author: WIEAND, Judge: JOHNSON, Judge,

text:
    449 A.2d 52
    In re C. D. HARADER TRUST For the Benefit of Richard S. HARADER, Jr. Appeal of GALLATIN NATIONAL BANK.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1981.
    Filed Aug. 6, 1982.
    Petition for Allowance of Appeal Denied Nov. 23, 1982.

      E. David Margolis, Uniontown, for appellant.
    Ira B. Coldren, Jr., Connellsville, for Fayette Bank, participating party.
    Charles W. Watson, Uniontown, for Edgar, participating party.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   WIEAND, Judge:

Can the settlor of an irrevocable trust amend a declaration of trust to name a contingent trustee to serve in the event that the named trustees die prior to termination of the trust. The Orphans’ Court of Fayette County held that there could be no such amendment and named Fayette Bank and Trust Company as successor trustee. Gallatin National Bank (hereinafter “Gallatin”) petitioned the court to vacate such appointment and give effect to the settlor’s supplement to the declaration of trust in which he named Gallatin as successor trustee. The court dismissed the petition, and Gallatin appealed. We reverse.

On January 15, 1964, an irrevocable trust was created by C. D. Harader for the benefit of his son, Richard S. Harader. The declaration of trust provided that if the settlor’s son died before age 35, the trust should continue for the benefit of the son’s then living children until the youngest child reached the age of 21. The named trustees were Allen C. Spurgeon and Richard S. Harader. The deed of trust, in paragraph 7, provided further:

If the said Allen C. Spurgeon shall resign or die or become unable to act as Trustee for any reason, JOHN L. SPURGEON, of the City of Uniontown, Fayette County, Pennsylvania, is hereby appointed as a Trustee to serve in his place or stead. If the said Richard S. Harader shall resign or die or become unable to act as Trustee for any reason, the remaining or surviving Trustee shall act as sole surviving Trustee.

Richard S. Harader died on October 12, 1968 at the age of 28. He was survived by a son, Richard S. Harader, Jr., born March 20, 1968. He is now the sole trust beneficiary. On April 14, 1969, the settlor executed a “Supplement” to the declaration of trust which recited the death of Richard S. Harader and provided:

NOW, THEREFORE, in order to avoid the necessity of any appointment by Court, the parties have agreed and do hereby agree that Gallatin National Bank, Uniontown, Pennsylvania, be, and the said bank is hereby, appointed to act as trustee of the above mentioned Trust in the event of the absence of any person designated by the Declaration of Trust to act as such trustee.

The settlor died on October 23, 1969; John L. Spurgeon died on June 11, 1971; and lastly, Allen C. Spurgeon died on March 24, 1979. The issue, as the parties agree, is the effectiveness of the settlor’s “Supplement” to the deed of trust which named Gallatin as successor trustee.

The settlor of a trust has power to modify a trust if and to the extent that by the terms of the trust he reserved such power. Restatement (Second) of Trusts § 331(1). If the declaration of trust shows an intent to create an irrevocable trust, then the settlor, generally speaking, has no power to alter the terms of the trust. Thompson, Trustee v. FitzGerald, 344 Pa. 90, 22 A.2d 658 (1941); Dickerson’s Appeal, 115 Pa. 198, 8 A. 64 (1887); 38 P.L.E. Trusts § 52; Bogert, Trusts and Trustees (2d ed.) § 992.

However, where the settlor receives no consideration for the creation of the trust, an amendment may be permitted to reform the trust instrument so as to prevent unanticipated contingencies from thwarting the intent of the settlor. Scholler Trust, 403 Pa. 97, 169 A.2d 554 (1961); Irish v. Irish, 361 Pa. 410, 65 A.2d 345 (1949). See also: LaRocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963); Hardy v. Bankers Trust Co. of New York, 137 N.J.Eq. 352, 44 A.2d 839 (1945); Scott on Trusts (3rd ed.) § 333.4.

In the instant case, the deaths of the primary and contingent trustees would not have terminated the trust or otherwise thwarted the intent of the settlor. The Probate, Estates and Fiduciary Code of June 30, 1972 authorizes the orphans’ court to appoint a trustee to fill a vacancy in the office of trustee. 20 Pa.C.S. § 7101.

We perceive no valid reason, however, for refusing to reform the trust instrument to give effect to the settlor’s selection of an alternate trustee. His intention in this regard should be given preference over an independent selection by the court. The amendment executed by the settlor did not alter the trust instrument. It did not change the beneficiary or alter in any way his rights or the conditions of the trust. When the settlor became aware, following the unexpected death of his son, that a possibility existed that the named trustees might not survive the termination of the trust, he sought to protect against this unanticipated contingency by naming an alternate trustee. The appellee suggests neither practical nor policy reasons for refusing to allow the trust instrument to be reformed in this manner, and we perceive none. The settlor reposed trust and confidence in Gallatin, and to reject his selection represents action so drastic that it should not be permitted unless the trust estate or the rights of the beneficiary be endangered thereby. Neither appellee nor the court below has suggested any reason, other than the general rule pertaining to the irrevocable nature of the trust, for refusing to give effect to the settlor’s selection of the alternate trustee. We conclude, therefore, that the court below should have reformed the deed of trust in accordance with the settlor’s express designation of an alternate, contingent trustee.

Reversed and remanded for the appointment of a trustee in accordance with the foregoing opinion.

JOHNSON, J., files a dissenting statement.

JOHNSON, Judge,

dissenting:

I dissent. I would affirm the order of the Orphans’ Court. A settlor cannot modify, except in certain specific circumstances, an irrevocable trust. Restatement (Second) of Trusts § 331 (1959). Where there is need for the appointment of a new trustee, this can be done by the court unless by its terms the trust provides otherwise. Restatement (Second) of Trusts § 108 (1959). By agreeing with the appellant to appoint it as a substitute trustee, settlor attempted to do what he had no right to do. If he wished to modify the terms of the irrevocable trust he should have petitioned the court for a decree of modification or reformation. See, e.g., In re Stolzenbach’s Estate, 346 Pa. 74, 29 A.2d 6 (1942). I agree with the lower court that settlor’s attempt to modify the terms of the trust was legally ineffective, particularly as the attempted modification was made without the consent of all the interested parties. Thompson v. FitzGerald, 344 Pa. 90, 22 A.2d 658 (1941); Restatement (Second) of Trusts § 338 (1959).


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    449 A.2d 54
    COMMONWEALTH of Pennsylvania, v. Larry BRINTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1982.
    Filed Aug. 6, 1982.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      Joseph B. Vanwyk, Media, for appellant.
    Vram Nedurian, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

Appellant, Larry Brinton, was convicted on December 20, 1977, following a jury trial of rape, involuntary deviate sexual intercourse, corrupting the morals of a minor, indecent assault, simple assault, criminal coercion, and criminal conspiracy. Appellant appealed the conviction to our court and we affirmed. Appellant then filed a petition for post-conviction relief pursuant to the Post Conviction Hearing Act (hereafter “PCHA”). The PCHA hearing court denied appellant’s petition for relief, and this appeal followed.

Appellant and two companions offered the rape victim a ride to her boyfriend’s house. Instead, they took her to a house in Chester where they engaged in smoking a controlled substance. The victim then asked to be taken to her sister’s house. The victim passed out and found herself lying on a bed. She was forcibly subjected to multiple sexual deviate acts by appellant and others. The victim went to a nearby house, and later related these incidents to the police.

Appellant has raised four issues on this appeal: (1) whether trial counsel was ineffective in the conduct of the Rule 1100 extension hearing because of failure to interview or call certain witnesses to rebut the Commonwealth’s showing of due diligence; (2) whether trial counsel was ineffective for arguing lack of jurisdiction to the jury which resulted from trial counsel’s failure to meet with appellant to discuss trial strategy; (3) whether trial and appellate counsel were ineffective in failing to argue that the criminal informations filed against appellant were void because they were stamped with a facsimile of the District Attorney’s signature; and (4) whether appellate counsel was ineffective for failing, on direct appeal, to allege the ineffectiveness of trial counsel.

The standard of our Court to be used in reviewing appellant’s allegations of ineffective assistance of counsel has been set forth in Commonwealth v. Crawford, 285 Pa.Super. 169, 427 A.2d 166, 171 (1981):

Our task in cases of this nature. . . encompasses an independent review of the record. . . and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. . . We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. . . [t]he balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis, (citations omitted).

Appellant’s first contention is whether trial counsel was ineffective in the conduct of the Rule 1100 extension hearing because of his failure to interview or call certain witnesses to rebut the Commonwealth’s showing of due diligence. Appellant alleges that if trial counsel had called certain witnesses, appellant’s availability would have been established and the Commonwealth precluded from an extension of the one hundred and eighty day rule.

We do not review the validity of the Rule 1100 extension hearing, because our Court determined that issue in appellant’s prior appeal: “the Commonwealth proved by a preponderance of the evidence that appellant’s whereabouts were unknown and that due diligence was utilized.” Brinton, 275 Pa.Super. at 308, 418 A.2d at 736. We must examine trial counsel’s stewardship at this hearing, only for the allegation of ineffectiveness.

The failure of defense counsel to call a possible witness is not to be equated with a conclusion of ineffectiveness absent some positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Rhodes, 272 Pa.Super. 546, 554-5, 416 A.2d 1031, 1035 (1979).

Appellant testified at the PCHA hearing that he had given trial counsel the names of friends, his parole officer, and his psychiatrist all of whom knew that appellant was “around” prior to his arrest. At the PCHA hearing, trial counsel testified that appellant did not supply him with the full names and addresses of his friends, and he felt that the friends would not be good witnesses. Trial counsel did not put appellant’s parole officer on the witness stand at the Rule 1100 extension hearing because, on cross-examination of two police officers, he brought out that the police officers had never contacted the parole officer. Trial counsel did not interview appellant’s psychiatrist, whom appellant had visited twice shortly before appellant’s arrest on August 13, 1977, because he believed that the Commonwealth had the burden of proving the request for an extension. He did not believe that it was appellant’s burden to prove his availability either through the testimony of the parole officer or the psychiatrist. We find trial counsel’s decisions were reasonable at the time and within the limits of trial strategy.

Appellant’s second contention is whether trial counsel was ineffective for arguing lack of jurisdiction to the jury which resulted from trial counsel’s failure to meet with appellant to discuss trial strategy.

Mere shortness of time spent conferring with a client does not constitute a basis for a finding of ineffectiveness on the part of counsel. Commonwealth v. Weakland, 273 Pa.Super. 361, 365, 417 A.2d 690, 692 (1979).

Trial counsel’s visits to appellant in prison were recorded twice in the prison’s visitor book, but there were times when he visited appellant and did not sign the book. During these visits, they discussed the facts of appellant’s case and the defense of the rape victim’s consent. Trial counsel pursued this defense in his cross-examination of the victim at trial.

Appellant does not question the jurisdiction of the trial court, but argues that trial counsel was ineffective for arguing this issue before the jury.

While some evidence of place of crime must be offered by the prosecution to sustain a guilty verdict, where there is a real question as to the place, it is reversible error for the trial judge to refuse the defendant’s request- to submit that question to the jury. Commonwealth v. Kloss, 253 Pa.Super. 559, 563, 385 A.2d 480, 482 (1978).

Trial counsel questioned the jurisdiction of the trial court because he elicited on cross-examination of the victim that she was not sure of the location of the house to which she was taken. Trial counsel argued to the trial court, outside the hearing of the jury, that he did not think the Commonwealth had shown that the criminal acts took place in Delaware County. The trial court did not rule on jurisdiction at the sidebar conference. In its jury instructions, the trial court charged that it had ruled, as a matter of law, that the case was properly tried in Delaware County. It was not ineffective for trial counsel to argue jurisdiction to the jury when he believed he had a reasonable basis for so doing.

Appellant’s third contention is that both trial and appellate counsel were ineffective in failing to argue that the criminal informations, filed against the appellant, and stamped; with the facsimile of the district attorney’s signature, were void.

Beginning with Commonwealth v. Belcher, 258 Pa.Super. 153, 156, 392 A.2d 730, 736 (1978) this Court held that:

the failure of the District Attorney to sign an information, renders it void, not merely voidable.. . When the vehicle for initiating a criminal trial (i.e., the information) is unsigned, it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made. . .

A more recent case, Commonwealth v. Levenson, 282 Pa.Super. 406, 410, 422 A.2d 1355 (1980), held that an information was not rendered invalid by the fact that an assistant district attorney had signed the district attorney’s name followed by his own initials. In other words, if the signature space on a criminal information is left blank,3 ******* or if the information is stamped with a facsimile of the district attorney’s signature but not initialed by an assistant district attorney, then the information is invalid.5 ******

In the instant case, each bill of information was stamped with the facsimile of the signature of Frank T. Hazel, District Attorney of Delaware County, but not initialed.

“Trial counsel cannot be held ineffective for failure to predict future developments in the law.” Commonwealth v. Robinson, 272 Pa.Super. 420, 423, 416 A.2d 527, 529 (1979). The Belcher case was decided on October 20, 1978. In the present case, on October 20, 1978, trial had ended and trial counsel was no longer appellant’s attorney. Therefore, trial counsel cannot be held ineffective for failure to raise the issue of the facsimile signature on the bills of information. Even if trial counsel were appellant’s attorney on this date, the bills of information would have appeared valid under Belcher since they were not blank.

Appellate counsel filed the notice of appeal on November 17, 1978, and appellant’s case was submitted to this Court on June 29, 1979. “Defense attorneys, as do all attorneys, carry an obligation to be aware of current law.” Commonwealth v. Lennox, 286 Pa.Super. 41, 45, 428 A.2d 228, 230 (1981). Appellate counsel could only have been aware of the Belcher case at the time of his representation of appellant on the direct appeal of his conviction to this Court. Therefore, the bills of information would have appeared valid to appellate counsel because they were signed with the facsimile of the District Attorney’s signature, and not left blank. Appellate counsel cannot be found ineffective in failing to predict that a facsimile signature of the district attorney, uninitialed by an assistant district attorney, would be held void.

We find that trial counsel is not ineffective, and therefore, appellate counsel is not ineffective in failing to raise trial counsel’s ineffectiveness.

Order affirmed.

POPOVICH and WIEAND, JJ., concur in the result.

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 3101.

      . Id; 18 Pa.C.S.A. § 3123.

      . Id.; 18 Pa.C.S.A. § 3125.

      . Act of 1974, May 18, P.L. 120, No. 53, § 1; 18 Pa.C.S.A. § 3126.

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 2701.

      . Id.; 18 Pa.C.S.A. § 2906.

      . Id; 18 Pa.C.S.A. § 903.

      . Commonwealth v. Brinton, 275 Pa.Super. 304, 418 A.2d 734 (1980), allocatur refused June 18, 1980.

      . Pa.R.Crim.P., Rules 1501-1507.

      . Trial, appellate, and PCHA counsel are three different attorneys.

      . The Court in Commonwealth v. Emanuel, 285 Pa.Super. 594, 598 n.2 428 A.2d 204, 206 n.2 (1981) states that Belcher held that an information with a blank signature line is void ab initio.

      . While the validity of the rubber-stamped, facsimile signature of the District Attorney is not directly put before us on this appeal, it is our belief that such a signature is valid and should not be used as a basis to invalidate a criminal bill of information.


author: WATKINS, Judge:

text:
    449 A.2d 58
    COMMONWEALTH of Pennsylvania, v. James R. TRUSS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed Aug. 6, 1982.

      Mark S. Refowich, Easton, for appellant.
    Michael Vedomsky, Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   WATKINS, Judge:

In this appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Northampton County, it is contended by the defendant-appellant, James R. Truss, that it was error to permit into evidence the confessions of a minor who had not been advised at the time of his interrogation by the police that he had the right to have an informed adult, parent or counsel present during the questioning. The contention is also made that the confession should have been suppressed for that reason. The suppression hearing judge refused to suppress the confession. We agree with the defendant and would suppress the confession and grant a new trial.

The facts are as follows: On February 9, 1978, a series of burglaries were reported in the Easton, Pennsylvania area. The defendant was one of those suspected of being involved. An Easton police detective accosted the defendant on the street and he agreed voluntarily to go to police headquarters. At headquarters he was read his Miranda rights and after interrogation, made a full oral and written confession. At no time was he ever advised that he had a right to have an adult, parent or counsel present. He was routinely asked his age and responded that he was born January 2, 1960 which was the same date that appeared in police files and which made him eighteen years of age at the time of questioning. However, the trial court found as fact that at the time of questioning he was actually 17 years of age having been born on February 25, 1960 which made him a juvenile. The juvenile records disclosed that that was the correct birth date but police failed to check the juvenile records prior to questioning.

The court below held that:
“In the instant case the police did check Defendant’s age—not once, but twice—through his own statement to police and through prior police records. In both instances the police received information that Defendant was born on January 2, 1960, and was therefore eighteen years of age at the time of questioning. We believe this is all the police can reasonably be required to do. We believe that if the police diligently make a good faith attempt to ascertain a suspect’s age, and if information from two separate sources including the Defendant himself indicates that Defendant is an adult, the police should be entitled to rely on this information in not giving the extra juvenile warnings.”

This disposition by the court below seems logical and good common sense and prevents a juvenile from taking advantage of the situation by falsifying his age to delay or thwart the administration of justice.

However, Pennsylvania law as enunciated by the Supreme Court has held that: “A juvenile cannot effectively waive Miranda rights absent an opportunity to consult with an interested and informed parent, adult or counsel. Statements made by a juvenile without this protection must be suppressed.” Commonwealth v. Walker, 477 Pa. 370, 383 A.2d 1253 (1979). In Commonwealth v. Markle, 475 Pa. 266, 380 A.2d 346 (1977), a juvenile’s statement to the police made without being informed that as a juvenile he had a right to consult with a parent, adult or counsel must be suppressed. See also, Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1980) [Affirmed on a divided court]; Commonwealth v. Gaskins, 471 Pa. 238, 369 A.2d 1285 (1977); Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977).

From these cases, the suppression of the confession is a mandatory requirement as set forth in Commonwealth v. Walker, supra, and Commonwealth v. Markle, supra, with the only exception being the equally divided affirmance in Veltre, supra. See also, Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981).

We need not discuss the contention concerning the court’s charge to the jury because of our disposition as set forth in this opinion.

Under the circumstances, we reluctantly reverse and direct that the oral and written confessions of the juvenile-defendant be suppressed; and hereby grant a new trial.


text:
    449 A.2d 60
    EMPIRE EXCAVATING COMPANY v. LUZERNE COUNTY HOUSING AUTHORITY and Anthony C. Thomas, t/a Loche Twelve Constructors. Appeal of Anthony C. THOMAS t/a Loche Twelve Constructors.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1981.
    Filed Aug. 6, 1982.

      Sharon R. Bitzel, Hazelton, for appellant.
    David M. Epstein, Scranton, for Empire, appellee.
    Bernard J. Kotulak, II, Wilkes-Barre, for Luzerne County, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

This appeal comes to us from the order of the Court of Common Pleas of Luzerne County, Civil Division, and involves the issue of the validity of a mechanics’ lien.

On October 11, 1977, Anthony C. Thomas, trading as Loche Twelve Constructors, entered into a contract of sale with the Luzerne County Housing Authority for the construction of eighteen (18) low-income housing units in Luzerne Borough. The project was federally financed and managed through the Department of Housing and Urban Development. Thomas then contracted with Empire Excavating Company for Empire to perform excavation work on the project.

On April 6, 1978, Empire filed a Mechanics’ Lien Claim, alleging a non-payment of $18,352.56. Title to the premises was transferred to the Authority by deed of Thomas dated September 6, 1978. Empire filed a Complaint on September 27, 1979 and an Amended Complaint on October 21, 1979. Thomas and the Authority filed Answers and New Matter to the Complaint to which Empire filed a Reply.

Thomas and the Authority then moved for Judgment on the Pleadings alleging that the Mechanics’ Lien was invalid. On August 20, 1980 the court below entered judgment in favor of Empire. Thomas took this appeal to this Court.

On appeal, Thomas is alleging that the mechanics’ lien is invalid because The Pennsylvania Mechanics’ Lien Law of 1963 (49 P.S. 1303(b)) states that no mechanics’ lien is allowed for labor or material furnished for a purely public purpose. Section 303(b) of the Act of August 24, 1963, P.L. 1175; 49 P.S. 1303(b) provides that:

“(b) Public Purpose. No lien shall be allowed for labor or materials furnished for a purely public purpose”.

Thus, as a general rule, a Mechanics’ Lien filed against municipal property is invalid. However, where the use of the property relative to which the mechanics’ lien is filed is not governmental in nature, but rather is proprietary and quasi-private, then an exception to the general rule that municipal property is exempt from mechanics’ liens is proper since an execution upon the lien would not disrupt an essential public service or function. American Seating Company v. City of Philadelphia, 434 Pa. 370, 256 A.2d 599 (1969). Thus, the question as to whether the mechanics’ lien filed by Empire is valid depends upon whether the Authority’s function with respect to the instant project was a governmental function or a proprietary one.

The Pennsylvania Housing Authorities Law, Act of May 28, 1937, P.L. 955, 35 P.S. 1541, et seq. makes it clear that the providing of safe and sanitary dwelling accommodations for persons of low income through new construction or the reconstruction, restoration, reconditioning, remodeling or repair of existing structures by public housing authorities are public purposes. See 35 P.S. 1542. Section 1563 of said Act states that:

“The property of an Authority is declared to be public property used for essential public and governmental purposes ...”

Section 1550 of said Act provides that:

“An Authority shall constitute a public body, corporate and politic, exercising public powers of the Commonwealth as an agency' thereof...”

Municipal Authorities are public bodies created without any motive or possibility of private profit. Any rentals of a public housing authority are fixed so as to cover the expense of the Authorities’ bonds, operations and administration. As such they are created with no motive of private, economic gain.

The exception to the general rule set forth in American Seating, supra, is not applicable to this case. In American Seating, the court held that the City of Philadelphia was involved in a proprietary function in its leasing of the Philadelphia Spectrum, a sports and entertainment complex, to a private developer. Under the terms of the lease potential profit could inure to the City. In our case no such circumstances exist. Thus, we hold that a public housing authority’s use of its property to provide housing to low income people constitutes a public use of that property. Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834 (1938). As such a mechanics’ lien filed against such a housing authority is invalid.

The second issue raised with respect to the validity of the mechanics’ lien is whether the property against which the lien was filed was the property of the contractor (Thomas) or the property of the housing authority at the time of the entry of the mechanics’ lien. Thomas is a private contractor against whom a valid mechanics’ lien may be filed. As discussed above the Authority is a municipal entity engaged in furthering a public purpose and a mechanics’ lien may not be validly filed against it.

The contract of sale executed between Thomas and the Authority was dated October 11, 1977. Article III of said agreement stated that:

“(a) The Property suitable for occupancy shall be conveyed to the Purchaser within 240. (sic)
The Seller agrees that no later than 60 days from the date of approval of this contract by the Government, it will commence and diligently continue the work, and the Purchaser reserves the right to cancel this agreement in the event of Seller’s failure to do so.”

Since the mechanics’ lien was filed by Empire on April 6, 1978 and title to the premises conveyed by deed to the Authority on September 6, 1978 it is apparent that unless the contract of October 11, 1977 can be construed to have transferred actual ownership of the premises to the Authority (Purchaser) then the mechanics lien is valid as having been entered against private property (Thomas). Thomas argues that the above contract language effectively transferred ownership of the premises to the Authority as of October 11, 1977 and that therefore, the mechanics’ lien is invalid as having been entered against a municipal entity. He argues that since he began construction on the premises within the required 60 days that purchase of the premises by the Authority was mandatory pursuant to the terms of the agreement and that therefore the Authority became the owner of the premises on October 11, 1977. The court below held otherwise. We agree with the court below and affirm its decision.

Article V of the October 11, 1977 agreement is entitled “Title to Property” and provides that the property “will be conveyed free and clear from all liens and encumbrances ...” The use of the future tense in discussing the issue of title to the property indicates that the parties did not intend the October 11, 1977 Agreement to constitute the actual transfer of the premises from Thomas to the Authority but, rather, indicates that they contemplated the actual transfer taking place at some future time when all of the terms of the contract had been fulfilled by the parties. We do not agree that Thomas’ initiation of construction within 60 days was the sole requisite for accomplishing the transfer of the premises to the Authority. We also note that the construction was financed by a mortgage given to Thomas by a private mortgagee (Miner’s National Bank of Potts-ville). The mortgage instrument named Thomas as the mortgagor and was dated December 22, 1977 more than two months subsequent to the date Thomas now claims that the Authority became owner of the premises. This is inconsistent with his present contention that ownership of the premises was transferred to the Authority in October of 1977.

Moreover our federal courts have held the construction phase of a public work, when performed by private enterprise, does not constitute a public work itself even though title to the public project may ultimately vest in the government. U. S. v. Harrison and Grimshaw Construction Co., 305 F.2d 363 (10th Cir. 1962); Armstrong v. U. S., 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960).

Thus, we hold that the court below was correct in concluding that the premises remained that of Thomas until it was accepted by the Authority. Under this “turnkey” project the premises remained that of the contractor until after construction was completed and the Authority accepted it.

Order affirmed.

      . We note that the record reveals that the contested sum was placed into escrow at the insistence of the Authority at the time that the deed was executed pending the outcome of the case.


author: PER CURIAM:

text:
    449 A.2d 62
    Richard I. REYNOLDS, Administrator of the Estate of Michael I. Reynolds, Deceased, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 23, 1981.
    Filed Aug. 6, 1982.
    Petition for Allowance of Appeal Granted Nov. 5, 1982.

      Richard C. Angino, Harrisburg, for appellant.
    Clyde W. McIntyre, Harrisburg, for appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   PER CURIAM:

Michael Reynolds, twelve years of age, was killed when the bicycle on which he was riding was struck by an automobile on August 30, 1975 in Susquehanna Township, Dauphin County. At the time of his death, he was covered under a no-fault automobile insurance policy which had been issued to his father by Nationwide Mutual Insurance Company. An action in assumpsit was instituted by appellant, the administrator of the decedent’s estate, against the insurance ■company to recover work loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act. Preliminary objections in the nature of a demurrer were sustained and the complaint was dismissed because, the trial court held, a decedent’s estate was not a statutorily defined “victim” who was entitled to recover work loss benefits under the No-fault Act. The insurance company also argued, but the trial court found it unnecessary to consider, that the twelve year old decedent had not entered the work force and, therefore, had no calculable wage loss. This appeal followed.

These issues have been decided in favor of allowing recovery of work loss benefits by the estate of a deceased minor in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982). See also: Chesler v. Government Employees Insurance Company, 302 Pa.Super. 356, 448 A.2d 1080 (1982). For reasons stated in Freeze, we reverse the order dismissing appellant’s complaint in the instant case.

Reversed and remanded for further proceedings.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq.

      . By agreement of counsel, argument in this appeal was deferred pending decision in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), aff’g, 265 Pa.Super. 181, 401 A.2d 1160 (1979).


text:
    449 A.2d 63
    COMMONWEALTH of Pennsylvania v. Mark Arthur CLARK, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 6, 1981.
    Filed Aug. 6, 1982.
    Stanley M. Shingles, Philadelphia, for appellant.
    Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   PER CURIAM:

The parties hereto having agreed that the order of the trial court is in error according to our decision in Commonwealth v. Capone, 282 Pa.Super. 458, 422 A.2d 1383 (1980), the order of the trial court is reversed and the case is remanded to the trial court with instructions to enter an order expunging the arrest record of the appellant, Mark Arthur Clark.


author: HESTER, Judge: McEWEN, Judge,

text:
    449 A.2d 64
    COMMONWEALTH of Pennsylvania v. Widmark MITCHELL, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Widmark MITCHELL.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1981.
    Decided May 28, 1982.
    Reargument Denied Aug. 24, 1982.
    Petition for Allowance of Appeal Denied Nov. 15, 1982.

      Burton A. Rose, Philadelphia, for Mitchell, appellant (at No. 566) and appellee (at No. 590).
    Ellen Mattleman, Assistant District Attorney, Philadelphia, for Commonwealth, appellant (at No. 590) and appellee (at No. 566).
    Before HESTER, McEWEN and SHERTZ, JJ.
   HESTER, Judge:

The defendant-appellant was indicted for Murder, Robbery, Conspiracy and Weapons Offenses. The jury trial was delayed while the Supreme Court of Pennsylvania heard his pre-trial appeal on the issue of whether Rule 1100 of the Pa. Rules of Criminal Procedure was violated. The defendant-appellant lost on the pre-trial appeal and the case was remanded for trial on May 13, 1977.

The trial convened on May 25, 1977; however, a mistrial resulted. The defendant-appellant then appealed from an order denying his motion for a dismissal on double jeopardy grounds. This appeal was eventually rejected by the Supreme Court and a jury trial was finally commenced and completed.

On September 10, 1980, a jury found the defendant-appellant guilty of Murder of the Second Degree, Robbery and Possession of an Instrument of Crime. Post-trial motions were filed.

Both the Commonwealth and defendant-appellant, Widmark Mitchell, have appealed Orders filed by the Court of Common Pleas of Philadelphia County in response to the defendant’s post-trial motions. The Commonwealth has appealed the granting of the defendant-appellant’s motion for a new trial; the defendant has appealed the denial of his petition in arrest of judgment.

On July 6, 1975, the defendant-appellant and his co-felon, Donald Griffin, entered a house at 3135 Arizona Street, Philadelphia. The defendant, while armed with a handgun, demanded cash from Shirley McClennan. Also present in the house during the armed robbery were James Field, Jeffrey Hayes, William Curtis, Mrs. McClennan’s husband, L. C. McClennan and the victim, James Fulton. Blows were inflicted by the co-felons on Fields, Curtis and the victim; and, Fields and the victim were robbed as well. Without provocation, the defendant-appellant shoved the victim into a chair and fired a fatal shot into his chest. Before fleeing the scene, the co-felon forced Mrs. McClennan, Fields and Hayes to the basement.

In an effort to gain affirmance of the lower court’s granting of a new trial, the defendant raises several arguments, a few of which warrant our response. All are without merit; therefore, we reverse the order granting the new trial. We defer to that portion of the lower court’s opinion denying the motion in arrest of judgment. Consequently, we reverse in part and affirm in part.

Defendant-appellant argues first that a new trial is mandated by trial counsel’s failure to locate, interview and subpoena a witness, William Curtis. Curtis was present at the time the robberies, assaults and killing occurred and actually witnessed most of the criminal acts. After the criminal incidents, yet on the same day, Curtis issued two separate statements to the Philadelphia Police. In one statement, he stated that he had been cracked on the knees by a shotgun wielded by a tall, light-skinned black man. He further said that a small black man stood by the front door while the tall, light-skinned man fatally shot James Fulton in the chest, discarded the shot-gun onto the kitchen floor and shortly thereafter retrieved it. Both men, according to Curtis, then fled from the scene. The defendant-appellant fits the “small black man” description.

Later in that same day, Curtis issued his second statement to the police wherein he admitted to not actually seeing anyone fire at the victim. He did say, however, that the tall light-skinned man held a shot-gun while the short dark man carried no gun.

Defendant-appellant believes that both statements were exculpatory in regard to his case. He argues that the written statements were inadmissible as hearsay evidence; therefore, it was incumbent upon his trial counsel to secure Curtis’ presence as a witness at trial.

It is axomatic that the actions of criminal counsel cannot be deemed ineffective as long as such actions had some reasonable basis to effectuate the accused’s interest. Commonwealth v. Dancer, 460 Pa. 95, 103, 331 A.2d 435 (1975); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). It is not significant or determinative that the course chosen by counsel was, upon hindsight, less effective than other available trial tactics. Nor is it determinative that counsel himself admitted at the PCHA hearing that he neglected to secure Curtis’ presence because he relied on the Commonwealth’s assurances that it would produce Curtis for trial. Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980). Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971); Commonwealth v. Barren, 273 Pa.Super. 492, 417 A.2d 1156 (1979).

Defendant-appellant failed to demonstrate how his counsel’s choice to introduce Curtis’ statement as evidence had no reasonable basis whatsoever in effectuating his interest. At the hearing on the PCHA petition, counsel testified that he believed the statement would qualify as either an excited utterance or res gestae exception to the hearsay rule. It was not unreasonable for counsel to attempt to have the written statements admitted as hearsay exceptions in light of the fact that other witnesses and acquaintances knew nothing of Curtis’ whereabouts.

Defendant-appellant argues further that his trial counsel was ineffective because he neglected to object to the trial judge’s cross examination of defense witness and co-felon, Donald Griffin. The defendant-appellant believes that the interrogation by the court suggested to the jury the court’s own disbelief of defense testimony; therefore, a new trial was appropriately ordered. Commonwealth v. Seabrook, 475 Pa. 38, 379 A.2d 564 (1977); Commonwealth v. Watts, 358 Pa. 92, 56 A.2d 81 (1948). The trial judge’s interrogation may well have suggested his perception of Mr. Griffin’s veracity and sincerity; however, any such suggestion was negated by judge’s charge that the jury is the exclusive and final determining body of a witness’s credibility. Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924). Furthermore, we are not troubled by the possibility that the court’s interrogation strengthened the Commonwealth’s case. The primary purpose of all criminal proceedings is to ascertain the truth and the court’s obligation is to assist in pursuing that purpose. Commonwealth v. Patskin, 372 Pa. 402, 93 A.2d 704 (1953).

The defendant-appellant’s next argument is that his trial counsel was ineffective for failing to object to the court’s instruction with respect to causation. Specifically, the defendant-appellant argues that the court’s use of the “but for” test directed the jury’s attention to his actions only and not the acts of the victim or third party that may well have caused the death. In Commonwealth v. Kingsley, 480 Pa. 560, 391 A.2d 1027 (1978), the court instructed the jury on two occasions that the accused could be held guilty of either murder in the third degree or voluntary manslaughter only if they found that death would not have occurred but for the accused’s actions. The Kingsley court acknowledged that such a charge was incorrect since the accused’s actions need not be the only cause of death in order to arrive at a guilty verdict. Nevertheless, the Kingsley court read the entire charge as a whole, found it to be reasonable and concluded that no prejudice resulted from the use of the “but for” test. We look to the charge as a whole as well and conclude that the jury here was properly instructed on all other matters of law. Moreover, the “but for” charge could actually help the defendant-appellant if the jurors concluded that he could be found guilty only if he alone committed criminal acts causing Fulton’s death. The evidence revealed that Griffen committed criminal acts as well.

The final argument raised by the appellant-defendant that merits our response is that trial counsel was once again ineffective for failing to request a jury instruction on involuntary manslaughter. In Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), the Court held that an involuntary manslaughter charge shall be given in a murder prosecution only when requested, where the offense was made an issue in the case and where the trial evidence would reasonably support such a verdict. Since the appellant in White, supra, was undeniably engaged in a robbery, the act constituted nothing less than murder in the second degree; therefore, an involuntary murder charge was inappropriate. The trial evidence here does not reasonably support a verdict of involuntary manslaughter; the defendant-appellant engaged in armed robbery as well. Upon review of the statutory definitions of murder of the first and second degree and involuntary manslaughter, we cannot foresee a conviction of anything less than murder of the second degree. 18 Pa.C.S.A. §§ 2502, 2503 and 2504.

Reversed in part, affirmed in part.

The Order of the court below granting appellant a new trial be and the same is hereby reversed and we remand for the imposition of the appropriate sentence.

The Order of the court below denying appellant’s Motion in Arrest of Judgment is affirmed.

McEWEN, J., files a concurring opinion.

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

McEWEN, Judge,

concurring:

I concur in the excellent opinion of my learned and distinguished colleague, Judge John P. Hester, and, of course, his conclusion that the order granting a new trial should be reversed. Since I differ, however, so strongly with the decision to grant a new trial, even though I commend the abundance of concern of the distinguished Philadelphia Common Pleas Court Judge Theodore B. Smith for the proper protection of the defendant, it seems preferable that I express my reasons for reversing the order that a new trial be granted.

Appellant, in the post-verdict motions filed by present counsel, claims that trial counsel was ineffective for failing to locate, interview and subpoena William Curtis and that, as a result, a new trial should be granted. The Common Pleas Court granted that request for a new trial even though post-verdict motions counsel:

(1) failed to show that William Curtis was available for presentation by trial counsel as a defense witness in the initial trial;
(2) failed to himself produce William Curtis at the post-verdict proceedings;
(3) failed to otherwise demonstrate that the testimony of William Curtis would have been helpful to the defense;
(4) failed to demonstrate that William Curtis would be available for use as a defense witness at a subsequent trial.

Rather, as the brief of the district attorney notes “the only evidence presented at the post-verdict stage concerning Curtis’ potential testimony was the statements he gave the police.” (Brief of appellee at p. 13). A review of the two statements made by Curtis to the police on the day of the murder demonstrates that presentation of William Curtis as a witness would have been an exercise in futility.

The first written statement Curtis gave to the police, dated July 6, 1975, 8:55 a.m., indicates that the tall light skinned male (a description which matched that of the co-defendant appellant) shot the victim. Curtis further stated that the tall light skinned male threw the shotgun into the kitchen and then ran out the door with the other individual described as a “little black dude” who was said to be “standing in the door with a handgun.” The second written statement taken by the police from William Curtis on the same date at 12:15 p. m. indicates that Curtis “did not see anybody fire a gun at Jimmy, but the tall light skinned (sic) had a shotgun and hit me across the knees with it.” This second statement indicates that Curtis heard the shot but did not see who fired the shot as he said in the statement, “I think the guy with the shotgun shot Jimmy, but I am not sure.” The second statement also indicates that Curtis did not see the shorter man holding a gun.

When an appellant contends he was denied effective assistance of counsel, the task of this court encompasses first a determination of whether the claim that inspires the contention of ineffectiveness has arguable merit and only then, if we determine the claim has such arguable merit, do we determine if the course of representation conducted by counsel had some reasonable basis designed to effectuate the interest of the client.

The failure of trial counsel to present a possible witness is not per se ineffective assistance of counsel. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979); Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977). The failure of defense counsel to call a possible witness does not constitute ineffective assistance of counsel absent some positive demonstration that the testimony would have been helpful to the defense. Rhodes, supra: Charleston, supra. See Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Pittman, 295 Pa.Super. 234, 441 A.2d 436 (1982); Commonwealth v. Burrell, 286 Pa.Super. 502, 429 A.2d 434 (1981).

When we explore the question of whether the testimony of the absent witness would have been of value and helpful to the defense, we must consider: (1) the testimony of the absent witness would not ultimately have been of value, whatever the nature of his testimony, in view of the conflict which existed between the two statements that he had made to police on the day of the murder and in view of the fact that in the second of those two statements he indicated that he did not see the actual shooting; (2) the testimony of the two eyewitnesses to the shooting that appellant was the individual who shot the victim; (3) the testimony of the co-defendant of appellant which implicated appellant; (4) the testimony of the medical examiner that the fatal shot was fired from a .32 caliber gun (the weapon in the possession of defendant) and not a shotgun (the weapon in the possession of co-defendant); (5) the admission by appellant himself at the murder scene that he shot the victim when he stated to the sister of the victim (who was an eyewitness to the shooting) that, “I am sorry Shirley. I didn’t know that was your brother. I had to hurt somebody.” (N.T. 282).

It is clear beyond doubt that, even if the absent witness could have been found and presented as a witness during the defense, his testimony would not have been helpful or of value to the defendant. Therefore, we cannot say appellant was denied the effective assistance of counsel at trial and concur with the decision of the majority to reverse the Order granting appellant a new trial. See Commonwealth v. Warner, 277 Pa.Super. 598, 419 A.2d 1312 (1980); See also Commonwealth v. Ashley, 277 Pa.Super. 287, 419 A.2d 775 (1980). (The bare assertion of appellant that trial counsel was ineffective for failing to call a witness did not entitle appellant to post-conviction relief where the PCHA petition failed to indicate whether the witness was available to testify and further neglected to mention what the nature of the testimony would be); Commonwealth v. Bandy, 494 Pa. 244, 431 A.2d 240 (1981) (defendant was not denied effective assistance of counsel in entering a plea of guilty to murder and related charges even though counsel failed to interview witnesses to stabbing-murder and instead relied upon the apparent strength of the prosecutor’s file where statements of witnesses and co-conspirators were extremely damaging and defendant did not claim the existence of a possible defense which counsel failed to explore); Commonwealth v. Hoyle, 274 Pa.Super. 220, 418 A.2d 376 (1979) (defendant was not denied the effective assistance of counsel by attorney’s failure to interview potential witnesses because of the strength of the Commonwealth’s evidence based on the testimony of five eyewitnesses who directly implicated the appellant in the crime).

Our analysis of the facts of this case and the applicable principles of law compels the conclusion that the Order granting a new trial should be reversed. As a result, I need not here consider or discuss whether the failure of a defendant to testify at the trial is a factor to be weighed when a court in subsequent PCHA proceedings scrutinizes a claim of ineffective counsel.

I would reverse the Order of the Common Pleas Court granting a new trial, deny the motion for a new trial and direct the defendant to forthwith appear for the imposition of sentence upon the charge of murder in the second degree, the charges or robbery and the charge of possession of an instrument of crime.

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

      . Defense counsel further alleged that trial counsel was ineffective for failing to introduce at the trial of appellant the transcript of the testimony of William Curtis in the trial of appellant’s co-defendant Donald Griffin. However, present counsel did not establish at the post conviction hearing whether William Curtis actually testified in the trial of the co-defendant of appellant, nor did he produce any transcript of the testimony taken in that trial to substantiate his claim.


text:
    449 A.2d 69
    COMMONWEALTH of Pennsylvania ex rel. Sandra V. KISTLER v. George W. KISTLER, Jr. Appeal of Sandra V. KISTLER.
    No. 2182 Philadelphia, 1980.
    Superior Court of Pennsylvania.
    July 21, 1982.
   ORDER

PER CURIAM:

AND NOW, to wit, this 21st day of July, 1982, upon consideration of the Application for Relief in the Nature of a Request, 291 Pa.Super. 51, 435 A.2d 214 for Clarification of this court’s order of September 25, 1981, it is hereby ordered that said application is granted and the following clarification noted. The order of September 25, 1981 of this court reversed the August 26, 1980 order of the lower court. Because the August 26, 1980 order was itself retroactive to March 17, 1980, the effect of this court’s September 25, 1981 order is also retroactive to March 17, 1980.


text:
    449 A.2d 70
    COMMONWEALTH of Pennsylvania v. Anthony M. JOHNSON, Appellant.
    No. 2249
    October Term, 1979.
    Superior Court of Pennsylvania.
    Aug. 10, 1982.
   ORDER OF COURT

PER CURIAM:

AND NOW, to-wit, this 10th day of August, 1982, Appellant’s Petition for Permission to file Application for Reargument En Banc Nunc Pro Tunc is denied, Pa.Super., 441 A.2d 784.


author: BECK, Judge: WIEAND, Judge, WICKERSHAM, Judge,

text:
    449 A.2d 570
    COMMONWEALTH of Pennsylvania v. Ernest DICKERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1981.
    Filed April 23, 1982.
    Reargument Denied Sept. 17, 1982.
    Petition for Allowance of Appeal Denied Dec. 3, 1982.

      Terrence P. Cavanaugh, Erie, for appellant.
    Timothy J. Lucas, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

This is an appeal from an order of the court below dismissing appellant’s Motion to Quash the Indictment. Appellant premised his Motion to Quash upon a double jeopardy claim.

There are two charges of the Pennsylvania Vehicle Code, Title 75, involved in this appeal: 75 Pa.C.S.A. § 3731(a)(1) (driving under the influence of alcohol) and 75 Pa.C.S.A. § 3714 (reckless driving). Both charges arose from the same incident where appellant’s vehicle struck a parked car. The criminal complaint for Section 3714 was issued at the time of the incident; Section 3731 was charged the following day.

Appellant was permitted to plead guilty to Section 3714, and he asserts that such a conviction bars subsequent prosecution under Section 3731. He premises his argument upon 18 Pa.C.S.A. § 110 which states in relevant part:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title ... and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense....

In evaluating appellant’s case in the context of the above provisions, it should first be noted that under 18 Pa.C.S.A. § 109, a plea of guilty is a conviction. It is also clear that both charges resulted from the same episode. Both charges were likewise within the jurisdiction of the same court.

The central question to be asked, though, is whether by pleading guilty to the reckless driving charge, appellant acquiesced in the separation of the two charges. The cases relied upon by the Commonwealth involve situations where defendants either stood by while charges were severed or, indeed, requested such separation.

In Commonwealth v. Bartley, 262 Pa.Super. 390, 396 A.2d 810 (1979), defendant was responsible for the separation of charges by pleading guilty to one and waiving other charges into the Court of Common Pleas for jury trial. In Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975), the hearing judge separated the charges for different trials. Counsel did not object to the division of charges; rather, he agreed to that separation.

In those cases, this Court correctly held that defendant had waived his right to claim a violation of 18 Pa.C.S.A. § 110 because he acquiesced in the severance of charges for purposes of trial. In this case, the charges were not separated for purposes of trial. Instead, appellant was allowed to plead guilty to one of them. He consequently did not forego his right to argue under that provision that it was error not to try both charges together.

The Commonwealth claims here that appellant waived his claim to a Section 110 violation because he did not request a consolidation of the charges against him. That claim is also meritless. It is clear under Pennsylvania law that defendant is not required to move to consolidate in order to preserve his double jeopardy contention. That remains the Commonwealth’s burden. Commonwealth v. Holmes, 480 Pa. 535, 391 A.2d 1015 (1978).

The Commonwealth claims finally that under 18 Pa.C. S.A. 110(l)(iii)(A), a second prosecution will not be barred where:

the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil.

It is true, as the Commonwealth contends, that driving under the influence requires proof of facts not required by reckless driving. We find, however, that to prove reckless driving one need allege no new facts. The statute specifically requires that “each requires proof of a fact not required by the other.” That is not the case here.

The Commonwealth’s bald assertion that the evils addressed by each statute are dissimilar is plainly incorrect. Both provisions are aimed at drivers operating their vehicles in unsafe fashion, and both seek to obviate death or maiming on our highways.

We reverse the order of the court below and quash the indictment charging appellant with driving under the influence of alcohol.

WIEAND, J., files a concurring opinion.

WICKERSHAM, J., files a dissenting statement.

WIEAND, Judge,

concurring:

I concur in the result achieved by the lead opinion. I concur, however, because of the facts of the instant case and do not intend to suggest thereby that an accused can avoid prosecution for a more serious offense by the expedient of entering a plea of guilty to a lesser offense.

Section 110 of the Crimes Code, 18 Pa.C.S.A. § 110, was intended “to avoid harassment and oppression of citizens through repeated efforts of the authorities to obtain a conviction and to protect society’s interest in avoiding piecemeal, criminal litigation which drains judicial and professional resources.” Commonwealth v. Breitegan, 276 Pa.Superior Ct. 181, 187, 419 A.2d 155, 158 (1980). See also: Commonwealth v. Thornton, 247 Pa.Superior Ct. 94, 97-98, 371 A.2d 1343, 1345 (1977); Commonwealth v. Green, 232 Pa.Superior Ct. 134, 141-142, 335 A.2d 493, 496 (1975). This section was not intended to afford a defendant with a procedural expedient to avoid a prosecution. Commonwealth v. Bartley, 262 Pa.Superior Ct. 390, 396, 396 A.2d 810, 813 (1979).

In the instant case, Ernest Dickerson, the appellant, was involved in a traffic accident on January 12, 1980. The investigating police officer made out and delivered to appellant a citation for reckless driving, a summary offense. The issuing authority listed on the citation was “Traffic Court City of Erie.” On the following day, January 13, 1980, the same police officer appeared before a magistrate in the City of Erie and signed a complaint alleging that appellant had violated section 3731(a)(1) of the Vehicle Code [75 Pa.C.S.A. § 3731(a)(1) ], by driving while under the influence of intoxicating liquor. Pursuant to this complaint a summons was issued and served by certified mail on January 17, 1980. On January 25, 1980, appellant went to the Traffic Court office in the Erie Municipal Building and entered a plea of guilty to reckless driving by paying the fine and all costs. When he subsequently appeared before the magistrate for preliminary hearing on the misdemeanor charge, he moved to dismiss the charge under Section 110 of the Crimes Code.

The Commonwealth concedes, as it must, that both criminal charges arose from the same episode. By commencing separate charges before different issuing authorities, the police violated the intent of Section 110 by indulging in piecemeal, criminal litigation. Appellant, who had no duty to move to consolidate, was thus in a position in which he was compelled to defend separate charges before separate tribunals, even though there had been only one episode. By entering a plea of guilty to the charge pending in traffic court, he was responding properly to the citation and summary proceedings there pending. It cannot be said that appellant thereby waived the benefit of Section 110 of the Crimes Code or improperly took advantage of it to avoid prosecution for driving while under the influence of intoxicating liquor.

Accordingly, I am constrained to agree that the trial court’s order must be reversed and the information dismissed.

WICKERSHAM, Judge,

dissenting:

I dissent.

Commonwealth v. Carelli, 291 Pa.Super. 502, 436 A.2d 228 (1981).


author: WICKERSHAM, Judge:

text:
    449 A.2d 573
    Lawrence J. WALSH and Carmella Walsh v. PENNSYLVANIA GAS & WATER COMPANY, Appellant. Daniel TUCKER and Mary Tucker v. PENNSYLVANIA GAS & WATER COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed June 18, 1982.
    Reargument Denied Sept. 16, 1982.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.

      Joseph E. Gallagher, Scranton, for appellant.
    Roger Mattes, Scranton, for appellees.
    Before WICKERSHAM, VAN der VOORT and LIPEZ, JJ.
   WICKERSHAM, Judge:

On March 3, 1978 the appellees herein, Lawrence J. and Carmella Walsh and Daniel and Mary Tucker, filed a complaint in assumpsit and trespass for personal injuries and property damage allegedly caused by the explosion of a gas range Pennsylvania Gas & Water Company (hereinafter Company) sold to the Walshes. The two cases were consolidated for trial which began on March 19, 1979 before the Honorable James M. Munley and a jury. The jury found verdicts for the Walshes in the amount of $50,000 and for the Tuckers in the amount of $10,000. In addition to the general finding for the plaintiffs the jury responded to special interrogatories and found that Company breached an implied warranty of merchantability to the plaintiffs. The jury further found that Company was not liable on a common law negligence theory nor on a products liability theory.

On April 9, 1979 Company filed motions requesting a judgment N.O.V. or a new trial. The new trial was requested on the ground that the answers of the jury to the special interrogatories were inconsistent with the verdicts. Company also requested the court to mold the verdict returned so that it would be in its favor. In an opinion by Judge Munley dated January 21, 1980, the lower court en banc (consisting of Judges Munley, James J. Walsh and Edwin M. Kosik) denied the motions. Judgment was docketed and this appeal followed.

Trial testimony indicated that Lawrence J. Walsh and his wife, Carmella, lived at 413 Taylor Avenue in Scranton, Pennsylvania. They owned the building at 413-415 Taylor Avenue and rented one-half of the duplex to Mr. Walsh’s sister Mary Tucker and her husband, Daniel. In January of 1973, the Walshes bought a Roper gas range from Company who installed the range in the Walsh kitchen. After installation, the Walshes had problems with their appliance. The pilot light went out frequently and there was often a strong odor of gas in the house. Record at 13. The oven cracked and one of the glass panels in the oven door shattered. Record at 13-14.

On March 8, 1976, there was a fire in the Walsh kitchen. Mrs. Walsh testified that the stove exploded throwing her across the room. Record at 132. The explosion and subsequent fire so damaged the building at 413-415 Taylor Avenue that the Walsh and Tucker families moved out of the premises. Plaintiffs’ expert witness testified that the rear of the appliance continually leaked gas.

The jury retired with a set of special interrogatories. The questions drafted by Company were as follows:

Special Interrogatories to the Jury
Do you find in favor of the plaintiffs? Yes (X) No()
If your answer is no, disregard the remaining questions. If your answer is yes, answer the following:
1. Did the defendant fail to use due care in installing the range and/or in failing to test for the presence of leaking gas or to test the integrity of the system? Yes() No(X)
[Common Law Negligence Theory]
2. Did the defendant breach a warranty to the plaintiffs? Yes(X) No()
[Breach of Implied Warranty Theory]
3. Was the Roper range with its installation defective? Yes() No(X)
[Product-Liability Theory]

Reproduced Record at 208a.

Company frames its sole issue in this appeal thusly:
If a defendant gas company sells and installs a gas stove or range which three (3) years later allegedly explodes and sets fire to the buyer’s premises, and upon trial the jury returns a general verdict for the buyer but at the same time makes special findings that
1. the gas company was not negligent in installing the range or in failing to test for leaking gas or in failing to test the integrity of the system (common law negligence theory),
2. the range with its installation was not defective (product-liability theory), and
3. the gas company breached a warranty of merchantability and fitness for use but the buyer’s evidence is that there was no causal relationship between the breach of warranty and the ‘gas explosion’,
should judgment n. o. v. be entered for the gas company, or, in the alternative, should the general verdict be molded to read in favor of the defendant gas company?

Brief for Appellant at 3.

Company argues that plaintiffs’ entire case rests on proof that its improper installation of the range caused leaking gas to explode and that the jury’s answers to the special interrogatories reject such theory despite the general verdict for the Walshes and the Tuckers.

We first consider whether the court en banc erred in refusing to mold the jury’s verdict in Company’s favor. We have said:

The power of a trial judge to exercise his discretion in molding a verdict to fit the expressed desires of the jury is a cornerstone of the jury system. See e.g. Wadatz v. Taormina, 356 Pa. 481, 52 A.2d 220 (1947). In so exercising this discretion, however, the trial judge must tread with caution so as to avoid invading the province of the jury. May v. Pittsburgh Railways Co., 209 Pa.Super. 126, 224 A.2d 770 (1966).

Richards v. Dravo Corporation, 249 Pa.Super. 47, 58, 375 A.2d 750, 756 (1977).

While a judge may mold a verdict, the power to do so should be exercised only to express the intention of the jury. Interstate Creamery, Inc. v. Reinerth, 212 Pa.Super. 335, 243 A.2d 451 (1968). Review of the record before us shows jury findings for the plaintiffs below both generally and specially. When the intent of the jury is so plain we cannot say the lower court abused its discretion by refusing to mold the verdict in Company’s favor. As this court noted in Baldassari v. Baldassari, 278 Pa.Super. 312, 420 A.2d 556 (1980):

Generally, inconsistencies in jury verdicts are not permissible in civil actions in the Commonwealth. See Gross v. Lockwood Folding Box Corp., 443 Pa. 159, 277 A.2d 359 (1971); Interstate Creamery v. Reinerth, 212 Pa.Super. 335, 243 A.2d 451 (1968). Inconsistency mandating a new trial most often occurs when a jury returns a verdict assessing liability on the part of a principal while finding no liability on the part of the agent when the only foundation for the principal’s liability is the imputed negligence of the agent under the doctrine of respondeat superior. Compare Matkevich v. Robertson, 403 Pa. 200, 169 A.2d 91 (1961), with East Broad Top Transit Co. v. Flood, 326 Pa. 353, 192 A. 401 (1937). However, ‘every reasonably possible intendment is to be made in favor of the findings of a jury, and an inconsistency may justifiably be declared to exist only if there is no reasonable theory or conclusion to support the jury’s verdict’

Id., 278 Pa.Superior Ct. at 321, 420 A.2d at 561.

In this case there is evidence supporting the jury’s determination that Company breached an implied warranty of merchantability to the plaintiffs. Even assuming arguendo that the verdict was inconsistent, the lower court committed no error by not molding the verdict. When a jury returns an inconsistent verdict or a verdict against the weight of the evidence, the remedy is to strike the verdict and grant a new trial. Interstate Creamery v. Reinerth, supra.

Company also argues that its motion for judgment N.O.V. should have been granted by the lower court. In reviewing the denial of a motion for judgment N.O.V., the evidence together with all reasonable inferences therefrom must be viewed in a light most favorable to the verdict winner; all conflicts in the evidence are resolved in favor of the prevailing party. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). Evidence supporting the verdict is considered and the rest rejected. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). As we said recently, “A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper. ...” Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982).

Applying these tests to this case demonstrates that a judgment N.O.V. was correctly refused. Judge Munley explained the concepts involved in a suit on an implied warranty of merchantability in his charge to the jury:

. .. The plaintiff contends that the defendant made an implied warranty of the safeness, fitness and merchantability of what he supplied to the plaintiff. In this case that is the gas range. . . . The three questions in this area which you must decide under the theory are, therefore, No. 1, whether a warranty existed; 2, whether the defendant breached the warranty; and, 3, whether the breach of the warranty was a substantial factor in causing harm to the plaintiff. If you find in favor of the plaintiff on all three questions, you will return a verdict for the plaintiff. If you do not find in favor of the plaintiff on all three questions, then the plaintiffs could not recover under this theory of the case.
The law says that where the seller at the time of the sale has reason to know the specific use for which the buyer is purchasing the goods and the buyer is relying on the seller’s skill or judgment to select or furnish goods suitable for that use, an implied warranty is created that the goods will be fit for that particular purpose. A seller need not actually know the specific use for which the buyer is purchasing the goods or of the buyer’s reliance on the seller’s skill or judgment if the circumstances are such that the seller has reason to realize the purpose intended or that reliance exists. A merchant is a person who deals in goods of the kind involved in the transaction or otherwise by his occupation holds himself out as having knowledge or skill peculiar to goods involved in the transaction or one who employes others who by their occupation holds themselves out as having such knowledge or skill. If the seller is a merchant with respect to goods of the kinds sold, an implied warranty of merchantability exists; one, that the goods are of a quality comparable to that generally accepted in the trade under the description or designation of the goods and, two, that the goods are fit for the ordinary purposes for which such goods are used.

Jury Charge at 24-5.

From the evidence adduced at trial the jury properly could find that Company was a merchant with respect to gas ranges. Given that Company is a merchant the jury could then find that there was an implied warranty of merchantability; the range had to conform to generally accepted standards in the trade and had to be fit for use as a household appliance.

Plaintiffs’ evidence allowed the jury to decide that the range failed to conform to generally accepted standards; nor was it fit for use as a household appliance. Both Mr. and Mrs. Walsh testified to a strong odor of gas in their home from the time the range was installed until the explosion. Reproduced Record at 16a, 57a. In the opinion of plaintiffs’ expert witness, leaking gas was drawn into the heated oven where it ignited and exploded. Reproduced Record at llla-114a. As the court below stated in its opinion:

Even though the range may not have been defective for purposes of imposing strict liability under a products liability theory, and even though it may not have been negligently installed, it very obviously leaked gas after the installation and for a period of three (3) years prior to the explosion. This was evidence sufficient to support a breach of warranty verdict and its weight is for the jury.. . . The fact that the jury found that the leak was not the result of negligent conduct on the part of the Defendant or that the range was not defective when it left the Defendant’s control does not necessarily negate a finding that a leak subsequently developed in the line. Such a leak could reasonably be inferred from the testimony and the verdict winner must be given the benefit of this inference.

Lower ct. op. at 3-4 (citations omitted).

As Judge Munley ably stated in the above quoted portion of his opinion, the jury’s three special findings were not necessarily inconsistent with each other. Nor were the findings inconsistent with the general verdict; the jury found that Company breached an implied warranty of merchantability and accordingly awarded plaintiffs damages. Under these circumstances we believe the trial court correctly refused Company’s motions for a new trial or judgment n. 0. v.

Judgments affirmed.

      . It was of course within the discretion of the trial judge whether to permit the submission of special interrogatories to the jury. As the supreme court said in Willinger v. Mercy Catholic Medical Center, 482 Pa. 441, 445-6 n.4, 393 A.2d 1188, 1190 n.4 (1978):
      Generally, a trial judge may grant or refuse a request for specific findings on the basis of whether such would add to a logical and reasonable understanding of the issue. ‘To permit the jury to return special findings, where they are unnecessary, can create misleading issues and defeat justice.’ Greet v. Arned Corporation, 412 Pa. 292, 297, 194 A.2d 343, 345 (1963).


author: PRICE, Judge:

text:
    449 A.2d 577
    COMMONWEALTH of Pennsylvania ex rel. Rhoda COOK v. Albert COOK, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1980.
    Filed Aug. 6, 1982.

      Charles M. Golden, Philadelphia, for appellant.
    Lewis Kates, Philadelphia, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   PRICE, Judge:

The instant appeal is from an order directing, inter alia, enforcement of a prior support order entered by the court below. For the reasons stated herein, we affirm.

The circumstances leading to this appeal are these. Albert and Rhoda Cook were married in 1953. They are the parents of two children: Hillary, born February 16, 1957, and Jonathan, born January 2,1962. Appellant and his wife separated on or about January 1, 1968 and, on February 16, 1968, Mrs. Cook filed a complaint in the court of common pleas seeking support for herself and the two children. An order directing appellant to pay $1200 a month for the combined support of his wife and children was entered by the court below on July 1, 1968.

On July 11, 1972, the parties concluded a marital settlement agreement which provided, inter alia, that appellant would pay $200 a month for the support of the children and $1200 a month for the support of Mrs. Cook. The parties were divorced on September 1, 1972 and, on September 22, 1972, the court below modified the original support order by entering a new order incorporating the child support provisions of the marital settlement agreement.

On March 22, 1978, appellant filed a petition to reduce the amount of support, alleging that the parties’ daughter was emancipated. Appellee filed an answer, new matter, and a counterclaim to the petition, denying the daughter’s emancipation and seeking an increase in the amount of support. Before the matter could be heard by the court below, however, the parties resolved their differences, and, in a letter to the Honorable Robert W. Honeyman dated December 14, 1978, set out their resolution. Appellant agreed to withdraw his petition seeking reduction of the amount of support, and appellee agreed to withdraw her counterclaim for increased support upon the following conditions:

(a) The support as provided by the Order of this Court [dated September 22, 1972] and the payments as provided by the Agreement between the parties dated July 11,1972 shall continue without remission, reduction or abatement;
(b) On or before December 22,1978, the defendant shall pay to the plaintiff the sum of $500.00, pursuant to the terms of Paragraph 2 of the Agreement of July 11, 1972;
(c) On or before January 15, 1979, the defendant shall pay to the plaintiff the further sum of $500.00, pursuant to Paragraph 2 of the Agreement between the parties dated July 11, 1972;
(e) The defendant will make all payments required by him to be made pursuant to the Agreement of July 11, 1972 timely.

(Record at 73a-74a) (emphasis added). On December 15, 1978, Judge Honeyman entered an order incorporating the terms of the letter he received from the parties and dismissing appellant’s petition and appellee’s counterclaim. In addition, the chief domestic relations officer of Montgomery County and his assistants were directed to enforce the order. (Record at 74a). No appeal was taken from this order.

Despite the parties’ agreement on December 14, 1978, and the incorporation of the terms of that agreement in Judge Honeyman’s order of December 15, 1978, appellant thereafter failed to make the required monthly payments of $1200 for the support of his former wife. Accordingly, on May 4, 1979, appellee filed a petition to cite appellant for contempt and to enter judgment for the support arrearage. A hearing on the petition was held on June 13, 1979. Appellant, however, failed to appear and, at the close of the hearing, the court below issued a bench warrant for his arrest. On June 15, 1979, the court below issued an order which provided, in pertinent part, that:

1. The Order of this Court dated December 15, 1968 [sic: 1978] is a final Order for support entered by Agreement of the parties.
2. In accordance with that Order from which no appeal has been taken, the defendant was to pay to the plaintiff on the first day of each month, commencing January, 1979, the sum of $1400.00 as support for the minor son Jonathan Cook and was in addition to pay to the plaintiff for the same purposes the sum of $500.00 on or before April 15, 1979 and quarterly thereafter.
3. The defendant Albert Cook has made payments of $200.00 per month and as of the date of this Order is in arrears under the Order of December 15, 1978 in the sum of $7,700.00.
5. Final Judgment of the said arrearages in the amount of $7,700.00 is entered in favor of the plaintiff Rhoda Cook and against the defendant Albert Cook.
8. This Order and the judgment entered for the arrearages is independent of the bench warrant that has been issued by this Court by reason of the defendant’s willful failure and refusal to appear at the hearing on June 13, 1979, although the said defendant has submitted to the jurisdiction of this Court and was represented at the hearing by counsel of his choosing, whose appearance was entered generally.

(Record at 109a-110a). It is this order that appellant now challenges.

Appellant’s first and principal contention is that the court below lacked subject matter jurisdiction to enter and enforce an order directing payment of spousal support following the parties’ divorce. Arguing that his obligation to pay alimony to his former wife was created by the parties’ marital settlement agreement and thus was purely contractual in nature, appellant asserts that appellee’s proper remedy to enforce that obligation was not an action for support, but rather an action in assumpsit or in equity for specific performance. Appellant thus concludes that, in this action for support, the court below was without subject matter jurisdiction to enforce a private agreement providing for payment of alimony and, therefore, the order of June 15, 1979 was erroneously entered.

Had appellant raised this jurisdictional argument on direct appeal from the order of December 15, 1978, it might well have been favorably received. Prior to the enactment of the Divorce Code in 1980, it was well established that the substantive right of a spouse to support terminated upon entry of a final decree in divorce. Commonwealth ex rel. Werline v. Werline, 280 Pa.Superior Ct. 572, 421 A.2d 1080 (1980); Commonwealth ex rel. Smith v. Smith, 260 Pa.Superior Ct. 203, 393 A.2d 1224 (1978); Commonwealth ex rel. Jones v. Jones, 216 Pa. Superior Ct. 1, 260 A.2d 809 (1969). An obligation to support a former spouse could only be created by contract, and could not, therefore, be enforced in an action for support. Commonwealth ex rel. Werline v. Werline, supra; Commonwealth ex rel. Jones v. Jones, supra. The proper remedy was an action in assumpsit, Commonwealth ex rel. Platt v. Platt, 227 Pa.Superior Ct. 423, 323 A.2d 29 (1974); Commonwealth ex rel. Bonicker v. Bonicker, 205 Pa.Superior Ct. 191, 208 A.2d 14 (1965), or, in appropriate circumstances, in equity for specific performance. See Silvestri v. Slatkowski, 423 Pa. 498, 224 A.2d 212 (1966); Sarsfield v. Sarsfield, 251 Pa.Superior Ct. 516, 380 A.2d 899 (1977).

From these principles, it is at once apparent that the court below lacked jurisdiction of the subject matter to enter the order of December 15,1978, at least insofar as that order required payment of alimony. This is so because appellee’s substantive right to support from appellant terminated upon the parties’ divorce in September, 1972. Her contractual right to support from her former husband, created as it was by the marital settlement agreement, was thus unenforceable in this action for support. Commonwealth ex rel. Werline v. Werline, 280 Pa.Superior Ct. 572, 421 A.2d 1080; Commonwealth ex rel. Jones v. Jones, 216 Pa.Superior Ct. 1, 260 A.2d 809. Had appellant appealed from the order of December 15,1978, therefore, that order should have been vacated to the extent that it required payment of alimony.

The validity of the order of December 15, 1978 is not here at issue, however, since no appeal was taken from that order. The question posed in this appeal is whether the court of common pleas, having once ordered payment of alimony, was empowered to enforce that order in a subsequent proceeding notwithstanding its lack of subject matter jurisdiction. We believe the answer must be in the affirmative.

“[Although a court may have no jurisdiction over a particular subject matter, it may have jurisdiction to determine the question of its own jurisdiction, and an unappealed final determination of its subject matter jurisdiction—albeit erroneous—is res judicata as to those litigants.” Connellsville Township Supervisors v. City of Connellsville, 14 Pa. Commonwealth Ct. 532, 535, 322 A.2d 741, 742 (1974) (citations omitted). This principle, long recognized in this Commonwealth and other forums, reflects judicial concern for finality of judgments, even when said judgments have been rendered by a court without jurisdiction of the subject matter. See Hodge v. Hodge, 621 F.2d 590 (3d Cir. 1980), citing Restatement (Second) of Judgments § 15 (Tent. Draft No. 6, 1979). Styled the “bootstrap principle” by one commentator, it has been explicated thus:

[W]hen a court decides that it has jurisdiction in a case pending before it, its decision in favor of its own jurisdiction is res judicata and cannot be collaterally attacked. The court has jurisdiction to determine its own jurisdiction/ ] and hence its decision on this point is valid even if erroneous. That decision may be reversed on appeal, but if not, it is res judicata, and the issue of that court’s jurisdiction cannot again be questioned by the parties or their privies.

Dobbs, The Validation of Void Judgments: The Bootstrap Principle, 53 Va.L.Rev. 1003, 1241 42 (Part II) (1967) (footnote omitted). Furthermore, the issue of subject matter jurisdiction is res judicata even though it was not litigated in the first instance or, indeed, even though the matter was wholly uncontested. “[R]es judicata may be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, ‘but also as respects any other available matter which might have been presented to that end.’ ” Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329 (1940), quoting, Grubb v. Public Utilities Commission, 281 U.S. 470, 479, 50 S.Ct. 374, 378, 74 L.Ed. 972 (1930). See Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964).

Instantly, the court of common pleas tacitly determined that it had jurisdiction of the subject matter when it entered the order of December 15, 1978. That jurisdictional determination was not directly attacked by an appeal from that order, even though it was apparent on the record that the court below did not have subject matter jurisdiction. Accordingly, the court’s finding as to its subject matter jurisdiction, although erroneous, is res judicata as to these litigants, and cannot now be challenged in this appeal from the order enforcing the order of December 15, 1978. Cf. Commonwealth ex rel. Durso v. Durso, 292 Pa. Superior Ct. 94, 436 A.2d 1021 (1981) (court of common pleas had jurisdiction of subject matter to enforce private agreement concerning child support where terms of agreement were made part of court’s order by consent of parties at prior hearing on the matter).

Appellant’s other allegations of error are of no moment. First, his claim that the court below lacked in person-am jurisdiction because he was not personally served with appellee’s petition was not raised in appellant’s preliminary objections filed in response to the petition. (Record at 80a-81a). Preliminary objections are the exclusive means by which to raise the question of in personam jurisdiction, Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965); Encelewski v. Associated—East Mortgage Co., 262 Pa. Superior Ct. 205, 396 A.2d 717 (1978); Lox, Stock and Bagel, Inc. v. Kotten Machine Co., 261 Pa. Superior Ct. 84, 395 A.2d 954 (1978), and the failure to so raise the question of personal jurisdiction constitutes a waiver of that defense. Pa.R.C.P. 1032; Yentzer v. Taylor Wine Co., Inc., 409 Pa. 338, 186 A.2d 396 (1962); Encelewski v. Associated—East Mortgage Co., supra. Accordingly, appellant’s claim in this appeal that the court of common pleas lacked personal jurisdiction is waived.

Appellant also maintains that the court below abused its discretion by entering judgment for arrearages in the amount of $7,700 without support in the record. This contention is spurious. The record reflects that, as of June 13, 1979, the date of the hearing herein, appellant had made six monthly payments of $200 and, therefore, had failed to make payments totalling $7,700 due under the order of December 15, 1978. (N.T. 10, June 13, 1979).

Finally, appellant contends that the court below abused its discretion in issuing a bench warrant for his arrest when he failed to appear at the hearing on June 13, 1979. Appellant argues that: (1) the court lacked subject matter jurisdiction; (2) the court lacked in personam jurisdiction; and (3) the court was aware of the medical reason for appellant’s failure to appear at the hearing. See note 4, supra. We have already determined that the first two of these arguments are unavailing. With respect to appellant’s medical justification for his failure to appear, the record reveals that, when the court was informed on the day before the hearing that appellant was recuperating from a serious heart ailment, it offered to continue the matter if one-half of the support arrearage was paid. This offer was rejected. In these circumstances, we cannot hold that the court exceeded its authority in issuing the bench warrant the following day when, on the advice of his physician, appellant chose not to appear. See generally Commonwealth v. Peters, 178 Pa. Superior Ct. 82, 113 A.2d 327 (1955).

The order of June 15, 1979 is affirmed.

      . In addition to the monthly support payments, appellant agreed to pay his wife $100,000 in a lump sum upon the entry of a final decree in divorce within five months of the date on which the settlement agreement was executed. Monthly payments to Mrs. Cook would terminate in the event of her remarriage. Furthermore, monthly payments for the support of the children would be modified if either child married, completed college, or was emancipated. The agreement also provided for an increase to $800 a month in the amount of support for the children if Mrs. Cook remarried. (Record at 10a-14a).

      . Appellee’s promise to withdraw her counterclaim was also conditioned upon appellant’s payment of an outstanding balance of $97.17 on a debt owed a contractor. (Record at 74a).

      . Appellant also failed to make a quarterly payment of $500 required by the order of December 15, 1978 and the July 11, 1972 marital settlement agreement. He did, however, make monthly payments of $200 for the support of the two children.

      . On the day before the hearing, counsel for appellant requested a continuance of sixty days because his client was recuperating from a serious heart attack. The court below offered to continue the matter if appellant paid one-half of the arrearage. No payment was forthcoming, however, and the hearing was held as scheduled. At the hearing, appellant’s counsel informed the court that appellant had chosen not to attend the hearing on the advice of his physician. (N.T. 12, June 13, 1979).

      . Appellee commenced her action for support pursuant to the Act of June 24, 1939, P.L. 872, § 733, as amended, 18 P.S. § 4733, repealed and replaced by the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 4322.

      . The Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq. Section 501 of the Divorce Code authorizes the court to award reasonable alimony when it determines that the party seeking alimony lacks sufficient property for his or her reasonable needs and is unable to support himself or herself through appropriate employment. 23 P.S. § 501.

      . This conclusion is not altered by the fact that the order of December 15, 1978, was predicated upon, and incorporated, the terms of the agreement of the parties as set out in the December 14, 1978 letter to Judge Honeyman, and thus was entered by consent of the parties. It is axiomatic that subject matter jurisdiction cannot be conferred upon the forum by the consent of the litigants. Appeal of Kramer, 445 Pa. 238, 282 A.2d 386 (1971); Lashe v. Northern York County School District, 52 Pa. Commonwealth Ct. 541, 417 A.2d 260 (1980).

      . E.g., United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938); Hodge v. Hodge, 621 F.2d 590 (3d Cir. 1980); Dyndul v. Dyndul, 620 F.2d 409 (3d Cir. 1980); Bartron v. Northampton County, 342 Pa. 163, 19 A.2d 263 (1941); Strauss v. W. H. Strauss and Co., 328 Pa. 72, 194 A. 905 (1937); Pulaski Avenue, 220 Pa. 276, 69 A. 749 (1908); Kase v. Best, 15 Pa. 101 (1850).

      . It is perfectly clear that any court may hear a motion to dismiss the case at hand for want of jurisdiction. It has jurisdiction, then, to decide that it has no jurisdiction and to dismiss. But if a court has jurisdiction to decide one way about an issue, it has jurisdiction to decide the other way. If it has jurisdiction to decide correctly, it has jurisdiction to decide erroneously.. .. Therefore, under settled rules, if a court has jurisdiction to dismiss for want of jurisdiction, it has jurisdiction to retain the case. It may be error to dismiss or to retain the case; but in either event it has jurisdiction to decide the issue.
      Dobbs, The Validation of Void Judgments: The Bootstrap Principle, 53 Va.L.Rev. 1003, 1011-12 (Part I) (1967) (footnote omitted).

      , Appellant’s counsel was served with a copy of appellee’s petition to cite appellant for contempt and to enter judgment for support in arrears, and filed preliminary objections to the petition on June 13, 1979, the date of the hearing. Those objections, which were overruled by the court below, averred only that the court below lacked subject matter jurisdiction to enforce a private agreement providing for payment of alimony. Nowhere do the preliminary objections recite that personal jurisdiction was lacking. (Record at 80a-81a).

      . Pursuant to the order of December 15, 1978, appellant was required to make monthly payments of $1400, as well as quarterly payments of $500. See note 3 and accompanying text, supra. In rendering the order of June 15, 1979, the court below calculated the support in arrears by multiplying the balance unpaid each month ($1200) by the number of months from January, 1979, to June, 1979 (6), and adding the unpaid quarterly payment due on or before April 15, 1979 ($500).