.
    446 A.2d 667
    Bricen v. Murrays Ford, Appellant.
    Argued October 27, 1981.
    Anthony S. Guido, for appellant; Norbert J. Pontzer, for appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   Order affirmed.


text:
    446 A.2d 668
    Commonwealth v. Calicat a/k/a Calicut, Appellant.
    Submitted June 13, 1980.
    Ronald F. O’Driscoll, Jr., Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   The order entered November 10, 1977, is affirmed on the comprehensive opinion of the Honorable Frederick B. Smillie.


text:
    446 A.2d 668
    Commonwealth v. Fish, Appellant.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.
    Argued January 26, 1982.
    Cyril Daniel Higgins, Assistant Public Defender, for appellant; James F. Marsh, District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 668
    Commonwealth v. Frazier, Appellant.
    Submitted June 22, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and DiSALLE, JJ.
   Judgment of sentence affirmed.

DiSALLE, J., did not participate in the consideration or decision of this case.


text:
    446 A.2d 669
    Commonwealth v. Gregg, Appellant.
    Submitted March 8, 1982.
    Norman Ackerman, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    446 A.2d 669
    Commonwealth v. Henderson, Appellant.
    Petition for Allowance of Appeal Denied Dec. 1, 1982.
    Argued March 10, 1982.
    John F. Pyfer, for appellant; Edward F. Browne, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment of sentence is affirmed.


text:
    446 A.2d 669
    Commonwealth v. Hoff, Appellant.
    Argued November 18, 1981.
    Anthony J. Rosini, for appellant; Thomas E. Boop, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 669
    Commonwealth v. Jefferson, etc., Appellant.

      Submitted September 14, 1981.
    Gary Fronheiser, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and WATKINS, JJ.
   Judgment of sentence affirmed.

DiSALLE, J., did not participate in the consideration or decision in this case.


text:
    446 A.2d 670
    Commonwealth v. Jones, Appellant.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.
    Submitted March 9, 1982.
    Charles A. Cunningham, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 670
    Commonwealth v. Lantzy, Appellant.
    Petition for Allowance of Appeal Denied Sept. 13, 1982.

      Argued October 26, 1981.
    John Lantzy, submitted a brief on behalf of appellant, in propria persona; William G. Martin, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   Order Affirmed;


text:
    446 A.2d 670
    Commonwealth v. Longo, Appellant.
    Argued September 9,1980.
    Robert Sullivan, Jr., for appellant; William L. Thurston, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   Judgments of sentence affirmed.


text:
    446 A.2d 671
    Commonwealth v. Marquess, Appellant.
    Petition for Allowance of Appeal Denied Sept. 13, 1982.

      Argued January 25, 1982.
    Sara Webster, Assistant Public Defender, for appellant; Stephen B. Harris, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 671
    Commonwealth v. Nolan a/k/a Rafferty, Appellant.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.
    Submitted March 10, 1982.
    Joseph B. Vanwyk, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    446 A.2d 671
    Commonwealth v. Peterson, Appellant.
    Submitted March 17, 1982.
    Robert G. Kochems, for appellant; Samuel J. Orr, District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 671
    Commonwealth v. Pope, Appellant.
    Petition for Allowance of Appeal Denied Sept. 13, 1982.
    Submitted June 2,1981.
    Anthony P. Baratta, for appellant; Gaele McLaughlin Bart-hold, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   The judgment of sentence is affirmed on the comprehensive opinion by Judge James D. McCrudden of the Court of Common Pleas of Philadelphia County.


text:
    446 A.2d 672
    Commonwealth v. Smith, Appellant.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.

      Submitted February 23, 1981.
    David R. Black, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   The judgment of sentence is affirmed.

SPAETH, J., concurred in the result.


text:
    446 A.2d 672
    Commonwealth v. Thompson, Appellant.
    Submitted January 26, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 672
    Commonwealth v. Ziomek, Appellant.
    Petition for Allowance of Appeal Denied Aug. 2, 1982.

      Argued January 6, 1982.
    Malcolm Mark Limongelli, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 673
    Corbett v. Corbett, Appellant.
    Argued November 9,1981.
    Howard Gilfillan, for appellant; Peter Molinaro, Jr:, for appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   The order is affirmed.

BECK, J., filed a memorandum dissenting opinion.


text:
    446 A.2d 673
    Cross, Appellants v. Berry. Rossman v. Cross, Jr., Appellants.

      Argued May 13, 1981.
    Richard A. Gahr, for appellants; Merritt E. McKnight, did not file a brief on behalf of appellees.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   Judgments affirmed.

MONTEMURO, J., concurred in the result.


text:
    446 A.2d 673
    Fascione, et al., Appellants v. Fascione. Fascione, et al. v. Fascione, Appellant.
    Argued March 20, 1980.
    Arthur L. Jenkins, Jr., for appellants (at No. 1800) and for appellees (at No. 1897); Jack A. Rounick, for appellant (at No. 1897) and for appellee (at No. 1800).
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   The order entered Aug. 17, 1979 is affirmed on the comprehensive opinion of the Honorable Milton O. Moss.


text:
    446 A.2d 674
    Guzman, Appellant v. Famco Machine Co.

      Submitted June 1, 1981.
    Anthony B. Quinn, for appellant; John J. Marquess, for appellee;!
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   Order affirmed.


text:
    446 A.2d 674
    Harper, Appellant v. White.
    Argued May 13, 1981.
    Robert S. Gordon, for appellant; James G. Haggerty, for appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   Order opening default judgment affirmed.


text:
    446 A.2d 674
    In The Matter Of Carlene Sherwood, a minor. Appeal of Barbara Sherwood.
    Argued March 20, 1980.
    Robert Sarno, for appellant; Gerald W. Seevers, for appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Order affirmed.


text:
    446 A.2d 674
    Pearlstine-Salkin Associates v. Rubin, Appellant.
    Argued February 1, 1982.
    Michael J. O’Donoghue, for appellant; Edward J. Hardiman and S. Gerald Corso, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Order affirmed.


text:
    446 A.2d 675
    Sol Salins, Inc., Appellant v. United Air Lines.
    Argued September 10, 1981.
    Malcolm H. Waldron, Jr., for appellant; John P. Mason, for appellee.
    Before HESTER, McEWEN and SHERTZ, JJ.
   Order affirmed.

SHERTZ, J., did not participate in the consideration or decision of this case.


text:
    446 A.2d 675
    Torcaso, Appellant v. Kay, et ux.
    Argued October 14, 1981.
    Rodney Permigiani, for appellant; Michael Burns, submitted a brief on behalf of appellees.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   Order affirmed.


text:
    446 A.2d 675
    Volvo of Amercia Corp. v. Reilly, Appellant.
    Argued January 12,1981.
    Harry Stump, for appellant; Samuel A. Moore, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   The judgment of the court is affirmed.

SHERTZ, J., did not participate in the consideration or decision of this case.


text:
    446 A.2d 675
    Welch v. Volosin, Appellant.

      Argued May 22, 1981.
    Ray N. Lochner, for appellant; Saul Davis, for appellee.
    Before CERCONE, P. J., MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed.


text:
    446 A.2d 676
    White, Jr., Appellant v. Aetna Casualty & Surety Co., Pennsylvania Trial Lawyers Association (Participating Party) Pennsylvania Defense Institute (Participating Party).
    Petition for Allowance of Appeal Denied Jan. 4,1983.
    Argued September 9, 1980.
    Edwin P. Smith, for appellant; David F. Kaliner, for Aetna, appellee; Richard C. Angino, for Pennsylvania Trial Lawyers, participating party; Charles Roessing, for Pennsylvania Defense, participating party.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   Order affirmed.


text:
    May 14, 1982.
    446 A.2d 676
    Cahill v. Blair, Appellant.
    Argued November 13, 1980.
    Maurice A. Nernberg, for appellant; James D. Belliveau, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    446 A.2d 676
    Commonwealth v. Beistline, Appellant.
    Submitted June 13, 1980.
    Joseph W. Mullin, Public Defender, for appellant; Stewart L. Kurtz, District Attorney, for Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       At the time this case was before the Court, the Honorable Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania was sitting by designation.

   Judgment of sentence affirmed.


text:
    446 A.2d 677
    Commonwealth v. Boyer, Appellant.
    Submitted November 16,1981.
    Keith L. Kilgore, for appellant; Robert W. Freeman, Assistant District Attorney, for Commonwealth, appellee.

      Before CERCONE, P. J., and McEWEN and HOFFMAN, JJ.
   The order of the lower court is affirmed.


text:
    446 A.2d 677
    Commonwealth v. Bush, Appellant.
    Submitted January 18, 1982.
    Jimmie Moore, for appellant; Ann Carol Lebowitz, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Judgment of sentence of March 10, 1981 is affirmed.


text:
    446 A.2d 677
    Commonwealth v. Clemens, Appellant.
    Submitted April 21, 1981.
    Thomas Moribondo, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order affirmed.


text:
    446 A.2d 677
    Commonwealth v. Davis, Appellant.
    Argued October 15,1981.
    Robert J. Tesone, for appellant; Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 678
    Commonwealth v. Dennis, Appellant.
    Submitted June 13, 1980.
    Peter A. Levin, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY,.HOFFMAN and CIRILLO, JJ.

       At the time this case was before the Court, the Honorable Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania was sitting by designation.

   Judgment of sentence affirmed.


text:
    446 A.2d 678
    Commonwealth v. Filer, Appellant.
    Petition for Allowance of Appeal Denied Oct. 4, 1982.
    Submitted February 3, 1982.
    Philip Andrew Gasteier, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Order affirmed.


text:
    446 A.2d 678
    Commonwealth v. Grady, Appellant.
    Petition for Allowance of Appeal Denied Sept. 17, 1982.
    Argued September 8, 1980.
    Abraham J. Golden, for appellant; Andrew B. Cohn, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 679
    Commonwealth v. Gross, Appellant. Lancaster Cty. Tax Collection Bur., participating party.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.
    Argued February 3, 1982.
    Daniel M. Gross, appellant, in propria persona; David E. Wagenseller, for Lancaster County Tax Collection Bureau, participating party-
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Order affirmed.


text:
    446 A.2d 679
    Commonwealth v. Heath, Appellant.
    Submitted November 17, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and McEWEN and HOFFMAN, JJ.
   The order of the lower court is affirmed.


text:
    446 A.2d 679
    Commonwealth v. Jennings, Appellant.
    Submitted May 22, 1981.
    David G. Metinko, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTGOMERY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 679
    Commonwealth v. Keller, Appellant.
    Submitted November 30, 1981.
    John Joseph Moran, Assistant Public Defender, for appellant;' Nathaniel W. Boyd, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    446 A.2d 680
    Commonwealth v. Lane, Appellant.
    Submitted March 3, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WICKERSHAM and BRO-SKY, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 680
    Commonwealth v. Leach, Appellant.
    Submitted March 22,1982.
    Allen E. Hench, for appellant; Charles J. Rehkamp, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 680
    Commonwealth v. Mace, Appellant.
    Petition for Allowance of Appeal Denied Aug. 13, 1982.
    Argued June 24, 1981.
    Samuel K. Gates, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, JOHNSON and SHERTZ, JJ.
   Judgment of sentence affirmed.

SHERTZ, J., did not participate in the consideration or decision of this case.


text:
    446 A.2d 681
    Commonwealth v. Melendez, etc., Appellant.
    Submitted March 21, 1980.
    Robert L. Moore, Assistant Public Defender, for appellant; J. Michael Morrissey, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and CAVANAUGH and WATKINS, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    446 A.2d 681
    Commonwealth v. Nance, Appellant.
    Submitted October 14, 1981.
    Jay H. Spiegel, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   The judgment of sentence is affirmed.


text:
    446 A.2d 681
    Commonwealth v. Prince, Jr., Appellant.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.
    Submitted February 3, 1982.
    Joseph Mistrano, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Order affirmed.


text:
    446 A.2d 681
    Commonwealth v. Raffensberger, Jr., Appellant.
    Petition for Allowance of Appeal Denied Sept. 2, 1982.
    Submitted January 6, 1982. Thomas
    G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Judgments of sentence affirmed.


text:
    446 A.2d 682
    Commonwealth v. Ritchie, Appellant.
    Submitted March 21, 1980.
    Justin K. McCarthy, for appellant; Domenic Sbrocchi, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and CAVANAUGH and WATKINS, JJ.
   The order of the lower court is affirmed.


text:
    446 A.2d 682
    Commonwealth v. Rogers, Appellant.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.
    Submitted March 21, 1980.
    Elaine DeMasse, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.

SPAETH, J., concurred in the result.


text:
    446 A.2d 682
    Commonwealth v. Smith, Appellant.
    Submitted May 27, 1981.
    Barry H. Oxenberg, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and McEWEN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 683
    Commonwealth v. Smith, Jr., Appellant.
    Petition for Allowance of Appeal Denied Sept. 10, 1982.
    Submitted February 2, 1982.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 683
    Commonwealth v. Stankiewicz, Appellant.
    Petition for Allowance of Appeal Denied Sept. 15, 1982.
    Argued May 11, 1981.
    Michael R. Muth, for appellant; James P. Gregor, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der YOORT, JJ.
   Judgment of sentence affirmed.

MONTEMURO, J., concurred in the result.


text:
    446 A.2d 683
    Commonwealth v. Tucker, Appellant.
    Submitted March 24, 1981.
    John J. Moran, II, Assistant Public Defender, for appellant; Richard H. Horn, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WIEAND and LIPEZ, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    446 A.2d 683
    Commonwealth v. Weaver, Appellant.
    Submitted March 21, 1980.
    Daniel McGee, Assistant Public Defender, for appellant; David E. Grine, District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   The judgment of sentence entered on July 5, 1979 is affirmed on the comprehensive opinion of the Honorable Richard M. Sharp.


text:
    446 A.2d 684
    Commonwealth v. Weaver, Appellant.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.

      Argued March 2, 1982.
    Mary Bell Hammerman, for appellant; Gail Thackery, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 684
    Commonwealth v. Zazo, Appellant.
    Petition for Allowance of Appeal Denied Sept. 17, 1982.
    Submitted November 4, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   The judgment of sentence is affirmed.


text:
    446 A.2d 684
    Handler et al., Appellants v. Abrams et al. Appeal of Edna Abrams.

      Argued March 22,1982.
    John J. Krafsig, for Handler, appellants (at Nos. 28 and 86) and appellees (at Nos. 29, 75 and 85); Ronald Katzman, for Abrams, appellant (at Nos. 29, 75 and 85) and appellee (at Nos. 28 and 86); Jan P. Paden, for Abrams & Sons, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Appeals Nos. 28 and 29 are quashed. In the appeals at No. 75, No. 85 and No. 86 the judgments are affirmed.


text:
    446 A.2d 684
    Horowitz, Appellant v. Horowitz.
    Argued March 15, 1982.
    Richard S. Levine, for appellant; Samuel F. Rizzo, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the lower court is hereby affirmed.


text:
    446 A.2d 685
    Kuhns, Appellant v. Hitlan.
    Argued November 13, 1980.
    Elmer Beatty, for appellant; David L. Robinson, for appellee.

      Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   The judgment is affirmed on the comprehensive opinion of the late Honorable Earl S. Keim.


text:
    446 A.2d 685
    Lashner v. Redevelopment Authority of Philadelphia.
    Argued February 3, 1982.
    Ronald Harvey Surkin, for appellant; Timothy J. Savage, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Judgment affirmed.


text:
    May 21, 1982.
    446 A.2d 685
    Blatchley, Appellant v. Marki & Benvenuto.
    Argued September 28,1981.
    Angelo Arduini, for appellant; John R. Gavin, for appellees.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Order and judgment affirmed.


text:
    446 A.2d 685
    Commonwealth v. Adyseh, Appellant.
    Petition for Allowance of Appeal Denied Jan. 17; 1983.
    Argued October 27, 1981.
    Richard L. Neff, for appellant;
    John Lee Brown, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   The judgment of sentence is affirmed.


text:
    446 A.2d 686
    Commonwealth v. Allen, Appellant.
    Submitted February 1, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, • ROWLEY ■ and McEWEN, JJ.
   The judgment of sentence is affirmed.


text:
    446 A.2d 686
    Commonwealth v. Bacon, Jr., Appellant.

      Submitted September 2, 1981.
    Joseph Budicak, for appellant; Edward Tocci, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   Order affirmed.


text:
    446 A.2d 686
    Commonwealth v. Brewington, Appellant.
    Petition for Allowance of Appeal Denied Aug. 23, 1982.
    Argued September 9, 1981.
    Kalvin Kahn, for appellant; Maureen Brennan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and SHERTZ, JJ.
   Judgment of sentence affirmed.

SHERTZ, J., did not participate in the consideration or decision of this case.


text:
    446 A.2d 687
    Commonwealth v. Cooper, Jr., Appellant.

      Argued September 29, 1981.
    Daniel J. Brabender, Jr., for appellant; Michael R. Cauley, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   The order and judgment of sentence affirmed on the comprehensive opinion of Honorable Fred P. Anthony, Court of Common Pleas, Erie County.


text:
    446 A.2d 687
    Commonwealth v. John Doe a/k/a Eddy a/k/a Leisey, Appellant.
    Submitted June 1, 1981.
    Lynn Erickson Ober, for appellant; Charles Guthrie, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 687
    Commonwealth v. Fauntleroy, Appellant.

      Submitted September 9, 1981.
    Mark B. Frost, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 687
    Commonwealth v. Favors, Appellant.
    Submitted November 4, 1981.
    Elaine De-Masse, Assistant Public Defender, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 688
    Commonwealth v. Fisher, Appellant.

      Submitted March 31, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and HESTER and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 688
    Commonwealth v. Gatewood, Appellant.
    Submitted March 18, 1981.
    Paulette J. Balogh, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee. McGlaughlin, Assistant District Attorney, for Commonwealth, appellee.

      Before PRICE, BROSKY and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 688
    Commonwealth v. Gelormo, Appellant.

      Before SPAETH, BECK and LIPEZ, JJ.
   The judgment of sentence is affirmed.


text:
    446 A.2d 689
    Commonwealth v. Graham, Appellant.
    Submitted November 6, 1981.
    Harris R. Rosen, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   The order is affirmed.


text:
    446 A.2d 689
    Commonwealth v. Granberry, Appellant.
    Submitted October 5,1981.
    Robert J. Breslin, Jr., for appellant; Frank T. Hazel, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   Judgment of sentence affirmed on the perceptive and comprehensive opinion of the learned and distinguished Delaware County Common Pleas Court Judge Melvin G. Levy.


text:
    446 A.2d 689
    Commonwealth v. Guy, Appellant.
    Submitted February 3, 1981.
    David R. Eshelman, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Order affirmed on the comprehensive opinion of Wesner, J.


text:
    446 A.2d 689
    Commonwealth v. Hailstock, Appellant.
    Submitted April 16, 1980.
    Norman A. Levine, for appellant; Howard C. Klebe, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   The judgment of sentence is affirmed on the comprehensive opinion of the Honorable John F. Henderson.


text:
    446 A.2d 690
    Commonwealth v. Harrold, Appellant.
    Submitted April 8, 1981.
    Daniel H. Greene, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.

SPAETH, J., concurred in the result.


text:
    446 A.2d 690
    Commonwealth v. Hart, Appellant.
    Submitted November 6, 1981.
    Richard P. Haaz, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    446 A.2d 690
    Commonwealth v. Hartman, Appellant.
    Submitted November 18, 1981.
    Lawrence J. Hracho, for appellant; George Yatron, District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.


text:
    446 A.2d 691
    Commonwealth v. Harvey, Appellant.
    Submitted April 20, 1981.
    Joshua M. Briskin, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 691
    Commonwealth, Appellant v. Kugler.
    Argued November 17, 1981.
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellant; Henry W. Kugler, appellee, in propria persona.
    Before CERCONE, P. J., and McEWEN and HOFFMAN, JJ.
   Order affirmed.


text:
    446 A.2d 691
    Commonwealth v. Lambert, Appellant.
    Submitted March 31, 1981.
    Robert David Bacher, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and HESTER and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 691
    Commonwealth v. Lark, Appellant.

      Submitted May 11, 1981.
    Francis J. Moran, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 692
    Commonwealth v. Luciano, Appellant.
    Submitted June 3, 1981.
    Philip D. Lauer, for appellant; Donald Corriere, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 692
    Commonwealth v. Merkel a/k/a Walker, Appellant. Commonwealth v. Caruso, Appellant.
    Petition for Allowance of Appeal Denied Nov. 19,1982.

      Argued June 23, 1981.
    William R. Bernhart, for appellant (at No. 475); Robert L. Van Hoove, for appellant (at No. 498); Charles M. Guthrie, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and DiSALLE, JJ.
   Judgments of sentence affirmed.

DiSALLE, J., did not participate in the consideration or decision of this case.


text:
    446 A.2d 692
    Commonwealth v. Mileshosky, Appellant.
    Argued March 30, 1981.
    Malcolm W. Berkowitz, for appellant; Ellen Mattleman, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and HESTER and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 693
    Commonwealth v. Radogna, Appellant.
    Submitted March 3, 1982.
    Thomas S. McCready, for appellant; Richard W. Webb, District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 693
    Commonwealth v. Shivers, Appellant.
    Submitted April 20, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 693
    Commonwealth v. Sicher, Appellant.
    Petition for Allowance of Appeal Denied Sept. 7, 1982.

      Argued April 20, 1981.
    W. F. Steigerwalt, for appellant; Richard R. Tomsho, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order affirmed on the opinion of Judge Davison of the court below.


text:
    446 A.2d 694
    Commonwealth v. Thomas, Appellant.
    Submitted March 8, 1982.
    David Zwanetz, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 694
    Commonwealth v. Walls, Appellant.

      Submitted March 31, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and HESTER and JOHNSON, JJ.
   Judgment of sentence affirmed.

CERCONE, P. J., concurred in the result.


text:
    446 A.2d 694
    Commonwealth ex rel. Dunkelberger v. Wieder. Appeal of Margaret Dunkelberger a/k/a Margaret Wieder.
    Argued March 8,1982.
    James M. Bucci, for appellant; John C. Carlson, for appellee.
    Before CAVANAUGH, WICKERSHAM and CIRILLO, JJ.
   Order affirmed.


text:
    446 A.2d 694
    Commonwealth ex rel. Molnar v. Wallenstein, etc. Appeal of Joseph Molnar.

      Submitted November 18,1981.
    Martha Sperling, Assistant Public Defender, for appellant;
    Michael Kane, District Attorney, for appellees.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.


text:
    446 A.2d 695
    Fiorini v. Hahn Furniture Co. et al., Appellants.
    Submitted September 30, 1981.
    John S. Sherry, for appellant; Leonard A. DeJulio, for Fiorini, appellee; Robert A. Arcovio, for Centurion Eastern Division of Rosalco, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Affirmed.