text:
    452 A.2d 31
    Commonwealth v. Mell, Appellant.
    Submitted May 10, 1982.

      William F. Ochs, Jr., Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    452 A.2d 32
    Commonwealth, Appellant v. Mueller.
    Submitted February 24, 1982.
    Ray Frank Gricar, Assistant District Attorney, for Commonwealth, appellant; Dennis C. Pfannenschmidt, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Order affirmed.


text:
    452 A.2d 32
    Commonwealth v. Rios, Appellant.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Submitted December 15, 1981.
    Carol K. McGinley, Public Defender, for appellant; William H. Platt, District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The judgment of sentence is affirmed.


text:
    452 A.2d 32
    Commonwealth v. St. Clair, Appellant.
    Submitted February 18, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 33
    Commonwealth v. Talley, Appellant.
    Submitted December 14, 1981.
    John J. Poserina, Jr., for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Albert S. Sabo is affirmed.


text:
    452 A.2d 33
    Commonwealth v. Trader, Appellant.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.
    Submitted April 7, 1982. Robert
    T. Gownley, Jr., Assistant Public Defender, for appellant; Ernest D. Preate, Sr., District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 33
    Commonwealth v. Weichey, Jr., Appellant.
    Petition for Allowance of Appeal Denied Feb. 1, 1983.

      Argued June 17, 1982.
    Samuel J. Reich, for appellant; David A. Hepting, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Affirmed.


text:
    452 A.2d 33
    Commonwealth v. Zlobik, Appellant.
    Submitted February 24, 1982.
    Joseph F. Sklarosky, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The judgment of sentence is hereby affirmed.


text:
    452 A.2d 556
    First Penna. Bank, N.A. v. Elliott, Appellants.
    Reargument Denied Dec. 10, 1982.
    Petition for Allowance of Appeal Denied Jan. 20, 1982.

      Argued September 10, 1981.
    Steven E. Angstreich, for appellants; John A. Van Luvanee, for appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    452 A.2d 34
    Herren, Appellants v. Bucher, et al.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Submitted June 22, 1981.
    Lester H. Herren, appellant, in propria persona; Shaubut C. Walz, for appellees.
    Before PRICE, BECK and JOHNSON, JJ.
   Affirmed.


text:
    452 A.2d 34
    Hoffman, et ux., Appellants v. Dobson.
    Argued April 13, 1982.
    John Wesley Jordan, IV, for appellants; Douglas E. Weinrich, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Affirmed.

HESTER, J., filed a memorandum dissenting statement.


text:
    452 A.2d 34
    In re Hudson. Appeal of Clara I. Carl and Barbara Ann Hastings.
    Argued May 24, 1982. C.
    Wherry, for appellant; Joseph A. Palmer, for appellee; James A. Burgess, Jr., for Klenger, participating party.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    452 A.2d 556
    McConeghy, Appellant v. Lipschutz, et al.
    Reargument Denied Dec. 7, 1982.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Argued June 12, 1979.
    Harris T. Bock, for appellant; Richard K. Masterson, for appellees.
    Before SPAETH, STRANAHAN and SUGERMAN JJ.

      President Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge Leonard Sugerirían, of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.

   The judgment of the court is affirmed.


text:
    452 A.2d 34
    McElroy, Appellant v. Herr and Havrilla.
    Argued December 8, 1981.
    Daniel H. Shertzer, for appellant; S. R. Zimmerman, III, for Herr, appellee; Richard A. Katz, for Havrilla, appellee.
    Before CAVANAUGH, BECK and McEWEN, JJ.
   The judgment of the learned Lancaster County Common Pleas Court Judge Wilson Bucher is affirmed.


text:
    452 A.2d 35
    Pringle, Appellants v. Marozzi, et al.
    Argued February 10, 1982.
    John J. Morgan, for appellant; John Wesley Jordan, for appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Order affirmed.


text:
    452 A.2d 35
    Reynolds v. Duck, Appellant.

      Argued December 2, 1981.
    Lawrence John Neary, for appellant; Samuel E. Teeter, for appellee.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    452 A.2d 35
    Silver Springs v. Intercoast, et al. v. Snyder. Appeal of the Kimco Corporation. Appeal of Intercoast of York, Inc.
    Argued September 8, 1980.
    Rees Griffiths, for appellants; David E. Lehman, for Silver Springs, appellee; James K. Thomas, II, for Snyder, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    452 A.2d 36
    Smith, Appellant v. Southern Railway Company.
    Petition for Allowance of Appeal Denied May 10, 1983.

      Argued February 23, 1982.
    Allen L. Feingold, for appellant; Richard L. Goerwitz, for appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The order of the court is affirmed.


text:
    452 A.2d 36
    Thompson, Appellant v. Sun Company, Inc.
    Argued October 5, 1981.
    Theodore A. Schwartz, for appellant; Barry Simon, for appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   Order affirmed.

McEWEN, J., concurred in the result.


text:
    452 A.2d 36
    Wesner v. Wesner, Appellant.
    Submitted May 12, 1982.
    Gary R. Block, for appellant; Ralph W. Kent, for appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Affirmed.


author: PER CURIAM:

text:
    451 A.2d 1360
    COMMONWEALTH of Pennsylvania v. Mark TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 2, 1981.
    Filed Sept. 24, 1982.
    Reinstated Appeal Denied Nov. 22, 1982.

      Stephen A. Seidel, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   PER CURIAM:

This appeal comes before us following the lower court’s denial of relief pursuant to the Post-Conviction Hearing Act (PCHA). This appeal has been submitted on briefs without oral argument. Appellant’s brief fails to conform with numerous appellate rules, and because the deviation is substantial, we find our ability to conduct meaningful appellate review severely impaired. Given the inadequacy of the appellant’s brief we have no recourse and must quash the appeal without reaching the merits.

The inadequate aspects of appellant’s brief are not mere matters of form or taste, rather they are the complete absence of those material sections of the brief which facilitate appellate review. Essentially, the brief consists of a three page hodgepodge of facts and argument which is scantily augmented by the citation of authority. The entire content of the brief is contained under the heading “Brief for Appellant.” There are no other headings or sub-headings.

The Rules of Appellate Procedure enumerate the requisites of a proper brief before this court. Rule 2111 sets forth generally the matters which the brief shall contain, and Rules 2114 through 2119 reiterate and expand upon the general mandate of Rule 2111. The brief submitted by the appellant fails to meet the requirements of the appellate rules in several material respects, including: failure to include a Statement of Jurisdiction (violation of Rule 2114), failure to include a copy of the Order in Question (violation of Rule 2115), failure to include a Statement of the Questions Involved (violation of Rule 2116), failure to include a Statement of the Case (violation of Rule 2117), and failure to include a Summary of the Argument (violation of Rule 2118).

The court will not meticulously examine each brief which comes before us with the express intent of suppressing those which contain minor defects or omissions which are correctable through less drastic means. However, where gross deviations from the appellate rules, which substantially impair our ability to exercise the power of review, are present, we will not hesitate to suppress the party’s brief and quash the appeal. As stated in Pa.R.A.P. 2101:

Briefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief or reproduced record of the appellant, and are substantial, the appeal or other matter may be quashed or dismissed.

See also Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982); Commonwealth v. Miller, 203 Pa.Super. 511, 424 A.2d 531 (1981); Commonwealth v. Holcomb, 261 Pa.Super. 532, 396 A.2d 29 (1978). The appellant’s brief herein is so defective as to preclude effective appellate review.

The appeal is quashed.

      . Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed § 2(a) [1397] of Act 1978, April 28, P.L. 202, No. 53, to take effect June 27, 1980, reinstated Act of June 26, 1980, No. 41 §. 1 to June 27, 1982.

      . Rule 2111. Brief of the Appellant
      (а) General rule. The brief of the appellant, except as otherwise prescribed by these rules, shall consist of the following matters, separately and distinctly entitled and in the following order:
      (1) Statement of jurisdiction.
      (2) Order or other determination in question.
      (3) Statement of the questions involved.
      (4) Statement of the case.
      (5) Summary of argument.
      (б) Argument for appellant.
      (7) A short conclusion stating the precise relief sought.
      (8) The opinions and pleadings specified in Subdivisions (b) and (c) of this rule.

      . The content of these rules will not be set forth. For complete text see generally Pa.R.A.P., Rules 2101 et seq., 42 Pa.C.S.A.


author: SPAETH, Judge:

text:
    451 A.2d 1362
    John A. COLLINS and Virginia Collins, his wife v. WALTER C. BEST, INC., a corporation, Pennsylvania Glass Sand Corporation, a corporation, Emerald Industrial Supply Company, a corporation, Millwood Sand Company, a corporation, and Summitt Silican Sand Company, a corporation v. BUCYRUS-ERIE COMPANY and Textron Inc., Pittron Division. Appeal of PENNSYLVANIA GLASS SAND CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed Oct. 22, 1982.
    Petition for Allowance of Appeal Denied Oct. 7, 1983.

      James F. Andrews, Jr., Pittsburgh, for appellant.
    Fred C. Trenor, Pittsburgh, for Bucyrus-Erie, appellee.
    James F. Manley, Pittsburgh, for Textron, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from an order entering summary judgment. Plaintiff-husband suffers from silicosis. He and his wife have sued the companies that manufactured or supplied the products exposure to which caused his silicosis. The question is whether those companies may join plaintiff-husband’s employers as additional defendants. The lower court held that the Act of December 5,1974, P.L. 782, No. 263 § 6, 77 P.S. § 481, precludes joinder. We agree, and therefore affirm.

Plaintiff-husband worked in a steel foundry in Glassport, Pennsylvania, from April 1942 to July 1943, and after military service, from March 1946 until September 19, 1975, when he had to retire from work because of a disabling lung condition. Sometime later, either in October 1975, R. 13b-14b, or December 1975, R. 44b, he learned that his condition was silicosis caused by his exposure to silica and silicon dioxide in the foundry. On October 25, 1977, plaintiffs— husband and wife—filed a complaint in trespass and as-sumpsit against appellant and several other companies that had manufactured or supplied the products exposure to which caused his silicosis. Appellant filed a complaint to join appellees as additional defendants. Appellee Bucyrus-Erie Company is the current owner of the Glassport foundry, having purchased the foundry from appellee Textron, Inc., Pittron Division, in October 1974. Appellant’s complaint alleged that as plaintiff-husband’s employers, appel-lees were either solely liable, or to the extent that appellant was liable, liable for contribution or indemnity. After some intervening pleadings, appellees moved for summary judgment on the ground that the Act of December 5, 1974, P.L. 782, No. 263 § 6, 77 P.S. § 481, precluded their joinder. On June 22, 1981, the lower court granted their motions.

The Act of December 5, 1974, supra, 77 P.S. § 481, provides that an employee receiving workmen’s compensation benefits from his employer may sue a third party for causing his injury, but his employer “shall not be liable to [the] third party for damages, contributions, or indemnity .. .. ” Here, plaintiff-husband is receiving workmen’s compensation benefits from appellee Bucyrus-Erie’s carrier. Appellant acknowledges that if the Act applies, it precludes suit against appellees for damages, contribution, or indemnity, and that summary judgment in favor of appellees was therefore proper. Appellant argues, however, that the Act does not apply. The effective date of the Act was February 5, 1975, in other words, after most of plaintiff-husband’s period of employment with appellees was over. In appellant’s view, to apply the Act would be to make it retroactive in violation of the rule established in Bell v. Koppers, 481 Pa. 454, 392 A.2d 1380 (1978).

In Bell v. Koppers, supra, the plaintiffs or their decedents were employed by the United States Steel Corporation at its Clairton Coke Works. Work there was conducted in close proximity to coke ovens designed, manufactured, or installed by Koppers Company, Allied Chemical Corporation, and Salem Corporation. The plaintiffs alleged that exposure over-an extended period to substances emitted from these ovens had caused them or their decedents to develop lung cancer. It was agreed by all parties that “the injuries occurred before February 3, 1975.” Id., 481 Pa. at 456, 392 A.2d at 1381. The plaintiffs filed suit on August 25, 1976, against the companies that had designed, manufactured, or installed the ovens. Koppers thereafter filed a third party complaint against United States Steel Corporation seeking contribution or indemnity. United States Steel filed preliminary objections contending that since it had been the plaintiffs’ or their decedents’ employer, the Act of December 5, 1974, precluded Koppers’s suit against it. The lower court sustained the objections and we affirmed per curiam, Bell v. Koppers, 253 Pa. Superior Ct. 590, 384 A.2d 980 (1978). The Supreme Court reversed, however, holding that the Act did not apply because plaintiffs or their decedents had been injured before the effective date of the Act. Bell v. Koppers, 481 Pa. 454, 392 A.2d 1380 (1978). The Court reasoned that the right to contribution or indemnity that existed before the Act was a substantive right, and that therefore the Act could not be applied retroactively. The Court noted that its decision had been predicted by several federal district courts. Id., 481 Pa. at 459, 392 A.2d at 1383, citing Atkins v. Blow Knox Foundry & Mill Machine, Inc., 431 F.Supp. 369 (W.D.Pa.1977); Wesolowski v. Rhoads, 416 F.Supp. 1052 (E.D.Pa.1976); Clark v. Essex Intern, Inc., 410 F.Supp. 215 (E.D.Pa.1976); Browne v. Wheel-Horse Products, Inc., 408 F.Supp. 415 (E.D.Pa.1976); Brescia v. Ireland Coffee-Tea, Inc., 412 F.Supp. 488 (E.D.Pa.1976).

We do not find either the Supreme Court’s decision in Bell v. Koppers, supra, or any of the federal district court decisions cited by the Court, on point, for none of them addressed the question before us, of when an occupational disease becomes an injury for purposes of determining the applicability of the Act. As we have noted, in Bell the parties had agreed that the injury—lung cancer—“occurred before February 3, 1975,” the effective date of the Act. Id., 481 Pa. at 456, 392 A.2d at 1381. In each of the federal district court cases the injury was caused by a discrete event occurring before February 3, 1975. Thus Bell held that the Act of December 5, 1974, must be applied prospectively, and that the Act therefore did not preclude joinder of the employer where the injury occurred before the effective date of the Act. But the problem of how to determine whether an injury has occurred before the effective date of the Act was not addressed.

Given the absence of any decision on point, the lower court drew an analogy between determining when a plaintiff was injured for the purpose of deciding whether to apply the Act of December 5, 1974, and determining when an action accrues in a creeping disease case for the purpose of calculating the starting date of the statute of limitations. The lower court correctly stated that the statute of limitations does not start to run until a plaintiff has or reasonably should have knowledge of his injury, its operative cause, and the relationship between the injury and the operative conduct. Slip op. at 4. See Staiano v. Johns-Manville, 304 Pa. Superior Ct. 280, 450 A.2d 681 (1982); Anthony v. Koppers Company, 284 Pa. Superior Ct. 81, 425 A.2d 428 (1981); revs’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). The court then applied this standard to the facts of this case:

Plaintiff’s deposition shows quite clearly that prior to his retirement in September 1975 he had no health problems at all. “Toward the end” of his employment, the Plaintiff had trouble breathing and sleeping. It was not until September of 1975 that a Doctor told the Plaintiff he had a lung condition. No more information than this was imparted to the Plaintiff at this time. It was not until late 1975 that the Plaintiff found out that he had silicosis. In the case of silicosis as with all creeping or incremental diseases, it is arguable medically in this instance that the entity of silicosis existed prior to the effective date of the [Act of December 5, 1974].
Nonetheless, for purposes of disposition of the Additional Defendant’s motion for Summary Judgment, we must employ the legal standard which fixes the date of fruition •of Plaintiff’s cause of action no earlier than the date symptoms became manifest and the Plaintiff knew, or in the exercise of reasonable caution should have known, were related to his work environment.
Slip op. at 4-5.

Similarly, a federal district court has recently predicted that in determining whether the Act of December 5, 1974, applies, Pennsylvania courts would hold that an occupational disease is incurred on “the date of discovery or the date that the disease should have reasonably been discovered.” Tys-enn v. Johns-Manville, 517 P.Supp. 1290, 1295 (E.D.Pa.1981).

We are not persuaded by this reasoning. The purpose of the discovery rule is to ameliorate the harsh result that would otherwise arise from a mechanical application of the statute of limitations when a plaintiff is blamelessly ignorant of his injury. See Anthony v. Koppers, supra, 284 Pa. Superior Ct. at 86-87, 425 A.2d at 431. This purpose is unrelated to the purpose of the Act of December 5, 1974, which was enacted not to protect an injured employee but his employer by restricting the employee’s remedy against the employee to compensation, closing off any recourse against the employer in tort for negligence. Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980); Heckendorn v. Consolidated Rairlway Corp., 293 Pa. Superior Ct. 474, 439 A.2d 674 (1981); Arnold v. Borbonus, 257 Pa. Superior Ct. 110, 390 A.2d 271 (1978); Hefferin v. Stempkowski, 247 Pa. Superior Ct. 366, 372 A.2d 869 (1977). As regards that purpose, whether the plaintiff-employee had or reasonably should have had knowledge of his injury is irrelevant.

While we disagree with the lower court’s analysis, we agree with its result. It is unimportant that we reach this result by different reasoning. Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5 (1975); Lobianco v. Property Protection Inc., 292 Pa.Superior Ct. 346, 437 A.2d 417 (1981).

The Workmen’s Compensation Act provides compensation to workers for the “injuries” they incur in the course of their employment. 77 P.S. § 1, et seq. “Injuries” are defined to include certain occupational diseases. 77 P.S. § 411(2). Silicosis is one such designated occupational disease. 77 P.S. § 27.1(k). However, one may not recover compensation for an occupational disease unless the disease has resulted in death or a disability. Thus the Act provides that “whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease . . . . ” 77 P.S. § 411(2).

These provisions make it clear that plaintiff-husband’s “injury” did not become a basis for compensation—in other words, his injury did not “occur”—until he suffered a disability resulting from his silicosis. If, therefore, plaintiff-husband suffered his disability before the Act of December 5, 1974, became effective, then, his injury occurred before the Act became effective, and under Bell v. Koppers, supra, the Act is inapplicable and suit against his employer for contribution or indemnity is not precluded by the Act; but if he suffered his disability after the Act became effective, suit is precluded.

There is no statutory provision defining when a disability is first suffered. It has nonetheless been consistently held that this occurs only when there has been some loss in the employee’s earning capacity. See Unora v. Glenn Alden Coal Co., 377 Pa. 7, 104 A.2d 104 (1954); Woodward v. Pittsburgh Engineering & Construction Co., 293 Pa. 338, 143 A. 21 (1928); Montgomery v. Workmen’s Compensation Appeals Board, 42 Pa. Commonwealth Ct. 143, 400 A.2d 253 (1979); Consolidation Coal v. Workmen’s Compensation Appeals Board, 37 Pa. Commonwealth Ct. 412, 391 A.2d 14 (1978).

Here, plaintiff-husband had to retire from his employment as a result of silicosis on September 19, 1975. That was after the effective date of the Act of December 5, 1974. The Act therefore applies, and suit against appellees as plaintiff-husband’s employers is precluded. The lower court therefore properly granted appellees’ motion for summary judgment.

This conclusion is consistent with case law. In McIntyre v. E.J. Lavino & Co., 344 Pa. 163, 25 A.2d 163 (1942), the employee operated a mill that brought him in contact with manganese dust. He did this from 1935 to September 1937, when he was transferred to another department and had no further contact with manganese. He was discharged in February 1938 and twenty days later he became totally disabled from manganese poisoning. He petitioned for compensation under the Occupational Disease Act of 1937, which became effective January 1, 1938. The employer argued that since the employee’s exposure to the manganese had occurred before the effective date of the Act, to award compensation under the Act would be to give the Act retroactive effect. This argument, it will be observed, is essentially the same as appellant’s argument here. The Supreme Court rejected the argument, saying:

Occupational diseases are, from a legal standpoint, peculiar in this—that they arise, not from an accident or event happening at a precise moment, but from a day by day exposure to unhealthful conditions over an extended period; the exact time of their origin is necessarily obscure and their insidious progress is not revealed until, frequently after a long interval, the disability manifests itself. In the case of accidents compensable under the Workmen’s Compensation Act the accident and the damage resulting therefrom, the cause and the effect, are usually determinable immediately and they are practically simultaneous. But, because in disability arising from an occupational disease both cause and effect are protracted and a long interval is apt to elapse between the exposure and the disability, it becomes necessary to fix a point of time at which the injury which is the subject of compensation shall be deemed to accrue. Accordingly, the Occupational Disease Compensation Act of 1937 provides, section 3, that “The date when the disability occurs from occupational disease shall be deemed to be the date of injury or accident.” Thus it makes the occurrence of the disability the event, which constitutes the compensable injury, although the disability is necessarily preceded by an exposure and an occupational disease of which it is the culmination.

Id., 344 Pa. at 165-66, 25 A.2d at 164 (footnote omitted).

It is true that the present Occupational Disease Act, The Act of June 21, 1939, P.L. 566, No. 284, § 101 et seq., which supplanted the Act of 1937, interpreted in McIntyre v. E.J. Lavino, supra, does not expressly state that the date of disability is deemed to be the date of the injury. Nothing suggests, however, that in enacting the present Act the Legislature intended a different rule; the rule is indeed implied throughout the Act. See 77 P.S. § 1201 et seq. (act applies to disabilities and deaths caused by occupational disease); 77 P.S. § 412 (relevant time calculated from date of disability).

We also note that our conclusion has been anticipated by a federal district court. Ryden v. Johns-Manville, 518 F.Supp. 311 (W.D.Pa.1981).

Affirmed.


author: WICKERSHAM, Judge:

text:
    451 A.2d 1366
    SOCIETY HILL TOWERS OWNERS ASSOCIATION v. Jeffrey E.W. MATTHEW and Diane M. Matthew, Appellants.
    Superior Court of Pennsylvania.
    Submitted April 23, 1982.
    Filed Oct. 22, 1982.

      Jeffrey E. W. Matthew, Philadelphia, appellants, in pro. per.
    Claire Rocco, Philadelphia, for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

A complaint in confession of judgment against the Matthews was filed by the Owners Association on November 17, 1980. Judgment was confessed pursuant to a warrant of attorney contained in the Code of Regulations of Society Hill Towers, a condominium. The complaint alleged that the Matthews bought a unit from Society Hill Associates, a limited partnership, and that the deed between the Matthews and Society Hill Associates subjects the Matthews to the Code of Regulations of Society Hill Towers. In turn, the Code of Regulations requires each unit owner to pay the Owners Association yearly assessments for their proportionate share of the common expenses as defined in the Declaration of Condominium for Society Hill Towers. The complaint further alleged that the Matthews failed to pay six months of installments on the yearly assessment and then failed to pay late charges; the total of installments due and late charges was $1534.38. Addition of attorney’s fees, costs and interest brought the total sum allegedly due to $1724.42, for which sum judgment was duly confessed.

The Matthews filed a petition to strike or open judgment on December 22, 1980. They argued that the confessed judgment should be stricken because disputes between unit owners and the management of the condominium are governed by the Unit Property Act, which provides for the collection of unpaid assessments by filing an action in as-sumpsit. The Matthews also asserted that their covenant to pay the yearly assessments depended upon the Owners Association’s performance of maintenance services; because the Matthews allegedly received no maintenance services they were not obliged to pay the yearly assessments.

In an order dated January 28,1981 the Honorable Paul A. Tranchitella denied the Matthews’ petition to strike or open judgment. The order was docketed on February 17, 1981 and this appeal timely followed. A sheriff’s sale to satisfy the confessed judgment was scheduled, but the Matthews petitioned for a stay of the sale. A stay was granted upon condition that the Matthews post a $3400 bond. The bond was posted and the sale did not take place.

Jeffrey E.W. Matthew and Diane W. Matthew, his wife, purchased a unit in Society Hill Towers from Society Hill Associates, a limited partnership, on February 28,1980. The Matthews bought a unit, 18 D-N, and a proportionate undivided interest in the common elements of Society Hill Towers.. The deed from Society Hill Associates to the Matthews states that the purchase of unit 18 D-N was made pursuant to a recorded declaration plan (Supplemental Reproduced Record at lb-22b) and a recorded code of regulations (Supplemental Reproduced Record at 23b-44b). Under the deed the Matthews agreed to pay charges arising from the maintenance of the common elements of Society Hill Towers as the charges were assessed by the elected Council of the Owners Association. (Reproduced Record at 28a-30a). The Matthews’ acceptance of the deed also ratified and confirmed the grant of a power of attorney to confess judgment against them. (Reproduced Record at 29a).

The Matthews made various requests for maintenance services to the management of Society Hill Towers. They asked for window shades, repairs to leaky faucets, placement of closet doors on tracks as well as a radio and television hook-up. When these demands were not met the Matthews began withholding their monthly installment payments of the yearly assessment for maintenance of the common elements of Society Hill Towers.

DISCUSSION

The Matthews frame their sole appellate issue as follows:

Did not the lower Court in denying Appellants’ Petition to Strike or Open a Confession of Judgement [sic] ignore the requirement of the Unit Property Act 68 P.S. 700.703, Pa.R.C.P. 2959(e), that a suit in Assumpsit be filed for any charge ‘assessed against a unit’ and that if there are issues which are submissible to a jury the Judgement [sic] shall be opened and furthermore that in said denial, the Appellants constitutional right to due process was completely denied?

Initially, we note that the Matthews are not entitled to have the judgment at issue stricken. As we said in Bethlehem Steel Corp. v. Tri State Industries, 290 Pa.Super. 461, 470, 434 A.2d 1236, 1240 (1981) (citations omitted):

A petition to strike a judgment is a common law proceeding, and operates as a demurrer to the record. Thus, a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters dehors the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken.

In this case, no defect in the judgment confessed against the Matthews appears in the record. The lower court correctly refused to strike the judgment.

The Matthews argue that a complaint in confession of judgment is an improper method of collecting assessment charges. They believe that the provisions of the Unit Property Act provide an exclusive remedy for collection of assessments. Section 703 of the Unit Property Act provides:

Any charge assessed against a unit may be enforced by suit by the council acting on behalf of the unit owners in an action in assumpsit: Provided, That each suit when filed shall refer to this act and to the unit against which the assessment is made and the owner thereof and shall be indexed by the prothonotary as lis pendens. Any judgment against a unit and its owner shall be enforceable in the same manner as is otherwise provided by law.

68 P.S. § 700.703.

We agree with the learned judge below that the above quoted language is permissive and not directory. When the legislature said charges assessed against a unit “may” be enforced by a suit in assumpsit it meant just that. A suit in assumpsit is not the only permissible method for collecting assessed charges, it is simply a permissible collection method. There was no abuse of discretion in the lower court’s refusal to open judgment on this issue.

The appellants also contend that the lower court failed to comply with the mandate of Pa.R.C.P. No. 2959(e), which provides:

(e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.

The Matthews’ petition seeking to open the judgment asserted, inter alia, that the required “confession of judgment notice” was not provided to them by the Owners Association, that no contractual documents existed upon which to confess judgment, that the entry of judgment was in retaliation for a lawsuit filed by the Matthews against the declarant and predecessor owners of Society Hill Towers, that the Owners Association could not act on behalf of the unit owners and that the Owners Association refused to provide maintenance services to the Matthews. The Owners Association denied these allegations in its answer to the petition to open or strike judgment.

The Matthews believe that their allegations alone created an issue of fact requiring the lower court to open the judgment. Yet Pa.R.C.P. No. 2959(e) directs the trial court to dispose of the rule on petition and answer as well as testimony, depositions, admissions and other evidence. The parties here did not take depositions but the Matthews ordered the matter on the motion list for disposition. When the moving parties order the cause for argument on answer and petition, as they did in this case, “all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule,” Pa.R.C.P. No. 209(b).

The trial judge applied Rule 209(b) to this case and made the following conclusions:

• 1. The requisite ‘Confession of Judgment Notice’ was attached and filed by the Respondent as noted in the record.
2. ‘Contractual’ documents were filed by Respondents .(the Deed) and judgment by confession was entered upon the Deed as well as the Code of Regulations.
3. The entry of judgment was not retaliatory.
3. [sic] Society Hill Towers Owners’ Association was lawfully acting for the unit owners as an unincorporated association.
5. Respondent did not refuse to render maintenance services to the Common Elements as required.

Lower ct. op. at 6-7.

We agree with the trial judge’s determination of these issues, Judge Tranchitella’s findings on the petition and answer are fully supported by the record.

Further, it is clear that the confessed judgment should not have been opened. To successfully open a confessed judgment the party seeking to open the judgment must act promptly and set forth a meritorious defense. Hellam Township v. DiCicco, 287 Pa.Super. 227, 429 A.2d 1183 (1981); Equibank N.A. v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981). The Matthews failed to produce evidence establishing a meritorious defense. The Matthews’ evidence was that they requested window shades, a terminal for a radio-television hook-up, repairs to kitchen and bathroom faucets and placement of closet doors on tracks. Yet under the Declaration and Code of Regulations the Owners Association is responsible only for maintenance of the common elements as defined by the Declaration. The Declaration and Code of Regulations require unit owners to repair and maintain their own apartments. As the lower court correctly observes, “By their own exhibits, Petitioners have shown that they requested services that the Association is not responsible to provide. They cannot now assert that their mere request for such services constitutes a valid defense and entitles them to have respondent’s judgment opened.” Lower ct. op. at 7-8.

We agree with Judge Tranchitella. Our scope of review in an appeal from a denial of a petition to open a judgment is limited. “The decision of the lower court as to whether or not a judgment should be opened is to be based upon equitable considerations, and we will not disturb that decision absent a clear and manifest abuse of discretion.” Equibank N.A. v. Dobkin, supra, 284 Pa.Superior Ct. at 147, 425 A.2d at 463. There was certainly no abuse of discretion in this case.

The Matthews finally argue that their constitutional right to due process of law was violated by the Owners Association’s confession of judgment against them. They point out that the Uniform Condominium Act, Act of July 2, 1980, P.L. 286, No. 82, 68 P.S. § 3101 et seq., allows imposition of charges for late payment of assessments and allows fines to be imposed for violations of the declaration, by-laws, rules and regulations of the association after notice and an opportunity to be heard. 68 P.S. § 3302(a)(ll). Assuming, without deciding, that section 3302(a)(ll) gives unit owners due process rights before fines for violations of the condominium’s regulations are imposed does not advance the Matthews’ position, because the Uniform Condominium Act does not apply to condominiums created, like Society Hill Towers, before the effective date of the Uniform Condominium Act. The Matthews’ constitutional argument is merit-less.

Order affirmed.

      . Act of July 3, 1963, P.L. 196, No. 117, § 101 et seq., 68 P.S. § 700.101 et seq. The Unit Property Act was repealed except as to condominiums created before the effective date of the Uniform Condominium Act. Act of July 2, 1980, P.L. 286, No. 82, 68 P.S. § 3101 et seq.

      . On February 17, 1981 an order by Judge Tranchitella was docketed which denied Jeffrey E.W. Matthew’s and Diane W. Matthew’s petition to strike or open a judgment confessed against the Matthews by the Society Hill Towers Owners Association. Pa.R.A.P. 311, governing interlocutory appeals as of right, provides that an appeal may be taken from an order refusing to open or strike a judgment. Pa.R. A.P. 311(a)(1). The Matthews’ notice of appeal was docketed on February 17, 1981; the appeal is timely.

      . We have before us an amendment to the Matthews’ brief in support of their argument that the Owners Association was obligated to provide these services. The amended brief contains no legal argument but rather proffers several letters and a pamphlet. The contents of the so-called amended brief were not received into evidence by the lower court. This court is bound to consider only those facts which are in the record and may not consider those interjected by briefs. Dile v. Dile, 284 Pa.Super. 459, 465 n. 5, 426 A.2d 137, 141 n. 5 (1981); Greene v. Liebergott, 235 Pa.Super. 475, 344 A.2d 501 (1975).

      . The Owners Association does not argue that the Matthews were dilatory in petitioning the court to open or strike the judgment confessed against them.

      . In its complaint in confession of judgment the Owners Association filed an affidavit averring that the Matthews conjugal income was in excess of $10,000 a year. Thus the entry of a confessed judgment against the Matthews did not violate the dictates of Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972).


author: MONTEMURO, Judge:

text:
    451 A.2d 1371
    COMMONWEALTH of Pennsylvania v. William R. MAWSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 12, 1981.
    Filed Oct. 22, 1982.

      R. James Kamage, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the court of common pleas, Luzerne County, summarily denying appellant’s petition for relief filed under the Post Conviction Hearing Act (PCHA).

On February 26, 1980, appellant entered a guilty plea to a charge of indecent exposure. Appellant was then sentenced to a term of one (1) to two (2) years imprisonment. Neither a petition to withdraw his guilty plea nor a direct appeal to this court was filed by appellant. On May 5, 1980, appellant filed a pro se petition pursuant to the PCHA alleging that he was denied the effective assistance of counsel and generally attacking the validity of his guilty plea. The lower court found the issues raised by appellant were waived due to his failure to file a petition to withdraw the guilty plea or a direct appeal and summarily dismissed the petition. The lower court also denied appellant’s request for counsel. We find the summary dismissal of appellant’s PCHA petition without first appointing counsel to be error.

In Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969), our Supreme Court held that a PCHA petition cannot be summarily dismissed without appointment of counsel where waiver serves as the basis for denying relief. The rationale for this holding was explained as follows:

Whatever may be the merits on the question of waiver here, a hearing court cannot summarily dispose of a petition, without counsel, on the ground of waiver. Our rules provide for summary disposition only in cases where the issue has been determined against the petitioner, not where it has been waived because of petitioner’s failure to raise the question for a determination.
The reasons for this rule are quite simple. The question of waiver is often a complicated legal one. There may be ‘extraordinary circumstances’ which will justify petitioner’s failure to raise the issue. There may have been an intervening change in the law which will now entitle him to relief. And failure to raise an issue constitutes only a ‘rebuttable presumption’ of waiver. These are not the kinds of issues which we can expect an uncounseled petitioner to adequately deal with. (Citations omitted). Id., 436 Pa. at 45, 258 A.2d at 516-17.

Accordingly, the lower court’s order is vacated and the case remanded with instructions to permit appellant to be represented by counsel in filing an amended PCHA petition.

Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . Act of January 25, 1966, P.L. 1580 (1965) § 1 et seq. 19 P.S. § 1180-1 et seq., repealed § 2(a) [1397] of Act 1978, April 28 P.L. 202, No. 53, to take effect June 27, 1980, No. 41 § 1, to June 26, 1982.


author: POPOVICH, Judge: CIRILLO, Judge,

text:
    451 A.2d 1373
    COMMONWEALTH of Pennsylvania v. Richard W. EVANS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1982.
    Filed Oct. 22, 1982.

      Richard L. Neff, Aliquippa, for appellant.
    John L. Brown, Assistant District Attorney, Beaver, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, Richard Evans, was found guilty by a jury of Theft by Unlawful Taking (18 Pa.C.S.A. § 3921); Receiving Stolen Property (18 Pa.C.S.A. § 3925); and Criminal Conspiracy (18 Pa.C.S.A. § 903). Post-trial motions were filed and denied. Sentence as to the Theft charge consisted of 2 to 5 years imprisonment; a similar concurrent sentence was imposed for the conviction of Receiving Stolen Property and a 6 to 12-month term, to be served concurrently to the aforesaid confinement, was issued for the Conspiracy offense.

The appellant raises three issues, all of which are intertwined with the contention that the trial court erred when it denied his counsel’s motion to withdraw, in light of the representation that a conflict of interest existed. We agree.

The facts are not in dispute and appear, upon a review of the record, as follows: On January 17, 1980, Allan’s Jewelry store, located in Rochester, Pa., was robbed. Out of this incident, the appellant, Richard Ross and Luis Davis were all charged with theft, receiving stolen property and conspiracy. At the preliminary hearing, all three defendants were represented by different counsel from the Public Defender’s Office of Beaver County. In the course of the testimony given therein, it .became evident that co-defendant Ross would plead guilty and testify for the Commonwealth against the appellant and co-defendant Davis. In reaction thereto, appellant’s counsel filed a Motion to Withdraw, in which he asserted, inter alia:

“5. That one of the three co-defendants, Richard Ross, has indicated that he will enter a Plea of Guilty to the aforesaid charges and further that he will testify on behalf of the Commonwealth against the other two defendants, Luis P. Davis, and Richard W. Evans.
6. That such testimony creates a conflict of interest between Ross and the other two co-defendants.
7. That such conflict of interest creates a possibility of harm to the defendant, Richard W. Evans, since there is dual representation of all the defendants herein.”

Said Motion was denied by Order of court dated June 10, 1980, and was reaffirmed by the court en banc in its denial of appellant’s post-trial motions. The rationale for the court en banc’s decision was based upon its reading of the United States Supreme Court ruling in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), which held, according to the post-trial court, that:

“. . . [T]he possibility of conflict is insufficient to overturn a criminal conviction; and, that in order to demonstrate a violation of a defendant’s Sixth Amendment rights, the defendant must establish that an actual conflict of interest existed and that the actual conflict of interest adversely affected his lawyer’s performance. See Cuyler, supra., 100 S.Ct., at 1718.” (Emphasis in original) (Lower Court Opinion at 8)

In analyzing the case at bar under the standard set forth in Cuyler, the court en banc held:

“[Although there may have been an actual conflict of interest between the attorney from the Public Defender’s Office who represented the Defendant Ross, who pled guilty, and the attorneys from the same Public Defender’s Office who represented the two Defendants who were convicted at a jury trial, it was not established that the dual representation which probably constituted a conflict of interest had in any way adversely affected the performance of the attorneys representing . . . [co-defendant] Davis and [appellant]. In fact, in the instant case, quite the opposite is true.
The attorneys representing Davis and [appellant] not only obtained the information that Ross would testify on behalf of the Commonwealth from their fellow attorney in the Public Defender’s Office but also learned at the preliminary hearing, which was several months before trial, what he would say. This enhanced their ability to prepare the case of [appellant] and [co-defendant] Davis; and when questioned by the Court en banc at argument on Defendants’ after-trial Motions, both the attorney for [co-defendant] Davis and the attorney for [appellant] stated that each had represented his client to the best of his ability and no differently than he would have had the attorneys for the three Defendants not all been from the Public Defender’s Office.
Therefore, we conclude that in the case now before this Court the conflict of interest test set forth by the U.S. Supreme Court in Cuyler v. Sullivan, [446 U.S. 335] 100 S.Ct. 1708 [64 L.Ed.2d 333] (1980) has not been met.” (Lower Court Opinion at 8-9)

Initially, we note that representation of co-defendants by different attorneys of the same law firm constitutes dual or joint representation. Commonwealth v. Albertson, 269 Pa.Super. 505, 410 A.2d 815 (1979). Our Supreme Court in Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979) observed that a public defender’s association is a “law firm,” Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974), and, as such, members of that office are prohibited from representing multiple clients. Commonwealth v. Du-Bose, 295 Pa.Super. 332, 441 A.2d 1258 (1982). However, dual representation is insufficient to support a finding of conflict of interest, and is not a per se violation of constitutional guarantees of effective assistance of counsel. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). To make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, but must at least show the possibility of harm. Commonwealth v. Westbrook, supra. The law applicable to dual representation cases was delineated in Commonwealth v. Breaker, 456 Pa. 341, 344-45, 318 A.2d 354, 356 (1974):

“Our dual representation cases make several principles clear. First, ‘[i]f, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings, even though no actual harm results. The potentiality that such harm may result, furnishes the appropriate criterion.’ Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641, 643 (1962). Second, a defendant must demonstrate that a conflict of interest actually existed at trial, because ‘dual representation alone does not amount to a conflict of interest.’ Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498, 501 (1968); Commonwealth ex rel. Corbin v. Myers, 419 Pa. 139, 213 A.2d 356 (1965), cert. denied, 386 U.S. 1013, 87 S.Ct. 1361, 18 L.Ed.2d 445 (1967). Third, ‘[t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, . . . but he must at least show the possibility of harm . . . . ’ Commonwealth v. Wilson, supra [429 Pa.] at 463, 240 A.2d at 501. Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, ‘that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense.’ Id. Accord, Commonwealth v. Cox, 441 Pa. 64, 69, 270 A.2d 207, 209 (1970) (plurality opinion).”

Since we conclude from the evidence discussed infra, that the appellant has established the existence of actual harm from the fact that counsel from the public defender’s office represented both he and Richard Ross, we need not determine if the Cuyler case (which requires a showing of actual harm) alters the standard in Pennsylvania (which requires only a showing of potential harm) in dual representation cases. But see Commonwealth v. Pinhas, 496 Pa. 210, 436 A.2d 618 (1981); Commonwealth v. Kauffman, 258 Pa.Super. 183, 392 A.2d 745 (1978) (Pa. Supreme Court has the right, in the exercise of its supervisory authority, to set higher standards for Pennsylvania than that enunciated by the U.S. Supreme Court).

The alleged conflict of interest arises out of the fact that the Public Defender’s Office of Beaver County represented Richard Ross, who entered a plea of guilty to conspiracy to commit theft the day prior to appellant’s trial. Ross did so as part of a plea bargain by which the District Attorney was to ask the court to drop the charges of burglary and receiving stolen property. In exchange for the prosecution’s recommendation to the sentencing court that various charges be dropped, Ross agreed to testify at appellant’s and co-defendant Davis’ joint trial.

At trial, appellant admitted being in the company of Richard Ross on January 16-17, 1980. He stated he met Ross at a local bar in Ambridge and spent the next two days drinking. On the morning of January 17th, appellant recounted how Ross asked if he could accompany appellant back to Beaver Falls. Before they left, Ross spotted co-defendant Davis and asked him if he wanted to ride with them. When the trio had traveled to Rochester, someone mentioned they were hungry and appellant stopped at a Kroger’s. On the way out of town, appellant was approaching a traffic sign when he heard Ross say “stop,” jump out of the front seat of the vehicle and slam the door. Appellant reacted by turning around in his seat and asking Davis, “Where that guy go, man?” Before Davis had a chance to respond, “Ross was opening the front door and getting in the front seat. And he said, ‘C’mon, let’s go.’ ” (N.T. 230) Appellant left town, crossed a bridge and headed toward Aliquippa. Immediately after crossing the span, appellant was pulled over by police. Appellant thought it was because of the condition of his vehicle and told everyone, “Don’t worry about it.” (N.T. 231) Appellant denied ever seeing the stolen merchandise prior to the preliminary hearing, although he did recall Ross saying to Davis, “Here, take this, Luis.” (N.T. 232) Appellant also denied having any knowledge of the robbery prior to, during or after its commission.

Ross’ version of what transpired is consistent with appellant’s, to a point. For example, Ross agrees that appellant and he had been drinking for a few days prior to the incident in question, and to picking Davis up on their way out of Beaver Falls on January 17th. However, the disparity in the two versions arises with Ross’ statement at trial that after the trio made a purchase at the Kroger’s in Rochester, they stopped by Allan’s Jewelry Store, at co-defendant Davis’ suggestion. At this time, according to Ross, “[Davis] said it would only take thirty seconds to a minute, a minute to thirty seconds to rob it and get away.” (N.T. 149) Thereafter, the three went down to Hine’s Bar in Ambridge. About 1:00 p.m., they went back to Rochester: As Ross stated in court, “We drove back down to Allan’s Jewelry Store, stopped the car. Luis [Davis] got out. I let him out. We pulled up the street aways. Then that’s when the place got robbed.” (N.T. 147) Additionally, Ross recounted how Davis came running back to the vehicle and saying, “[t]o go in a hurry.” (N.T. 148) Appellant complied, but the group was apprehended a short distance away by the local authorities. Ross also reaffirmed the statement by Davis about robbing the store.

It is abundantly clear, from an examination of the aforesaid, “that [appellant] had a defense inconsistent with that advanced by the other client[-Ross].” Commonwealth v. Breaker, supra. Here, appellant denied having any advance knowledge that a crime was going to be committed, let alone that there was an airing among the trio as to how the theft would be executed (time-frame). This is in direct conflict with Ross’ version, which portrays the appellant as being aware of the robbery prior to its commission, and playing a vital role (driving the getaway vehicle) in facilitating their (foiled) escape. Thus, instantly, we do not have a case “where co-defendants receiving joint representation present a joint defense, as by denying culpability and blaming other persons for the crimes.” Commonwealth v. Bracero, 262 Pa.Super. 189, 194, 396 A.2d 709, 711 (1978). Rather, we have a defense asserted by appellant which was inconsistent with that stated by Ross. Therefore, appellant established that a conflict of interest did exist, see Commonwealth v. Pinhas, supra, that “impermissibly imperiled his right to a fair trial.” Commonwealth v. DuBose, supra, 295 Pa.Super. at 341, 441 A.2d at 1263; see also Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 49, 176 A.2d 641, 643 (1962) (where appellant claimed that his co-defendant was guilty of the offense charged, and testified to same at joint trial, Court held: “Under the instant facts it is evident that the conflict of interest created by Attorney McGill’s appointment as counsel for both defendants was highly prejudicial to appellant’s rights.”). In accordance with the dictates of Cuyler and Breaker, we find that appellant is entitled to the relief requested. Therefore, the judgment of sentence is reversed and appellant is awarded a new trial.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I believe that Pennsylvania should adopt the holding of the United States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1709, 64 L.Ed. 333 (1980), which would require a defendant to demonstrate that dual representation and actual harm, as opposed to mere potential harm exists, in order to establish a conflict of interest, sufficient to constitute a denial of his sixth amendment right to effective assistance of counsel. Moreover, the present record fails to establish that the appellant suffered actual or potential harm as a result of dual representation. Therefore, I respectfully dissent.

While dual representation clearly exists since the public defender’s office represented co-defendants, I cannot agree ■with the majority’s finding that appellant had a defense inconsistent with that of his co-defendant, Ross, which resulted in actual harm to him. First, this Court has stated that a defendant’s asserted defense is not inconsistent with that of his co-defendant when the co-defendant offers no defense, but instead pleads guilty. Commonwealth v. Al-bertson, 269 Pa.Super. 505, 410 A.2d 815 (1979).

Secondly, Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970), reveals an additional factor which is not evident in the majority’s reference to Cox, which cites Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974). In Cox, the court stated:

A conflict may be established if a defendant can show either: (1) that he had a substantial defense, which was not raised, that was inconsistent with that of his co-defendant. . .

Cox, 441 Pa. at 69, 270 A.2d at 210. (emphasis added).

It seems obvious that the rationale for this rule is the belief that an attorney cannot provide effective assistance if he fails to assert a substantial defense of one client, in order to serve a conflicting interest of another. Commonwealth ex rel Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1968). Therefore, the holdings in Cox and Breaker are inapposite under the present facts since the co-defendant, Ross, pled guilty and appellant did raise and argue defense at trial.

Apart from appellant’s misplaced reliance upon Cox and Breaker, the courts have held that a conflict of interest might arise where an attorney represents a defendant as well as his accuser, as in the instant case. Commonwealth v. Small, 434 Pa. 497, 254 A.2d 509 (1969).

The majority in Small, however, held that the representation of a defendant and a co-defendant or accuser is nothing more than dual representation, which alone does not amount to a conflict of interest. Id., 434 Pa. 504, 254 A.2d at 501. The dissent reasoned that a conflict of interest must exist, couched in the following terms:

In order for joint counsel to ably represent his ‘implicating’ client, he cannot contemplate a strategy which would include vigorous cross-examination of this client to discredit his testimony or confession.

In the instant case, appellant's counsel vigorously cross-examined the co-defendant for an extended period of time, eliciting as much information as any private counsel could have. As such, there was no potential or actual harm sustained by appellant. Accordingly, I would affirm the judgment of sentence.

      . This is consistent with the “actual harm” the Court in Cuyler v. Sullivan, 446 U.S. 335, 350-351, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 347 (1980) was referring to when it stated:
      “[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” (Citations omitted) Id at 350-351, 100 S.Ct. at 1719, 64 L.Ed.2d at 347.
      Instantly, attorneys from the public defendant’s office not only represented clients (appellant and Richard Ross) whose versions of the incident in question were at odds, compare Commonwealth v. Jones, 300 Pa.Super. 338, 446 A.2d 644 (1982), but also negotiated a plea bargain for one of the three defendants which required, as a condition to its implementation by the District Attorney’s Office, that a co-defendant (Richard Ross) testify against the appellant. As was aptly stated in Commonwealth v. Pinhas, 496 Pa. 210, 436 A.2d 618 (1981), which also dealt with a conflict of interest claim, “[w]hat could be more conclusive evidence of a conflict of interest and this was known to all parties and the court before the jury was picked.” Id, 496 Pa. at 213, 436 A.2d at 620. Thus, we find, in accordance with the standard set forth in Cuyler (actual harm), as well as that delineated in Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974) (potential harm), appellant is entitled to the relief requested.

      . I agree with Justice Nix’s concurring opinion in Commonwealth v. Pinhas, 496 Pa. 210, 436 A.2d 618 (1981), where he stated that a defendant is only denied his sixth amendment right to effective assistance of counsel where the actual existence of a conflict is shown, citing Cuyler. Further, the acceptance of a lesser standard would require this court to engage in speculation in an effort to assure effective representation and would result in the overturning of otherwise valid convictions, solely for dual representation.

      . In Breaker, counsel for a co-defendant who had incriminated other persons charged, volunteered to represent the appellant who appeared at trial without counsel. Subsequently, the appellant pled guilty as per the advice of counsel. The Supreme Court, rightly so, stated that this dual representation created a potential for harm since counsel’s approach was to acquire as many guilty pleas as possible, to establish cooperation and a more lenient sentence for his original client.


author: POPOVICH, Judge:

text:
    451 A.2d 1378
    Dennis Raymond RHOADS, Tamar A. Dombach, Jacob E. Lopp and Sandra Jean Helm v. Eric E. HEBERLING, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed Oct. 22, 1982.

      John McCrea, III, Newville, for appellant.
    John H. Broujos, Carlisle, for appellees.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from judgments entered against appellant, Eric Heberling, who intentionally fired eight bullets from a semi-automatic rifle into an automobile occupied by the four appellees.. We affirm.

On August 18, 1978, a vehicle which was owned and operated by appellee-plaintiff, Dennis Rhoads, was parked on a side road in Cumberland County, Pennsylvania. Appellant-defendant, Eric Heberling, while wearing a camouflage suit and brandishing a rifle, aimed and shot his rifle into Rhoads’ automobile and continued shooting as the automobile was driven down the road. At this time, Rhoads’ automobile was occupied by three other individuals. They were appellees, Sandra Helm, Jacob Lopp, and Tamar Dom-bach. Two of the appellees received physical injuries. Ta-mar Dombach was struck six times in the buttocks with fragments of a shattering bullet. Pieces of the metal still remain in her body. Sandra Helm suffered a slight scratch across her lower back, but received no medical attention.

As a result of the incident, appellees filed an action in trespass seeking both compensatory and punitive damages. A jury trial was held, and verdicts were returned in favor of all appellees. Tamar Dombach received $60.00 for medical expenses incurred, $600.00 for pain and suffering and mental anguish and $750.00 for punitive damages. Sandra Helm was awarded $400.00 for pain ¿nd suffering and mental anguish and $750.00 for punitive damages. The other two individuals were awarded no compensatory damages for pain and suffering or mental anguish; however, Dennis Rhoads received $446.47 for damages appellant caused to his vehicle. Both Dennis Rhoads and Jacob Lopp, however, received $750.00 for punitive damages. Post-trial motions were filed and denied by the court en banc, and this appeal followed.

In this appeal, appellant raises two issues. He first contends that the trial court erred when it instructed the jury that (1) it could award punitive damages to the appellees-plaintiffs even if no compensatory damages were awarded, and (2) the amount awarded as punitive damages need not bear any relationship to the actual damages awarded. We must reject appellant’s contentions.

The pertinent portion of the complained of jury instruction reads as follows:

“The last thing that I have to define for you is this phrase called punitive damages. Each plaintiff has asked the jury in this particular case to include as part of the damages for each plaintiff punitive damages. If you find in this case that the defendant’s conduct was a substantial factor in bringing about harm to the plaintiffs, and if you find that the conduct of the defendant was outrageous, you may award punitive damages as well as any compensatory damages in order to punish the defendant for his conduct and to deter the defendant and others from the commission of like acts.
There was also in the definition of mental anguish that I have given to you the word outrageous. The meaning of outrageous in that term is the same as is required for punitive damages.
A person’s conduct is outrageous when he acts with a bad motive or when he acts with reckless indifference to the interests of others. If you decide in this case that any or all of the plaintiffs are entitled to an award of punitive damages, the amount of such damages then must be fixed by you.
In doing so, you may consider any or all of the following factors: One, you may consider the character of the defendant’s act in this particular case. You may consider the nature and extent of the harm to the plaintiffs which the defendant caused or intended to cause.
The amount that you assess as punitive damages need not bear any relationship to the amount you choose to award as compensatory damages. It is not nécessary that you award compensatory damages to the plaintiffs or any one of the plaintiffs in order to assess punitive damages against the defendant so long as you find in favor of the plaintiff and against the defendant on the question of liability.
The amount of punitive damages awarded must not be the result of passion or prejudice against the defendant on your part. The sole purposes of punitive damages, and the only purpose for which you may make an award and set an amount of punitive damages is to punish the defendant’s outrageous conduct and to deter the defendant and others from the commission of like acts. Ordinary negligence as I have defined it to you will not support an award of punitive damages.
Just to go back over this with you again. I realize that hearing these phrases for the first time could cause lawyers difficulty. I will just go back over these with you again.
All of the damages and all of the four verdict slips are compensatory damages except punitive damages. The burden of proof is on the plaintiff in proving compensatory damages in all cases except the two men, where they are asking for damages for mental anguish, to prove negligence on the part of the defendant and to prove that this negligence was a substantial factor or was [the] cause of bringing about the harm to the plaintiffs. If they have met that burden of proof, then they are entitled to verdicts for the compensatory damages.
For the compensatory damages of mental anguish as far as the two young men are concerned, the burden of proof is that the plaintiff must show that the conduct of the defendant was extreme and outrageous and was done intentionally or recklessly, and that it did cause severe emotional distress to both of these male plaintiffs or to one of these male plaintiffs. It is not necessary that bodily harm result in considering the assessment of damages for mental anguish as far as the two male plaintiffs are concerned.
Punitive damages, I have just covered with you. Remember that this requires that the plaintiff prove that the conduct of the' defendant was outrageous as I have defined that term to you. Remember again, the purpose of punitive damages is to punish outrageous conduct and to deter the defendant and others from the commission of like acts.... ”
In Re: Jury Charge, 9/25/80 at 11-13. (Emphasis added).

Under the circumstances of this case, we conclude that the trial court did not err when it instructed the jury on punitive damages.

Initially, we must set forth the governing principles of law:

“Pennsylvania has adopted the rule of punitive damages as set forth in § 908 of the Restatement of Torts and the comments thereunder. Section 908(1) provides: ‘ “Punitive damages” are damages other than compensatory or nominal damages awarded against a person to punish him for his outrageous conduct.’ ” Focht v. Rabada, 217 Pa. Super. 35, 38, 268 A.2d 157, 159 (1970). Accord Johnson v. Pilgrim Mutual Insurance Company, 284 Pa. Super. 314, 324, 425 A.2d 1119, 1124 (1981).

Additionally, we note that portions of the trial court’s charge were verbatim from the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions.

According to appellant, the cases in Pennsylvania reject a particular section of the commentary found under § 908, comment c.

Before examining this claim, we must review the comment in context:

“c. Extent and nature of harm. In the earliest cases in which punitive damages were allowed, the plaintiffs suffered no substantial harm, or at least no physical or financial harm appeared. These were cases in which public officials were guilty of outrageously oppressive conduct. Punitive damages are today awarded when there is substantial harm and when there is none. Although as stated in Comment e, the extent of the harm may be considered in determining their amount, it is not essential to the recovery of punitive damages that the plaintiff should have suffered any harm, either pecuniary or physical.
Thus an award of nominal damages (see § 907) is enough to support a further award of punitive damages, when a tort, such as a trespass to land, is committed for an outrageous purpose, but no significant harm has resulted.
Compensatory damages in a trifling amount and substantial punitive damages in the same verdict are not necessarily inconsistent. It is essential, however, that facts be established that, apart from punitive damages, are sufficient to maintain a cause of action. Thus a nonharmful unauthorized dealing with another’s chattel, if not amounting to a dispossession, does not give rise to a cause of action and the fact that it was done with a bad motive is immaterial. On the other hand, in torts like malicious prosecution that require a particular antisocial state of mind, the improper motive of the tortfeasor is both a necessary element in the cause of action and a reason for awarding punitive damages.
In many cases in which compensatory damages include an amount for emotional distress, such as humiliation or indignation aroused by the defendant’s act, there is no clear line of demarcation between punishment and compensation and a verdict for a specified amount frequently includes elements of both.” (Emphasis added.)

More specifically, appellant contends

“that Pennsylvania does adhere to the portion of Comment c which reads: ‘It is essential ... that facts be established which, apart from punitive damages, are sufficient to maintain a cause of action’, before a plaintiff can recover punitive damages. The cases . . . especially Hilbert, reject plaintiff’s literal interpretation of the statement in Comment c that ‘it is not essential to the recovery of punitive damages that the plaintiff should have suffered any harm, either pecuniary or physical.’ ” Brief for Appellant at 10 (Emphasis added).

We must reject appellant’s contention for the following reasons.

Some confusion has existed in this area of the law because of certain language appearing in Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959). In Hilbert, the plaintiff-decedent died as a result of an automobile accident which involved Dale Rutz and Frederick Roth, both of whom were drag racing at the time. Initially, plaintiff sued the Rutz estate for compensatory damages and also sued Roth for compensatory and punitive damages. A joint trial was held, and the trial court granted withdrawal of a juror as to Roth because of “the awkwardness of the application of the dead man’s rule only to the Rutz case.” Id., 395 Pa. at 271, 149 A.2d at 650. The trial proceeded against the Rutz estate and resulted in a verdict of $10,000 for the plaintiff. Judgment was entered and satisfied. Defendant Roth then petitioned the court to discontinue the action as to him because judgment had been satisfied in the case. This petition was granted, and the plaintiff appealed.

Our Supreme Court held that under the Uniform Contribution Among Tortfeasors Act of 1951 the plaintiff could not proceed against Roth. The Act of July 19, P.L. 1130 (Repealed) Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1277], effective June 27, 1978; superceded by 42 Pa.C.S.A. § 8321, et seq. The Court then in examining the punitive damages issue stated the following:

“Finally, plaintiff contends that he is entitled to proceed against Roth for his punitive damages even though pre-eluded on his claim for compensatory damages. It is well recognized that no award for punitive damages may be made where actual damage has not been suffered. Hygenic Fleeced Underwear Co. v. Way, 35 Pa. Super. 229, 235; Benson v. Pennsylvania R. Co., 1917, 66 Pittsb.Leg.J. 350; Restatement, Torts, Sec. 908, Comment (c). In this case actual damage has been suffered but none for which plaintiff can now bring action against Roth. The right to punitive damages is a mere incident to a cause of action— an element which the jury may consider in making its determination—and not the subject of an action in itself. Hygenic Fleeced Underwear Co. v. Way, supra; 25 C.J.S. Damages § 118, pp. 713-714 and cases cited therein. See MacHolme v. Cochenour, 1933, 109 Pa. Super. 563, 167 A. 647; Stricklen v. Pearson Construction Co., 1918, 185 Iowa 95, 169 N.W. 628. Hence, since plaintiff no longer has a cause of action of which his claim for punitive damages may be an element, that claim must fail.”
Hilbert v. Roth, 395 Pa. at 276, 149 A.2d at 652. (Emphasis added).

We are unable to agree with appellant that the above statement was meant to articulate the proposition that a jury cannot award punitive damages without awarding a specific amount as compensatory damages. We have examined the cases and other authority cited after the statement in Hilbert, and we conclude that they also do not support a contrary result.

In Hygenic Fleeced Underwear Co. v. Way, 35 Pa.Super. 229 (1907), plaintiff filed an action in slander against the defendant because of certain information which the defendant published in an advertisement. Because a slander action required proof of special damages, this Court stated that “[a]s that[, special damages,] is the gist of the action it is impossible to see how there can be a recovery in the absence of such allegation and proof.” 35 Pa.Super. at 235.

The other case cited, Benson v. Pennsylvania Railroad Company, 66 P.L.J. 350 (1917) also is instructive. In Benson, the plaintiff sued in negligence for emotional distress caused by the defendant, Pennsylvania Railroad Company, when the train in which he was riding carried him past his stop “without warning and without his knowledge.” Id. at 350. The trial court stated the following:

“It is conceded that the plaintiff did not suffer any actual physical injury or financial loss and would not be entitled to recover compensatory damages, but he urges that he has the right to ask a jury to award punitive damages and therefore a non-suit could not be entered, upon the theory that the acts of the defendant's employees amounted to an assault. That there can be no recovery in Pennsylvania for compensation for fear and mental agony wholly disconnected from actual physical injury is settled law, as shown by the opinion of Judge Corbet. It is also settled that this is not merely a rule which prohibited the recovery of damages but is accepted as a basic principle that there is no cause of action, evidently adopting the rule that there cannot be a recovery of nominal damages for mere negligence.” Id. (Emphasis added.)

Hence, the court denied recovery because no action was cognizable under the state of the law of this Commonwealth.

Thus, it is evident from a review of the cases that the Restatement view has been adopted in Pennsylvania. Under that view, “[i]t is essential .. . that facts be established that, apart from punitive damages, are sufficient to maintain a cause of action.” Restatement 2d § 908, comment c (Emphasis added). Accordingly, the trial court did not err when it instructed the jury that it could award punitive damages to the plaintiffs, appellees in this case, even if no compensatory damages were awarded since the court also told the jury that it first must “find in favor of the plaintiff and against the defendant on the question of liability.” In Re Jury Charge, 9/25/80 at 12. (Emphasis added).

Appellant next argues that the trial court erred when it instructed the jury that the amount of punitive damages awarded need not bear any relationship to the actual damages awarded. We must reject this contention as well. In this instance, the trial court’s instruction is in accord with the Restatement on Torts, which we have stated previously has been adopted in Pennsylvania. It also is the view set forth in the Proposed Instructions of the Supreme Court Committee. See footnote 1, infra.

To begin with, our Supreme Court has summarized the governing principles accordingly:

“Under our decisions the jury fixes the amount of such damages (which are in no sense compensatory but purely penal in nature) without yardstick, subject only to reduction by the court if deemed excessive under the circumstances of the particular case. See Voltz v. General Motors Acceptance Corporation, 332 Pa. 141, 2 A.2d 697; Mitchell v. Randal, 288 Pa. 518, 137 A. 171; Thompson v. Swank, 317 Pa. 158, 176 A. 211.” International Electronics Co. v. N.S.T. Metal Products Co., 370 Pa. 213, 225, 88 A.2d 40, 46 (1952). See generally Comment 75 Dick.L.Rev. 585 (1971) (emphasis added).

Although the case law has not been free from ambiguity on whether some relationship must exist between the compensatory and punitive damages awarded, a well known commentator, Prosser, has stated that the reasonable relationship rule “has meant little more than that under the particular circumstances these courts do not like the size of some verdicts.” Prosser, Handbook of the Law of Torts at 14 (4th ed. 1971).

Our Supreme Court, however, in addressing the reasonableness of an award for punitive damages, has articulated some guidelines and commented as follows:

“Appellant’s final contention is that there was no evidence sustaining the award of punitive damages. ‘ “Punitive damages” are damages, other than compensation or nominal damages, awarded against a person to punish him for his outrageous conduct.’ Restatement of Torts, Sec. 908(1). Comment b. to the above section states that ‘punitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.’ In Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944), we said that exemplary damages must be based on ‘ “malicious”, “wanton”, “reckless”, “willful”, or “oppressive” conduct on the part of defendant’. In determining whether punitive damages should be awarded, the act itself together with all the circumstances including the motive of the wrongdoer and the relations between the parties should be considered. Restatement, Torts, Sec. 908, comment e; Hughes v. Babcock, supra.”
Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963). Accord Stevens v. Economy Bank of Ambridge, 413 Pa. 442, 454 n. 6, 197 A.2d 721, 727 n. 6 (1964); Edmond [Esmond] v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966) (Emphasis added.)

When applying these factors to the instant case, it is obvious that the punitive damages are supported by the evidence since appellant’s unprovoked attack upon the appellees, in firing eight bullets from a semi-automatic rifle at a vehicle which was occupied by the four appellees, was reckless. See Restatement 2d § 908 comment (b) (“Reckless indifference to the rights of others and conscious action in disregard of them may provide the necessary state of mind to justify punitive damages.”) Accordingly, the judgments entered will not be disturbed.

Order affirmed.

      . The proposed instructions read as follows:
      “If you decide that the plaintiff is entitled to an award of punitive damages, the amount of such damages must be fixed by you. In doing so you may consider any or all of the following factors: (1) the character of the defendant’s act, (2) the nature and extent of the harm to the plaintiff which the defendant caused or intended to cause [in this regard you may include the plaintiff’s trouble and expense in seeking to protect his interests in legal proceedings and in this suit] (3) the wealth of the defendant insofar as it is relevant in fixing an amount which will punish him (it), and deter him (it) and others from like conduct in the future. [The amount you assess as punitive damages need not bear any relationship to the amount you choose to award as compensatory damages, and] it is not necessary that you award compensatory damages to the plaintiff in order to assess punitive damages against the defendant so long as you find in favor of the plaintiff and against the defendant on the question of liability.” Pennsylvania Standard Jury Instructions 14.02 (Civil), Subcommittee Draft (September 26, 1976).

      . Comment e states:
      “e. Amount of damages. In determining the amount of punitive damages, as well as in deciding whether they should be given at all, the trier of fact can properly consider not merely the act itself but all the circumstances including the motives of the wrongdoer, the relations between the parties and the provocation or want of provocation for the act. (See § 921). In addition, the extent of harm to the injured person can be considered by analogy to the doctrine of the criminal law by which the seriousness of a crime may depend upon the harm done, as when a battery with intent to kill results in mayhem or murder. Included in the harm to the plaintiff may be considered the fact that the plaintiff has been put to trouble and expense in the protection of his interests, as by legal proceedings in this or in other suits. (See § 914). The wealth of the defendant is also relevant, since the purposes of exemplary damages are to punish for a past event and to prevent future offenses, and the degree of punishment or deterrence resulting from a judgment is to some extent in proportion to the means of the guilty person.”

      . Our Supreme Court since has held that a plaintiff can recover damages for negligently caused mental trauma. See e.g., Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (plurality opinion).

      . Although appellant has brought to our attention federal cases which have addressed the issue presented in the instant case, we note that such case law is not controlling since the question is one of state law. See Radar v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199, 203 (1962).

      . See e.g., Hughes v. Babcock, 349 Pa. 475, 481, 37 A.2d 551, 554 (1944) (“Although there is no fixed rule governing the amount which should be awarded as exemplary damages, it must not be disportionate to the award of compensatory damages”); Rider v. York Haven W & P. Co., 251 Pa. 18, 95 A. 803, 806 (1915) (“We know of no case in our own State where punitive damages were allowed in almost treble the amount of actual damage sustained”.). See generally, 75 Dick.L.Rev. 585, supra.

      . In analyzing whether an act is reckless, this Court has recognized the following Restatement principle:
      “if the conduct involves a high degree of chance that serious harm will result, that fact, that he knows or has reason to know that others are within the range of its effect, is conclusive of his recklessness.” Focht v. Rabada, 217 Pa.Super. at 38, 268 A.2d at 159 (quoting Restatement 2d § 600).
      In the instant case, appellant’s conduct “involved a high degree of chance that serious harm will result”, and hence appellant “[h]ad reason to know that others [we]re within the range of [the rifle’s] effect.” Id.


author: VAN der VOORT, Judge:

text:
    451 A.2d 1384
    Penny Jo NEMETH v. Douglas NEMETH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 12, 1982.
    Filed Oct. 22, 1982.

      Claude V. Falkenhan, Zelienople, for appellant.
    Lester Scott Becker, Butler, for appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This case has had a long, and to some extent, confusing passage through the Butler County Court of Common Pleas. The controversy arose from conflicting claims, by now divorced parents, over the custody of their two children, now aged 4 and 6, (ages 3 and 5 at the time of the order here appealed from).

On November 5, 1979, the parties executed a “Property Settlement, Support and Custody Agreement” in which they agreed to live, separate and apart, to divide their household effects and real property. Custody of the children was placed by implication in the mother, with partial custody in the father. The father was to pay support to the mother for the benefit of the children. On February 24, 1980, the father phoned the mother and advised her he was retaining custody of the two children. On February 25, 1980, the mother filed a petition for habeas corpus, and on February 26, 1980, the father filed a “Petition to Confirm Custody.” Both petitions were presented to President Judge Kiester for disposition at the same time.

Judge Kiester entered, without a hearing, an order dated February 26, 1980, denying the “Petition to Confirm Custody”, finding that “this is not proper procedure to determine custody or to protect the rights of children.” The court granted the petition for habeas corpus; and ordered the father imprisoned in Butler County Prison until custody of the children was returned to the mother. On the same day, the father filed an appeal to this court at No. 157 Pittsburgh, 1980. On February 27, 1980, Judge Kiester refused an application for a stay, pending appeal. On February 29, 1980, Judge Montgomery of the Superior Court, upon Petition and Answer of Counsel, and after a hearing, remanded the case to the Butler County Court for a hearing within five days on the Petition to Confirm Custody, which was to be treated as a “petition to change custody due to a change in circumstances .. . . ” The father was ordered released upon posting of bond in the sum of $2,000, conditioned upon his production of the children at the hearing.

On March 4th and 5th, 1980, Judge Kiester conducted a hearing, after which he entered an order dated March 5, 1980 continuing principal custody of the children in the mother, with visitation rights in the father. On March 6th, 1980, the father filed a second appeal to the Superior Court at No. 195 Pittsburgh 1980.

On December 4, 1980, the father again refused to return the children to their mother. Appellant further claims he acted so “believing the welfare of his children was threatened”. Appellee-mother filed a second petition for contempt on December 5, 1980. A hearing was held that day before Judge Kiester. After argument by counsel, a rule to show cause was issued upon the father. A hearing was held on December 8, 1980, before Judge Kiester, following which he entered the order presently appealed from. Appellant was found to be in violation of the order of March 5, 1980 and held in contempt of the court. He was directed to return the children to the mother’s custody; and required to post bond in the sum of $1,000 to insure his compliance with the order of March 5, 1980. The father was committed to the Butler County Prison pending compliance with the bond requirement.

Appellant’s brief, submitted to this court raises five issues. A number of the issues may be resolved with a cursory discussion. We will address the issues seriatim.

1. Was the prosecution for civil or criminal contempt?

The contempt citation here in question sought compliance with the previously entered custody order. The lower court’s actions were an attempt to coerce the father to abide by the custody order. Violation of such an order has been held to be civil contempt. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968). See also Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); Commonwealth v. Feiek, 294 Pa. Superior Ct. 110, 439 A.2d 774 (1982).

2. Was appellant entitled, at the contempt proceedings to present evidence excusing his noncompliance?

An alleged contemner must be allowed an opportunity to explain or excuse his non-compliance of the order of court as intent is an essential element of contempt. Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981); Matter of Mandell, 489 Pa. 522, 414 A.2d 1013 (1980); In Re Ebo, 244 Pa. Superior Ct. 163, 366 A.2d 1243 (1976). However, a contempt defendant may not testify without limitation. At issue is his failure to comply with the court’s order.

Our review of the proceedings clearly indicates that appellant attempted, in the contempt proceedings, to litigate the issue of custody. As this court indicated in its opinion in this- case at 289 Pa. Superior Ct. 334, 433 A.2d 94, contempt proceedings for failure to return the children should be held separately from proceedings in which custody is to be determined. Therefore, we find the lower court properly limited appellant’s testimony.

3. If the proceedings were for civil contempt, should not the lower court have at the December 8, hearing only made the rule absolute?

Five elements are essential to an adjudication for civil contempt:

1) rule to show cause why attachment should not issue;
2) answer and hearing;
3) rule absolute;
4) hearing on contempt citation; and
5) adjudication of contempt.

Crislip v. Harshman, 243 Pa. Superior Ct. 349, 365 A.2d 1260 (1976).

In this current case appellee filed a petition for contempt on December 5, 1980. That afternoon a hearing was held and after argument of counsel a rule was issued to appellant. On December 8, 1980, at the designated returnable time the parties appeared in court, testimony was taken and appellant was found in contempt. As in Crislip, “the nomenclature ascribed to the various hearings [and documents] by the lower court conveys, on the surface, a message inconsistent with the rules . . . . ” 243 Pa. Superior Ct. at 353, 365 A.2d 1260.

However, in Crislip, this court found “when we bore through the terminology and extract the core of the hearings, we find that, in substance, the procedures employed comply with the requirements.” “Appellant suffered no punishment until after the determination of contempt in the second hearing. He was informed of the charge against him and apprised of the means of purging himself of contempt and of avoiding punishment. That is all that is required by the rules.” Id., 243 Pa.Superior Ct. at 353-354, 365 A.2d 1260. We view appellee’s petition for contempt as the initial rule to show cause. The hearing on December 5, 1980, at which counsel argued appellant’s position satisfies the requirement of answer and hearing. The rule to show cause, returnable on December 8, was in fact more in the nature of a rule made absolute. Appellant was thereafter adjudicated in contempt. Such procedure while not worthy of emulation meets the requirement of the rules.

4. Should Judge Kiester have recused himself?

Appellant contends that Judge Kiester was partial, biased, and prejudiced against his case. Such a claim is one of the most serious charges that can be leveled at a judge. The record must clearly show prejudice, bias, capricious disbelief or prejudgment, In re J.F., 487 Pa. 115, 408 A.2d 1382 (1979). Appellant alleges various specific indications of the judge’s partiality.

We find nothing in the record to demonstrate that Judge Kiester abused his legal discretion in the matter by refusing to recuse himself. Two written motions for recusal were filed by appellant, the first on March 5, 1980, and the second on December 8, 1980. Essentially the motions argue that the judge was biased against appellant because:

1) he had previously ordered appellant imprisoned for contempt on February 20, 1980 without a hearing;

2) he denied appellant an open and public trial in the contempt charges, and denied appellant’s children an open and public trial “on their custody” (R.4);

3) The Butler County Court has by order of court improperly delegated to non-judges the court’s duty to make decisions as to custody.

In Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971), the Supreme Court held that the presiding judge, during a proceeding where a party’s behavior amounts to direct criminal contempt may sit as fact finder at the contempt hearing. Similarly, in civil contempt proceedings, where the judge has not witnessed any contumacious conduct, the judge may sit as fact finder, even though the court previously found the party in contempt for failure to abide by its order.

Appellant’s second complaint in this regard appears to address the court’s refusal to allow him to raise the issue of custody in contempt proceedings. As we previously held, the court acted properly in this regard.

We find no reason to address the third argument, as local custody rules are irrelevant in appellant’s contempt proceedings; we fail to see how such general rules can reflect the court’s biasness directed towards an individual. Appellant-father specifically calls our attention to the hearing on the rule to show cause where the court directed the sheriff to take custody of the children. The court supposedly allowed the sheriff to determine where the children should remain for the weekend. While such may have been imprudent, it does not arise to a level where recusal is necessitated.

Reviewing the record, we find that faced with overly persistent and zealous advocacy, the court dealt firmly; there was no intemperate wrangling, or manifestation of bias. See Snyder, supra.

5. Did the lower court improperly prohibit court reporters from transcribing notes of judicial proceedings without first securing the affirmative permission of said court?

It is axiomatic that a stenographic recording of civil proceedings must be taken. Mansfield v. Lopez, 288 Pa. Superior Ct. 567, 432 A.2d 1016 (1982).

At the hearing below appellant complained of the court’s practice which had denied appellant access to a record of testimony. This, apparently on-going, battle had previously culminated in appellant’s suit against a court reporter who refused to transcribe such notes without first receiving the court’s approval. The court clarified and justified its policy as a means to insure that records in cases on appeal be given priority. (N.T. 14H6).

The notes of testimony of the December 8, 1980, hearing were transcribed and filed on December 22, 1980. However, the notes of the December 5, 1980 argument have not been transcribed, even though appellant apparently requested such at that time and has filed a written request for such for the sake of this appeal. While we abhor the apparent deliberate failure to transcribe such argument, we believe that we may nonetheless determine this appeal.

The actual word for word transcript of a proceeding is not an absolute necessity for an appeal, if an “equivalent picture” is available. Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971); Commonwealth v. Homsher, 264 Pa.Superior Ct. 271, 399 A.2d 772 (1979). Here appellant’s counsel, was also counsel in the proceedings below and we will assume his account of the December 5 hearing is accurate. Appellant’s account of such hearing demonstrates that such hearing was for the most part similar to the December 8 account. He questions the court’s recording policy, sought the disqualification of any reporter willing to abide by the court’s policy; sought the recusal of the trial judge. In addition counsel demanded that the petition only be heard upon adequate notice and questioned the court’s decision to allow the sheriff to determine custody for the weekend. (Appellant’s brief, pp. 9-10). In this context, we find no need to remand for completion of the record or for additional proceedings as no prejudice appears from the failure to transcribe the December 5 hearing.

Order affirmed.

      . The court treated the petition as one for contempt.

      . This appeal was argued before another panel of this court. By Per Curiam Opinion and Order, the question of custody was remanded, with directives, to the lower court. Nemeth v. Nemeth, 289 Pa.Superior Ct. 334, 433 A.2d 94 (1981).

      . Appellee-mother has advised the court that she would not file a brief in this appeal.

      . The order of December 5, 1980 is dated December 8, 1980, though filed December 5, 1980 at 5:21 P.M. The rule was returnable on December 8, 1980 at 9:00 A.M. We find that the date of the order “December 8” was apparently an oversight as the order was clearly entered December 5.

      . While the time intervals were extremely brief, we find that appellant was not prejudiced by such. We must make one last comment in this regard, a stricter adherence to the required procedure, and terminology would alleviate much of the confusion in such situations.

      . A transcribed recording of this proceeding has not been made available (See issue number 5, supra). However, reviewing the transcript of December 8, it is clear that counsel responded to appellee’s petition.

      . We wish to emphasize two points;
      1) courts should in civil contempt cases strictly adhere to procedure outlined in Crislip v. Harshman, supra; and
      2) upon request all proceedings should be recorded and transcribed.