author: KELLY, Judge:

text:
    532 A.2d 477
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael COLEMAN, Appellee.
    Superior Court of Pennsylvania.
    Argued May 13, 1987.
    Filed Oct. 16, 1987.

      Dan Fitzsimmons, Assistant District Attorney, Pittsburgh, for Com., appellant.
    Shelley Stark, Assistant Public Defender, Pittsburgh, for appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   KELLY, Judge:

The Commonwealth appeals from an order granting arrest of judgment and discharge following the conviction of appellee, Michael Coleman, of two violations of the Uniform Firearms Act. We vacate the order granting arrest of judgment, reinstate the verdicts of guilt, and remand for imposition of sentence.

FACTS

On March 6, 1986, at 7:30 p.m., appellee entered a crowded beer and pizza shop in Pittsburgh, Pennsylvania, produced a .32 caliber automatic pistol, and fired a shot into the ceiling. No one saw appellee actually fire the shot. However, the owner of the bar, George Gregory (hereinafter “the owner”), and the bouncer, James T. Moore (hereinafter “the bouncer”), turned instantly, and observed appellee with a gun in his upraised hand and smoke from the discharge encircling his head. (N.T. 7/30/86 at 9, 23, 25-7). The owner, who was familiar with guns, was able to identify the gun as a black metal .32 or .38 caliber automatic with a barrel length of three and one-half to four inches in length. (N.T. 7/30/86 at 10-11, 36). The bouncer, who had heard guns discharged before, testified that the noise sounded like a gunshot and that the gun was a dark colored automatic revolver. (N.T. 7/30/86 at 23-4). The owner was eight feet from appellee; the bouncer was ten feet away from appellee. (N.T. 7/30/86 at 15, 23). There was ample lighting in the bar. (N.T. 7/30/86 at 10).

Appellee lowered the gun, engaged the safety, and stuck the gun in the front of his trousers. (N.T. 7/30/86 at 12, 15, 24). The owner produced a .45 caliber revolver he kept in a drawer behind the bar. (N.T. 7/30/86 at 9). The owner and the bouncer escorted appellee out of the bar; a friend of appellee placed himself between appellee and the bouncer on the way out, thereby preventing the bouncer from disarming appellee. (N.T. 7/30/86 at 9, 24).

The owner testified that he watched appellee leave, called the police, talked to the police, the investigating officers arrived, and then the appellee returned and was arrested— all in fifteen seconds. (N.T. 7/30/86 at 9, 13-14). The bouncer, on the other hand, testified that fifteen minutes elapsed before appellee returned and was arrested. (N.T. 7/30/86 at 24-5, 27). The investigating police officer testified that on the night of the incident he was told by either the owner or the bouncer (he could not recall which) that appellee had been thrown out of bar, returned about fifteen seconds later and then left again and did not return until about ten minutes later, after the police had arrived. (N.T. 7/30/86 at 31, 33). Both the owner and the bouncer positively identified appellee at the time of arrest and again at the trial; neither exhibited the least hesitancy or doubt. (N.T. 7/30/86 at 14, 18, 25, 31).

Appellee was searched at the time of his arrest; no gun was discovered. (N.T. 7/30/86 at 31). A spent cartridge case from a .32 caliber automatic revolver was found under a cigarette machine about five feet directly behind where appellee had been standing with the gun in his upraised hand. (N.T. 7/30/86 at 31-32, 36, 45). The Commonwealth’s firearms expert testified that markings on the cartridge case indicated that the cartridge was struck by a rectangular and pointed firing pin distinctive of a few types of Spanish automatic loading pistols; there was an ejector mark on the cartridge case as well. (N.T. 7/30/86 at 46). Both the owner and the expert explained that a properly operating automatic revolver automatically expels the spent cartridge when the gun is fired. (N.T. 7/30/86 at 38, 45-47).

At the request of the police, the owner got a ladder and retrieved a slug from the plaster ceiling above the spot where appellee stood with the gun in his upraised hand. (N.T. 7/30/86 at 16, 32). The owner testified that he had never seen anyone else shoot into the ceiling before, and that his partner had never mentioned any such incident to him. (N.T. 7/30/86 at 20). The expert indicated that the slug was without rifling marks, and was probably the light core of a jacketed bullet; the weight of the fragment was consistent with that of a .32 caliber bullet. (N.T. 7/30/86 at 48). However, the expert conceded that he could not be certain that the spent cartridge case and slug came from the same bullet or the same gun. (N.T. 7/30/86 at 50). He also conceded that because lead is soft and grains can be lost as it strikes or passes through various objects, the slug could conceivably have come from a higher caliber bullet. (N.T. 7/30/86 at 48). Finally, the expert testified that although the age of the spent cartridge case and slug could not be ascertained with any degree of certainty, the spent cartridge case did not show signs of weathering conditions and the lead slug did not appear to be heavily oxidized. (N.T. 7/30/86 at 51).

Appellee was charged by information with: carrying a firearm without a license, 18 Pa.C.S.A. § 6106; former convict not to own a firearm, 18 Pa.C.S.A. § 6105; and recklessly endangering another person, 18 Pa.C.S.A. § 2705. On July 30, 1986, appellee waived his right to a jury trial and was tried by a judge. Following the presentation of the Commonwealth’s case, appellee entered a demurrer to each of the charges. The trial judge sustained the demurrer to the recklessly endangering another person charge but denied the motion as to the firearms charges. Appellee thereupon rested without presenting any evidence. The trial court found appellee guilty of both the firearms charges.

On August 5, 1986, appellant filed a motion in arrest of judgment which stated:

1. The Commonwealth failed to establish the defendant’s guilt as to Count I and Count II [the firearms offense] beyond a reasonable doubt.
2. In particular the Commonwealth failed to establish that the defendant had in his possession an operable firearm, as required by the Uniform Firearms Act.

On August 11, 1986, appellee was directed to present, at a hearing to be held on August 22, 1986, a concise, written statement of matters to be argued to the court at the time of argument. On August 22, 1986, appellee presented the court with a “Statement of the Issue Presented” which asserted that the Commonwealth failed to establish beyond a reasonable doubt that the gun, which the witnesses stated they saw in appellee’s upraised hand, was operable. {See also N.T. 8/22/86 at 3) (defense counsel states, “I perceive the issue to be whether there was sufficient evidence to establish the operability of the firearm.”).

Following argument the trial court concluded:

I don’t think the issue of operability which is a key element in the offense of a violation of the Uniform Firearms Act, can be made after my research of the law, and based on that I will grant a motion in arrest of judgment on this case.

(N.T. 8/22/86 at 15). An order memorializing this ruling was filed by the trial court the same day.

The Commonwealth filed timely notice of appeal on August 28, 1986. On September 2, 1986, the trial court directed the Commonwealth to file a concise statement of matters complained of on appeal and a brief in support thereof pursuant to Pa.R.A.P. 1925(b) within twenty (20) days. On September 8, 1986, the Commonwealth filed a brief containing a statement that the trial court erred in granting appellee’s motion to arrest judgment as the evidence was in fact sufficient to sustain the convictions, and argument in support of this contention. The trial court filed an opinion in support of its order granting arrest of judgment on November 3, 1986.

I.

Before we may address the merits of the Commonwealth’s appeal, we must address three challenges to the jurisdiction of this Court raised in appellee’s brief. Appellee contends: because there is no express statutory authority for this appeal, it must be quashed; no statute could authorize this appeal, because the arrest of judgment was an insufficiency finding; and, the Commonwealth may not appeal from the factual determination herein. We cannot agree. We shall discuss each of appellant’s contentions seriatim. »

A.

Appellant first contends that in absence of express statutory authorization, the Commonwealth has no right to take an appeal from an order granting an arrest of judgment and that this Court has no jurisdiction to entertain such an appeal. Appellee cites in support of this proposition United States v. Scott, 437 U.S. 82, 84, 98 S.Ct. 2187, 2190, 57 L.Ed.2d 65 (1978), and United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). Appellant argues that 42 Pa.C.S.A. § 742 does not constitute express statutory authority for an appeal in the instant case. See Commonwealth v. Drumgoole, 341 Pa.Super. 468, 471, 491 A.2d 1352, 1353 (1985); accord United States v. Wilson, supra, 420 U.S. at 336, 95 S.Ct. at 1018. Appellant argues further that the existence of express statutory authority for appeals by the Commonwealth in other circumstances indicates an intent by the legislature to prohibit such appeals. Appellee cites in support of this proposition Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979), the rules of statutory construction, 1 Pa.C.S.A. § 1901 et. seq., and the following examples of express statutory authorization for Commonwealth appeals: 42 Pa. C.S.A. §§ 9712(d); 9713(e); 9714(e); 9715(d); and 75 Pa.C. S.A. § 3731(e)(4, 5). (Appellant’s Brief at 3-4a).

Initially, we note that appellant’s reliance on United States v. Scott, supra, and United States v. Wilson, supra, is misplaced. Both federal cases cite United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892) in support of the proposition urged instantly. In United States v. Sanges, supra, the United States Supreme Court was called upon to determine whether express statutory authority was required to permit a writ of error to be taken from a federal district or circuit court to the United States Supreme Court. The Supreme Court noted that the “law of England on this matter is not wholly free from doubt,” but regardless of the English rule the “overwhelming weight of American authority” was that express statutory authorization was required in accordance with the common law. 144 U.S. at 314, 12 S.Ct. at 610. The Supreme Court reviewed decisions from numerous states in favor of the requirement of express statutory authorization and then discounted those decided against the proposition, stating:

In those states in which the government, in the absence of any statute • expressly giving it the right, has been allowed to bring error, or appeal in the nature of error, after judgment for defendant on demurrer to the indictment, motion to quash, special verdict or motion in arrest of judgment, the question appears to have become settled by early practice before it was contested.

144 U.S. at 316, 12 S.Ct. at 611. The Supreme Court then concluded “the common law as generally understood and administered in the United States” required express statutory authority for such appeals. 144 U.S. at 318,12 S.Ct. at 612. Thus, the proposition urged by appellee became accepted as part of the federal appellate law.

The Court did not, and under our federal system could not, impose this assessment of the state of the common law on the states which had come to a contrary conclusion. In United States v. Worrall, 2 Dallas 384, 393, 1 L.Ed. 426 (Pa.Dist.1798), Justice Chase explained:

If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England; and yet, it is impossible to trace when, or how, the system was adopted or introduced. With respect to the individual states, the difficulty does not occur. When the American colonies were first settled by our ancestors, it was held, as well by the settlers, as by the judges and lawyers of England, that they brought hither, as a birth-right inheritance, so much of the common law, as was applicable to their local situation, and change of circumstances. But each colony judged for itself, what parts of the common law were applicable to its new condition; and in various modes, by legislative acts, by judicial decisions, or by constant usage, adopted some parts, and rejected others. Hence, he who shall travel through the different states, will soon discover, that the whole of the common law of England has been nowhere introduced; that some states have rejected what others have adopted; and that there is, in short, a great and essential diversity, in the subjects to which the common law is applied, as well as in the extent of its application. The common law, therefore, of one state, is not the common law of another; but the common law of England is the law of each state, so far as each state has adopted it;____

(Emphasis added).

Therein lies the defect in appellee’s argument; this Commonwealth has never adopted the common law rule upon which appellee’s argument is predicated. Indeed, the rule was expressly rejected. In Commonwealth v. Capp, 48 Pa. 53, 56 (1864), our Supreme Court stated:

There is nothing in the disabling provisoes of the statutes to limit the right of the Commonwealth, and the powers of this court, whether deduced from the common law, from the old provincial Act of 1722, or from legislation under our state constitutions, are quite competent to the review of any judicial record, when no statutory restraints have been imposed. See Commonwealth v. Simpson, 2 Grant’s Cases 443.
It would be very strange if the Commonwealth might not appeal to her own tribunals for justice, without the special consent of certain of her own officers. The abuses and evils which would come from an indiscriminate indulgence of defendants cannot be expected to spring from the rare instances in which the sovereign would invoke the appellate jurisdiction, and hence no restraints have been imposed by statute upon the sovereign, and we will impose none by judicial construction.

Pennsylvania’s rejection of the common law rule was noted by the United States Supreme Court in Sanges, supra, 144 U.S. at 317-18, 12 S.Ct. at 611-612.

In Commonwealth v. Simpson, 310 Pa. 380, 383, 165 A. 498, 498-99 (1933), our Supreme Court explained further:

The first question which confronts us is the right of the Commonwealth to appeal, defendant contending that it has no such right, citing in support of his position the authorities set forth in the note. The criminal law must move forward to meet the new conditions which confront organized society if its law-abiding members are to be protected in their personal and property rights. Whatever the rule may have been in past decades, we think now when there is such wide latitude allowed those convicted of crime to appeal and have their convictions reviewed, there should be a liberalizing of the attitude towards the Commonwealth, where the defendant has been convicted, and the question ruled against the Commonwealth, as here, is purely one of law. This is what we intended when we said in Com. v. Wallace, 114 Pa. 405, 411 [6 A. 685], ‘For error in quashing an indictment, arresting judgment after verdict of guilty, and the like, the Commonwealth may remove the record for review without special allowance of the proper writ.’

(Footnote and emphasis omitted).

Thus, the absence of express statutory authorization for Commonwealth appeals from orders in arrest of judgment and similar issues of law results not from a legislative intent to prohibit such appeals but from the lack of necessity for such authorization. For one hundred and seventy-five (175) years appellate courts of this Commonwealth have properly entertained appeals by the Commonwealth from orders granting a defendant arrest of judgment. Commonwealth v. Taylor, 5 Binn. 277 (Pa.1812); Commonwealth v. Fitzhugh, 360 Pa.Super. 217, 520 A.2d 424 (1987). We have neither the authority nor the inclination to disturb this settled practice; the first jurisdictional challenge is rejected.

B.

Appellee’s second contention is that no statute could authorize the appeal herein because the arrest of judgment is an insufficiency finding. Appellee argues that when a trial court makes an insufficiency finding, the order arresting judgment terminates the initial jeopardy and state and federal double jeopardy proscriptions bar appeal or retrial. Appellee cites in support of this contention the opinion of this Court in Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984), rev’d sub nom. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), rev’d sub nom. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986).

Appellee’s argument fails to take cognizance of the crucial distinction between pre-conviction and post-conviction determinations of the sufficiency of the evidence made by the United States Supreme Court in Commonwealth v. Wilson, supra, and again in Smalis v. Pennsylvania, supra. In Commonwealth v. Fitzhugh, supra, after review and consideration of Wilson, Smalis and other relevant Supreme Court decisions, this Court explained:

Following the reasoning in [United States v. Wilson, supra, and Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) ], we find that an arrest of judgment entered following a jury verdict of guilt does not become the functional equivalent of a verdict of acquittal until a final appellate decision upon the legal sufficiency of the evidence is made in the defendant’s favor. A decision by an intermediate appellate court, including a trial judge entertaining post-verdict motions, does not terminate the initial jeopardy.

520 A.2d at 428. Appellee’s second jurisdictional challenge is without merit.

C.

Finally, appellee contends that the Commonwealth may not appeal the factual determination which ended the prosecution herein. Appellee argues that the actual holding of the trial court must be examined to determine the nature of the trial court’s order—whether it was a factual or legal determination. Appellee argues that the Commonwealth may only appeal pure questions of law and that the appeal in the instant case does not present such a question. Appellee asserts that the order granting arrest of judgment “was based upon a factual determination that the facts were insufficient to prove guilt.” (Appellee’s Brief at 10). (Emphasis supplied).

Appellee apparently misapprehends the nature and limits of a trial court’s authority to grant an arrest of judgment. “The question of the sufficiency of the evidence to sustain a verdict is in fact a question of law, and has been recognized as an area which permits an appeal by the Commonwealth from an adverse ruling.” Commonwealth v. Rawles, 501 Pa. 514, 519, 462 A.2d 619, 621 (1983). “The effect of a motion in arrest of judgment is to admit all the facts which the Commonwealth’s evidence tends to prove.” Id., 501 Pa. at 520, 462 A.2d at 622 (citing cases). “All of the evidence must be read in the light most favorable to the Commonwealth, which is entitled to all reasonable inferences arising therefrom.” Id.; see also Commonwealth v. Hanes, 361 Pa.Super. 357, 359-61, 522 A.2d 622, 623-24 (1987).

If indeed the trial court’s order arose from a factual determination that the facts were not sufficient to sustain the verdicts, then the trial court exceeded its authority. This Court explained in Commonwealth v. Gaither, 355 Pa.Super. 502, 504, 513 A.2d 1034, 1035 (1986):

It is clear that a trial judge has no more authority over a verdict in a non-jury trial than he does over a jury verdict. Following the recording of a verdict in a non-jury trial, the trial judge is limited to a consideration of post-verdict motions in arrest of judgment or the granting of a new trial. In a motion for arrest of judgment, the trial judge cannot alter the verdict based upon a redetermination of credibility or a re-evaluation of the evidence.

(citations omitted, emphasis added); see also Commonwealth v. Gaither, supra, 513 A.2d at 1037 (Wieand, J., concurring), quoting Commonwealth v. Nelson, 245 Pa.Super. 33, 38-9, 369 A.2d 279, 282 (1976). Thus, we find no merit in appellee’s third and final challenge to the jurisdiction of this Court, and we may now turn to consideration of the merits of the appeal.

II.

The Commonwealth contends on appeal that the trial court erred in finding that the evidence was insufficient to establish the operability of the firearm involved. Appellee responds that: Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973), supports the order of the trial court; and that the issue of operability was only one of a long list of questions the court entertained concerning the adequacy of the Commonwealth’s evidence. We agree with the Commonwealth that the trial court erred.

In Commonwealth v. Horshaw, 237 Pa.Super. 76, 346 A.2d 340 (1975), this Court stated:

... the appellant claims that the evidence did not indicate that the weapon involved was operable. The Commonwealth, however, need not show the weapon to have been operable until evidence of its inoperability has been introduced into evidence.

346 A.2d at 342. In Commonwealth v. Lee, 224 Pa.Super. 17, 302 A.2d 474 (1973), an en banc panel of this Court held that any evidence establishing that the defendant used an object which reasonably appeared to be a firearm is sufficient evidence to establish the use of a firearm “unless and until evidence is presented by either side establishing the inoperability of the gun involved.” 302 A.2d at 475; see also Commonwealth v. Fitzhugh, supra, 520 A.2d at 432.

Commonwealth v. Layton, supra, cited by appellee, does not support appellee’s contention. In Layton, our Supreme Court merely held that when all parties agree that the gun was not operable, then the presumption of operability described in Lee, supra (applied subsequently in Horshaw, supra, and Fitzhugh, supra) did not apply. See Commonwealth v. Layton, supra, 307 A.2d at 844. Such is not the case instantly; hence, Layton, supra, is inapposite.

The Commonwealth presented testimony from two witnesses who heard a gunshot, turned instantly, and observed appellee with a gun in his upraised hand and smoke from the discharge encircling his head. (N.T. 7/30/86 at 9, 23, 25-7). This evidence alone is sufficient evidence under Fitzhugh, Horshaw, and Lee to establish that appellee possessed a firearm. We find no evidence in the record establishing the inoperability of the gun. Appellee’s attempts to elicit testimony that the gunshot could have come from another gun or that the slug in the ceiling and the spent cartridge could have come from another incident were singularly unsuccessful. (N.T. 7/30/86 at 20, 27) (the testimony was that there had been no previous shooting incidents, and that appellee did not have enough time between the time the bouncer heard the shot and then saw the gun in appellee’s upraised hand for appellee to have reacted to the gunshot by drawing his gun). Moreover, when the facts of record (as set forth supra) are considered in the light most favorable to the Commonwealth, the sufficiency of the evidence to establish the operability of the revolver is readily apparent.

Appellee’s second argument in support of the trial court’s order—that operability of the firearm was only one of several issues as to which reasonable doubt existed—is without merit. The only issue properly preserved by a sufficiently specific post-verdict motion was the sufficiency of the evidence to establish the operability of the firearm. See Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Moreover, we note that upon review of the record, the briefs of the parties, and the opinion of the trial court, we find that the evidence viewed in the light most favorable to the Commonwealth is more than sufficient to sustain the verdicts as to each element of each of the firearms offenses.

CONCLUSION

Based upon the foregoing, we vacate the order granting arrest of judgment and discharge, reinstate the verdicts of guilt, and remand for imposition of sentence.

      . We note that Pa.R.A.P. 1925(b) does not authorize the trial court to require appellant to file a brief in support of the concise statement of matters complained of on appeal. However, the brief was filed and no objection was raised.

      . We address these challenges without benefit of a reply regarding these issues from the Commonwealth. No request was made pursuant to Pa.R.A.P. 2501 to respond to these issues.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    532 A.2d 484
    MENTZER & RHEY, INC., a Pennsylvania Corporation, Bob Mentzer Ford Inc., a Pennsylvania Corporation, and C. Robert Mentzer and Lucille F. Mentzer, His Wife, Individually v. Bruno FERRARI, Appellant, v. MENTZER & RHEY, INC., a Pennsylvania Corporation, Carl E. Fisher, an Individual, B. Ernest Long, Donald R. Rigone, David L. Robinson, and Wesley T. Long Trading and Doing Business as Fisher, Long, & Rigone.
    Superior Court of Pennsylvania.
    Argued June 16, 1987.
    Filed Oct. 14, 1987.

      Alan K. Berk, Greensburg, for appellant.
    Virginia C. Robinson, Pittsburgh, for appellees Mentzer & Rhey, Inc., Fisher, B. Ernest Long, Robinson and Wesley T. Long, appellees.
    James A. Beinkemper, Sr., Pittsburgh, for appellee Rigone.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

This is an appeal from the order of the trial court sustaining preliminary objections to appellant’s complaint to join additional defendants. The issue raised is whether attorneys who performed a title search for buyers of property may be properly joined as third-party defendants under Pa.R.C.P. 2252(a) when the buyers sue the seller for damages resulting from an allegedly fraudulently concealed and defective culvert and the attorneys failed to discover the existence of the culvert in their title search. We now affirm the order of the trial court.

Appellant Bruno Ferrari, the original defendant, sold a parcel of land located in Westmoreland County to Mentzer and Rhey, Inc., an auto dealership, in August of 1970. On August 16, 1984 a portion of the land located on Mentzer & Rhey’s used car lot collapsed, creating a dangerous hole. On September 20, 1985 Mentzer & Rhey filed an action for damages alleging the cause of the collapse to be a defective culvert constructed by Ferrari and also fraudulently concealed by him during the sales transaction. On June 9, 1984 Ferrari filed a complaint to join Fisher, Long and Rigone, the law firm representing Mentzer & Rhey in the property sale. The complaint alleged that Mentzer & Rhey’s lack of knowledge of the existence of the culvert was due entirely to the attorneys’ negligence in performing the title search and that therefore the proposed third-party defendant attorneys should be solely liable to Mentzer & Rhey for damages or in the alternative should be jointly liable with original defendant.

The additional defendants filed preliminary objections alleging misjoinder of a cause of action. The Honorable Joseph A. Hudock sustained the preliminary objections in an order filed on December 1, 1986. Ferrari filed an appeal from this order to this Court on December 10, 1986.

The litigants frame the issue as whether Pa.R.C.P. 2252(a) permits Ferrari to join plaintiff’s attorneys Fisher, Long and Rigone on the theory that the attorneys would be solely or jointly and severally liable for the damage to plaintiff’s land, if professional malpractice were to be found.

Rule 2252(a) states:

Rule 2252. Right to Join Additional Defendants

In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.

Pa.R.C.P. 2252(a). As amended in 1969, the rule enlarged the scope of additional defendant practice in Pennsylvania by allowing causes of action arising out of the same transaction or occurrence to be tried together, thus avoiding multiple lawsuits. Free v. Lebowitz, 463 Pa. 387, 344 A.2d 886 (1975). Courts have permitted joinder when the asserted liability of the additional defendant is related to the claim of the original plaintiff as well as if it is an unrelated claim which nevertheless “arises out of the same transaction or occurrence upon which the cause of action is based.” Svetz for Svetz v. Land Tool Co., 355 Pa.Super. 230, 234, 513 A.2d 403, 405 (1986) citing Township of Upper Makefield v. Benjamin Franklin Federal Savings and Loan Association, 271 Pa.Super. 399, 403, 413 A.2d 726, 728 (1979). This unrelated claim would be any cross claim that a first-party defendant would have against a second-party defendant that is based on a different cause of action from that upon which the plaintiff has sued. 8 Goodrich-Amram.2d § 2252(a): 8.1.

However, “[w]hile the 1969 amendment enlarges the kinds of causes of action which may be joined, it certainly does not eliminate the necessity of pleading a valid cause of action.” American Metal Fabrications Company v. Goldman, 227 Pa.Super. 284, 289, 323 A.2d 891, 894 (1974) (citation omitted); Accord Township of Upper Makefield, supra. Joinder is permissible only if the additional defendant “is or may be liable to the joining party on a cause of action arising out of the transaction or occurrence upon which the plaintiff’s cause of action is based.” Schladensky v. Ellis, 442 Pa. 471, 475, 275 A.2d 663, 665 (1971) (emphasis added).

We stand with the trial court upon the principle that “[t]he general rule [in Pennsylvania] is that an attorney will be held liable for negligence only to his client. In the absence of special circumstances, he will not be held liable to anyone else.” Smith v. Griffiths, 327 Pa.Super. 418, 425, 476 A.2d 22, 26 (1984). See also Worldwide Marine Training Corporation v. Marine Transport Service, Inc., 527 F.Supp. 581 (E.D.Pa.1981). Buttressing this rationale is Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983) in which the Supreme Court of Pennsylvania rejected a balancing test to establish the liability of third parties. Thus we retain the requirement that “[a party] must show an attorney-client relationship or a specific undertaking by the attorney furnishing professional services ... as a necessary prerequisite for maintaining [a suit].” Id., 501 Pa. at 58, 459 A.2d at 750. Therefore, because appellant Ferrari is not in privity with plaintiffs attorneys, he has no cause of action against them and thus may not, under Pa.R.C.P. 2252(a), join the attorneys as third-party defendants.

Even assuming a valid cause of action, however, defendant Ferrari could not join plaintiffs attorneys because the attorneys’ liability, if any, would be secondary to Ferrari’s primary liability. Secondary versus primary liability “depends on a difference in character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person.” Builders Supply Co. v. McCabe, 366 Pa. 322, 326, 77 A.2d 368, 370 (1951) (emphasis in original). Further, most germane to our case:

secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible.

Builders Supply, 366 Pa. at 328, 77 A.2d at 371 (emphasis added). Accord, Sirianni v. Nugent Bros., Inc., 509 Pa. 564, 506 A.2d 868 (1986). Applying this principle to the facts before us, the “character or kind” of liability that the law firm would incur is imputed to it because it is based on the legal obligation to perform a competent, non-negligent title search and a failure to discover a defect during that search. It is therefore secondary to the liability Ferrari would incur as the actual creator of the defect itself, the alleged fraudulently constructed and concealed culvert.

If the party sought to be joined as a third party defendant is secondarily liable to the original defendant, then the original defendant “may not require a party secondarily liable to be joined as an original defendant.” Eckrich v. DiNardo, 283 Pa.Super. 84, 89, 423 A.2d 727, 729 (1980). The rationale for this principle speaks to the very purpose of joinder:

While a party secondarily liable is entitled to indemnity for any damages he is compelled to pay from one who is primarily liable, the converse is not true. Therefore, at least where the liability of the party sought to be joined is secondary, Rule 2252 precludes joinder since the proposed additional defendant cannot be solely liable to the plaintiff, liable over to the original defendant, jointly or severally liable with the original defendant, or liable to him on a separate cause of action in the nature of a cross claim.

Id., 283 Pa.Super. at 89 n. 3, 423 A.2d at 729 n. 3. See also Jenkins v. American Dredging Co., 406 Pa. 145, 177 A.2d 451 (1962), where a motorist struck a pipe on a portion of a city street under exclusive control of a pipe installation company and the court barred the pipe company from joining the city under Pa.R.C.P. 2252(a). Defendant Ferrari, therefore, as the primarily liable party, could not, under Pa.R.C.P. 2252(a), join plaintiffs attorneys, the secondarily liable party. Ferrari would have no right to indemnity from the attorneys and joinder would thus be without purpose.

In light of our disposition of the joinder issue, it is unnecessary to address the personal liability issue raised by attorney Donald R. Rigone, partner in the law firm of Fisher, Long and Rigone, in his individually filed brief.

Judgment affirmed.


author: CERCONE, Judge:

text:
    532 A.2d 823
    Elissa Barbara Potter FACTOR v. Marvin W. FACTOR, Appellant. (Three Cases)
    Superior Court of Pennsylvania.
    Argued Feb. 25, 1987.
    Filed Aug. 24, 1987.
    Reconsideration Denied Nov. 2, 1987.

      Frederick Cohen, Norristown, and Charles V. Stoelker, Jr., Philadelphia, for appellant (at 2031, 2129 and 2353).

      Parker H. Wilson, Norristown, for appellee (at 2031, 2129 and 2353).
    Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

These consolidated appeals are from three orders of the lower court imposing sanctions against appellant, Mr. Factor, for contempt of court.

On January 17, 1985, the lower court entered a divorce decree which incorporated a property settlement agreement (“Agreement”) executed by the parties on December 14, 1984. On April 4, 1986, appellee, Mrs. Factor, filed a petition seeking to hold appellant in contempt for his alleged willful noncompliance with the terms of the Agreement. The contempt petition raised the following issues:

1. Failure to make a lump sum payment of $20,000 to Mrs. Factor;
2. Failure to comply with the obligations to pay alimony to Mrs. Factor;
3. Failure to pay for certain automobile expenses incurred by Mrs. Factor;
4. Failure to reimburse Mrs. Factor for medical insurance expenses incurred on behalf of herself and the parties’ children;
5. Failure to reimburse Mrs. Factor for medical expenses for the parties’ children not covered by medical insurance;
6. Failure to comply with provisions regarding payment for summer camp for the parties’ child, Jed;
7. Failure to reimburse Mrs. Factor for clothing expenditures for the parties’ children;
8. Failure to pay for therapy for the parties’ child, Jed;
9. Failure to pay for the education expenses for the parties’ child, Matthew;
10. Failure to reimburse the parties’ child, Jed, for ice hockey expenses; and
11. Failure to verify the existence of insurance coverage.

Following the filing of an answer by appellant, a series of hearings were held on the petition on June 9, June 26 and June 30, 1986. On July 9, 1986, the lower court issued an order finding appellant in contempt of various provisions of the Agreement and directing appellant, “in lieu of any fine”, inter alia, to reimburse appellee for all unpaid counselling and tutoring for their son Jed no later than December 31, 1986; to pay one-half of their son Matthew’s college expenses ($7000.00) forthwith and to pay the balance by January 1, 1987; and to pay $12,000.00 for Jed’s boarding school expenses in the manner required by the institution.

Because Mr. Factor failed to comply with the court’s order of July 9, 1986 as it concerned Jed’s education, Mrs. Factor filed a Motion for Sanctions and a Motion to Dismiss or Strike Mr. Factor’s request for post-trial relief. Following answer and hearing on August 6, 1986, Judge Salus entered the Order of August 6, 1986 granting the motion of Mrs. Factor to dismiss Mr. Factor’s motion for post-trial relief and imposing sanctions for failure to comply with the court’s Order of July 9, 1986.

Mrs. Factor filed a second motion for sanctions on August 15, 1986. This motion for sanctions concerned Mr. Factor’s failure to comply with the Order of July 9, 1986 regarding the education expenses of the parties’ son Matthew. After a hearing, the court entered its final order imposing sanctions on August 27, 1986.

Appellant has raised several issues for review by this court on appeal. They are:

1. Did the trial court lack subject matter jurisdiction to hear Wife’s Petition for Contempt?
2. Did the trial court err by issuing its July 9, 1986 Order whereby it found Husband in contempt and directed him to pay certain monies and perform certain acts on behalf of Wife and the children?
(a) Did the trial court err by hearing testimony and deciding the claim of Jed’s matriculation at boarding school in that the issue was never found in the pleadings nor was it an obligation under the parties’ Agreement?
(b) Did the trial court err in ordering Husband to pay $12,000 toward Jed’s education costs and to pay the tuition costs for Matthew at St. Lawrence University?
(1) Did the trial court err by ordering Husband to pay said tuitions without considering his parental right, as per the Agreement, to participate in the selection of schools?
(2) Did the trial court err by ordering Husband to pay said tuitions without considering his ability to pay?
(3) Did the trial court err by ordering husband to pay the costs of Jed’s tutoring?
(c) Did the trial court err by not considering Husband’s rights under the United States Constitution?
3. Did the trial court lack jurisdiction to conduct the hearings of August 6, 1986 and August 26, 1986?
4. Did the trial judge’s ex parte communications with wife and other violations of the Code of Judicial Conduct create such an appearance of impropriety as to require his own disqualification and reversal of orders as required by Cannon 3(C)(1)(a), and reversal of Orders?

1. Subject Matter Jurisdiction of the Court Below

Appellant contends that the lower court lacked subject matter jurisdiction to hear and decide appellee’s Petition for Contempt because the matters she sought to enforce arose from a comprehensive property settlement agreement (a contract) and not from a prior order of the court. We need only look to the Divorce Code of 1980, 23 P.S. § 102 et seq., to determine that appellant’s claim is without merit. Section 401(b), provides in pertinent part:

Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters, including the enforcement of separation agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt____

23 P.S. § 401(b) (emphasis added). The settlement agreement specifically provided that it be incorporated, but not merged, with the divorce decree for purposes of enforcement.

Appellant cites numerous cases to support his proposition that property settlement agreements voluntarily entered are contracts and should be enforced as such. Accord: Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Casper v. Casper, 359 Pa.Superior Ct. 559, 519 A.2d 493 (1986); Hollman v. Hollman, 347 Pa.Superior Ct. 289, 500 A.2d 837 (1985); Millstein v. Millstein, 311 Pa.Superior Ct. 495, 457 A.2d 1291 (1983); Commonwealth ex rel. Smith v. Smith, 260 Pa.Superior Ct. 203, 393 A.2d 1224 (1978). Each of these cases relied on by appellant involves the enforcement and/or modification of a support or property settlement agreement entered prior to the effective date of the Divorce Code, July 2, 1980. Therefore, those cases are not determinative of the issue at hand, see Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985); Casper v. Casper, supra, (support agreement entered prior to effective date of Divorce Code is not subject to its dicates); Hollman v. Hollman, supra, (“Also, the fact that the agreement here was created long before the Divorce Code of 1980, causes the Code to be inapplicable to this case.” 347 Pa.Superior Ct. at 299, 500 A.2d at 842), although we may look to them for understanding the need which prompted the enactment of section 401(b).

In defining the meaning of section 401(b), we are guided by the Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1501 et seq. That act provides that the object of all statutory construction is to ascertain the intent of the legislature, and that the legislature’s intent may be ascertained by considering the necessity for the statute, the mischief to be remedied, the object to be attained, and the consequences of a particular interpretation; that the legislature does not intend a result that is unreasonable, and intends to favor the public interest over any private interest. 1 Pa.C.S.A. §§ 1921(a), (c)(1), (3), (4), (6); 1922(1), (5); 1928(c).

In accordance with the provisions of the Statutory Construction Act, we initially note that Brown v. Hall, supra, and the plethora of cases following it, clearly indicates that the courts were in need of legislative guidance as to the exact issue at hand herein, that is, what enforcement mechanism should be followed by a party seeking to enforce the terms of a mutually agreed upon support or property settlement agreement. Sectin 401(b) provides that necessary direction: “Any decree granting a divorce ... shall include ... an order or orders determining ... any other related matter including the enforcement of separation agreements voluntarily entered into between the parties.” Section 401(c) further defines the divorce court’s jurisdiction thus:

In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purpose of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

23 P.S. § 401(c).

Additionally, the eighteenth paragraph of the parties’ agreement specifically stated that the parties intended to incorporate the agreement into the divorce decree for the purpose of enforcement. It reads:

In the event either Husband or Wife at any time hereinafter obtain a divorce in the cause presently or hereinafter pending between them, this agreement and all of its provisions shall be incorporated for the purposes of enforcement only, but not merged into any such judgment for divorce, either directly or by reference, (emphasis added)

By reading sections 401(b) and 401(c) in pari materia, it is clear that the lower court had jurisdiction to enforce the agreement in equity. Paragraph eighteen makes it clear that the parties intended the agreement to be enforced by such procedures as were pursued by appellee below. Accord: McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987) (court must look to the intent of the parties, by analyzing terms of the agreement, to determine whether they intended property settlement agreement to be enforced through procedures established in the Divorce Code). Therefore, we find no merit to appellant’s claim that the lower court lacked subject matter jurisdiction over this case.

2. Order of July 9, 1986

Following three days of hearings, the trial court entered an extensive order finding appellant in violation of the terms of the separation agreement and in contempt of court on certain of those violations. Appellant specifically challenges those parts of the order which require him to pay for his son Jed’s matriculation in a private boarding school, his son Matthew’s matriculation in St. Lawrence University, and the cost of Jed’s tutoring.

Appellant argues that the trial court’s admitted ex parte communication with appellee mandates that he be granted a new hearing on the issues previously enumerated.

On June 30, 1985, at the conclusion of three days of testimony, before rendering his decision, Judge Salus called appellee into his chambers. Neither appellant nor his counsel were present at that meeting which lasted approximately one half hour. At its conclusion, appellant’s counsel asked that the record be opened in order that he might register his objection to the ex parte communication. At that time Judge Salus admitted meeting with appellee and said he did so to elicit information upon which to base his decision. The conversation between appellant’s counsel and Judge Salus was as follows:

“Mr. Cohen: If your Honor please, I would have to ask a question for the record. As we were breaking up the hearing and about to leave a half hour ago, you called Mrs. Factor back into chambers to 'talk to her. My client and I both would like some indication—
The Court: I will tell you exactly what I did. I wanted to find out about Jed’s attendance factors by reason of his educational disabilities, because I wasn’t satisfied with the psychological—or any of the other things that I heard on the record—in terms of my queering [sic] and questioning his ability to go to a prep school away from home. I want to know his supportive needs, and I wanted to be assured from Mrs. Factor that he wasn’t being sent away for her convenience.
Mr. Cohen: My problem is, your Honor, when she relays that information to you in that fashion, I don’t have an opportunity, nor does my client, to know what was said or what was claimed, or to question her about it for— The Court: Well, you know what? All questions of mice and men are such that I have to deal with people and their testimony in court and their credibility. Now, I didn’t have the opportunity to see Jed. I am still up in the air about that. I’m not convinced that Jed should necessarily be sent away to school, nor am I convinced that he shouldn’t. I still have difficult situations and I’m not in a position to make those determinations. It may affect him in the future. I just felt that I didn’t have enough exposure to the thing to find out what the problem was. I want to find out what his independent factors were, in terms of his activities. I want to find out his ability to deal with his peers, and a lot of other things which all went to this ability to be independent, and I wanted to find out how he was with regard to his mother and his father, in terms of needing their support, versus the other children, in her assessment.”

Judge Salus issued the following order clearly relying on information he had gleaned dehors the record:

“AND NOW, this 9th day of July, 1986, after a full hearing over four separate Court sessions involving both professional and lay witnesses, and upon the Court’s own inquiry into matters relevant and not presented by either counsel and critical to the Court’s informed decision in the best interest of the parties herein and their children,____” (emphasis added)

It is difficult for this court to perceive any reason why Judge Salus engaged in this ex parte conduct. Without a doubt, he could have questioned appellee from the bench in an open courtroom and elicited the information he deemed necessary to his decision. Appellant is entitled to a fair hearing which encompasses, at the very least, the right to cross-examine witnesses. See Pubusky v. D.M.F., Inc., 428 Pa. 461, 239 A.2d 335 (1968); Rich Hill Coal Co. v. Bashore, 334 Pa. 449, 7 A.2d 302 (1939). In Pubusky, supra, the Supreme Court found that a denial of the parties’ “basic rights” to cross-examine witnesses and present relevant testimony required the vacation of a preliminary injunction decree. Accord: Ogontz Controls Co. v. Pirkle, 329 Pa.Superior Ct. 8, 477 A.2d 876 (1984) and Veneziale, et al. v. Raudenbush, 43 Pa.Commonwealth 263, 402 A.2d 295 (1979) (Both cases follow Pubusky). Appellant’s basic right to cross-examination was violated by the court below. Accordingly, we reverse that lower court’s order as it applies to the educational placement and tutoring needs of the parties’ sons Jed and Matthew. If the parties cannot amicably reach a decision on those issues, a rehearing shall be held before a judge other than Judge Salus.

3. Orders of August 6, 1986 and August 27, 1986

The final issue we must address is the status of two contempt orders issued by the lower court ordering appellant to comply with its disputed July 9th order. Appellant framed this issue in terms of whether the court had jurisdiction to hear appellee’s motions for sanctions as appellant had filed a timely appeal from the July 9th order and simultaneously posted with the Prothonotary of the Court of Common Pleas, Montgomery County, his Notice of Appeal to the Superior Court and a Supersedeas Bond in the amount of $30,000.00.

The order of August 6, 1986 imposed sanctions for appellant’s failure to comply with the court’s July 9th order as it ordered appellant to pay for the educational and tutoring expenses of his son Jed. The August 27, 1986 order imposed sanctions for appellant’s failure to comply with the July 9th order as regards payments for the educational expenses of the parties’ son Matthew.

Because we have reversed the July 9th order in all respects relevant to the orders of August 6th and 27th, the issue of their enforcement is rendered moot.

Accordingly, the order of July 9, 1986 is reversed in part, case remanded for rehearing before a judge, other than Judge Salus, if the parties cannot amicably resolve the issues. The orders of August 6, 1986 and August 27, 1986 are reversed. Jurisdiction relinquished.

      . A contingent issue generally found in these cases is whether the lower court has the jurisdiction to modify the mutually agreed upon arrangements or contracts. We need not address that issue in this case as both parties, and the lower court, agree that the court was simply enforcing the agreement as written and not attempting to modify its terms.

      . Appellee argues that appellant waived his right to raise this issue by failing to timely object to Judge Salus’ ex parte communications. Upon our review of the transcript, we conclude that appellant's counsel, while not saying "I object", clearly informed the court that he found the ex parte conversation objectionable and counsel set forth relevant reasons for his objection. The purpose of a timely objection is to put the court on notice of the alleged error and to afford the trial court an opportunity to take corrective action in rectification of its own trial error. See Fudala v. Leedom, 270 Pa.Superior Ct. 322, 411 A.2d 548 (1979). We find that this issue has been preserved for appellate review.

      . Because of our resolution of appellant’s claim on this issue, we need not address appellant's issues numbered 2(a), 2(b), and 2(c).

      . We are remanding this case for retrial before a different trial judge in order to protect the integrity of the judiciary from any appearance of impropriety. Accord: Commonwealth v. Darush, 501 Pa. 15, 25, 459 A.2d 727, 733 (1983) (Roberts, C.J., dissenting: "[Ejvery judicial proceeding must not only be fair; it must appear to be fair.") Because the trial court is sitting as a fact finder in this case, Judge Salus’ reliance on ex parte information taints the appearance of his ability to be impartial.
      We find guidance for the remand conditions we are imposing in Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261 (1963) (denial of habeas corpus reversed and record remanded for disposition before different judge despite record that shows no actual prejudice); Commonwealth ex rel. Armor v. Armor, 263 Pa.Superior Ct. 353, 398 A.2d 173 (1978) (remand for assignment of out-of-county judge or grant of change of venue despite review of record showing no actual bias).
      Finally, we note that we are not here finding that Judge Salus erred in not sua sponte recusing himself below. Appellant had not filed a motion for recusal so that issue is not properly before us. See Reilly by Reilly v. S.E.P.T.A., 507 Pa. 204, 489 A.2d 1291 (1985).


author: TAMILIA, Judge:

text:
    532 A.2d 828
    COMMONWEALTH of Pennsylvania v. Stephen LLOYD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1987.
    Filed Aug. 24, 1987.
    Beargument Denied Nov. 2, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
    Before GRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   TAMILIA, Judge:

On August 2, 1985, after a four-day trial, a guilty verdict against appellant was returned on charges of rape, statutory rape, indecent assault, and corruption of minors. After denial of post-verdict motions and appellant’s motion to reconsider sentence, appellant was sentenced to an aggregate term of imprisonment of eight and one-half (8V2) to seventeen (17) years. Appellant timely appeals the judgment of sentence. We affirm.

Appellant raises three issues for our review: 1) did the trial court err in admitting irrelevant and prejudicial evidence of appellant’s treatment for venereal disease; 2) did the trial court deny appellant his constitutional right to confrontation by refusing to allow appellant’s counsel an opportunity to review the victim’s psychiatric treatment records; and, 3) did the trial court improperly consider defendant’s refusal to admit his guilt when sentencing, thus violating appellant’s right to self-incrimination?

As to the first issue, appellant failed to preserve at trial (N.T. 8/1/85, pp. 4, 11-12), and in post-verdict motions his claim that the admittance of evidence of his history of treatment for venereal disease was improper due to its prejudicial effect (while preserving the relevance issue), therefore, that claim is waived. Only those issues included in post-verdict motions will be considered for appellate review. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Thier, 354 Pa.Super. 7, 510 A.2d 1251 (1986); sec Pa.R.A.P. 302. “One of the purposes of this rule is to afford trial courts the first opportunity to correct error or grant new trials where necessary and, thus, obviate the need for appellate review.” Monarch, supra, 510 Pa. at 146, 507 A.2d at 78. Here, the Honorable Ricardo C. Jackson only addressed the claim of relevancy (Slip Op., Jackson, J., 3/4/87, p. 5), and not a claim of prejudice. We will do the same. See Commonwealth v. Allen, 269 Pa.Super. 146, 409 A.2d 106 (1979) (where defendant objected only on grounds of relevance, he waived claims that evidence that he had gonorrhea and had infected the victim of a rape-murder was excludable because it was remote and prejudicial).

Admission or exclusion of evidence is a matter committed to the sound discretion of the trial court. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985). In order to be admissible evidence must be both competent and relevant. Commonwealth v. Hill, 340 Pa.Super. 155, 489 A.2d 889 (1985); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984). “Evidence is relevant if it tends to make more or less probable the existance of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value.” Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1249 (1984); see Commonwealth v. Haight, 332 Pa.Super. 269, 481 A.2d 357 (1984); Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983).

The record discloses that during the summer of 1983, appellant supervised a government-funded program, titled “Play Street”, in which the victim, six-year old Carol Williams, along with other children participated. Testimony centered on only three of the occasions in which appellant assaulted the child and committed various sex acts on her during that summer. On direct examination the victim’s mother, Geneva Williams, testified that the child had made complaints of vaginal problems after the summer of 1983 (N.T. 7/31/85, p. 33), further, on cross-examination the mother testified that she noticed her child scratching both her groin and rectal areas in July, 1983 (N.T. 7/31/85, p. 59). However, the mother did not become aware of what had happened to her daughter until November, 1983 when she first noticed a vaginal discharge from her daughter and, after taking her daughter to a hospital on November 15, 1983, was told by doctors that her daughter had been “touched” and that she had a venereal disease (N.T. 7/31/85, pp. 63-64).

In an attempt to show both the occurrence of the crime and the identity of the perpetrator, the Commonwealth introduced the venereal disease history of appellant through testimony of Geneva Smith, the clerical supervisor of the Philadelphia Public Health Department, and Dr. Jan Paradise, a board certified pediatrician with a specialty of sexually transmitted disease in children. Ms. Smith testified, from a review of the department’s medical records, that appellant was diagnosed as having syphilis on August 4, 1981 (N.T. 8/1/85, pp. 15-17). On June 13, 1983, appellant returned to the clinic and Ms. Smith testified that the records indicated he complained of pubic itching, recurring bumps, pain, and soreness of his genitalia and was prescribed medication (N.T. 8/1/85, pp. 18-19). Appellant tested negative for gonorrhea and syphillis during that visit (N.T. 8/1/85, pp. 27-28).

Upon direct examination Dr. Paradise, who reviewed the records of both the victim and appellant, testified it would be likely that a male with a medical history such as apellante would convey a sexually transmitted disease to someone with whom he had sexual intercourse (N.T. 8/1/85, p. 42), because such a male would be in a higher risk group of getting other venereal diseases (N.T. 8/1/85, pp. 44-45). Further, Dr. Paradise testified that a child who had intercourse with such a male would likely have a vaginal discharge (N.T. 8/1/85, p. 45). The doctor stated that a vaginal discharge in a female could be caused by gonorrhea or chlamydia (N.T. 8/1/85, p. 45). During cross-examination Dr. Paradise stated that although a child could have a vaginal discharge without any sexual abuse it would be “unusual” (N.T. 8/1/85, p. 74). Defense counsel did cross-examine Dr. Paradise on other possible causes for a discharge in a child besides sexual abuse (N.T. 8/1/85, p. 74-75). Most importantly, under cross-examination by defense counsel, when asked her opinion, without a case history, of what caused the discharge in the victim, Dr. Paradise responded that the most common cause of vaginal discharge in children before puberty would be gonorrhea (N.T. 8/1/85, pp. 75-76).

We find the introduction of the appellant’s venereal disease history both relevant and probative to the occurrence of the crimes of sexual abuse for which he was charged. Dr. Paradise disclosed that in her opinion the most common cause of a vaginal discharge in a child as young as the complainant would likely be a venereal disease, specifically gonorrhea. This coupled with Dr. Paradise’s testimony that a man with a medical history such as appellant’s could convey a sexually transmitted disease if he had intercourse tends to advance the inquiry as to whether a crime was committed and who the perpetrator was. The fact that appellant tested negative for gonorrhea in June, 1983 does not reflect so much on the relevancy of admitting the history as to the probability of his committing the crime. The possible exculpatory explanation that appellant was not the perpetrator of the crimes is a question for the finder of fact. We find no abuse of discretion on the part of the trial judge in admitting the evidence due to the evidence’s tendency, coupled with the expert opinion regarding it, to make more or less probable the existance of the material facts.

Next, appellant claims his constitutional right to confrontation was denied by the trial court’s refusal to allow appellant’s counsel an opportunity to review the victim’s psychiatric treatment records. After an in camera inspection of the records the trial court found they were not relevant, contained nothing of use to the defense, and did not suggest that the complainant was diagnosed as being delusional and/or hallucinatory, the stated reasons for appellant’s seeking the records. We find this review by the lower court adequate under the United States Supreme Court’s decision in Pennsylvania v. Ritchie, — U.S. —, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). See 11 P.S. § 2215 (restricting who may review child abuse reports to a court of competent jurisdiction, inter alia).

In Ritchie, the Court addressed the question of whether and to what extent a State’s interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant’s Sixth and Fourteenth Amendment right to discover favorable evidence. Reversing the Pennsylvania Supreme Court and finding that no Confrontation Clause infringement would be present if the trial court conducted an in camera inspection of the investigative reports concerning an abused child, the Court held in a plurality opinion:

The opinions of this Court show that the right of confrontation is a trial right, designed to prevent improper restrictions on the type of questions that defense counsel may ask during cross-examination____ The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel received wide latitude at trial to question witnesses____ In short, the Confrontation Clause only guarantees ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish.’ ... (Citations omitted; emphasis in the original.)

Ritchie, supra at — - —, 107 S.Ct. at 998-999, 94 L.Ed.2d at 54-55. Although the plurality found Justice Blackmun writing separately on this point and not agreeing with their limitation of the right of confrontation to trial, we find the plurality controlling because Justice Blackmun concurred in the Court’s judgment and its ruling that an in camera review by the trial court will adequately serve the defendant’s interest while saving the Commonwealth’s need to protect the confidentiality of those involved in child abuse investigations. Here, such a review has already taken place.

Lastly, we find appellant’s claim, that the sentencing court impermissibly considered appellant’s refusal to admit guilt when sentencing, waived for his failure to object during sentencing and failure to raise it in his motion for reconsideration of sentence. In order to have grounds for appellate review, all sentencing issues must be specifically preserved or raised either before the trial court, during the sentencing proceeding or in a motion for modification of sentence. Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777 (1985). While an issue of the legality of sentence imposed can be raised for the first time on appeal, Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983), here we are presented merely with the propriety of the sentence, which must be raised below. Additionally, after a review of the sentencing record, we conclude appellant’s claim is not preserved by a claim of ineffectiveness of counsel because it lacks merit. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth v. Frometa, 366 Pa.Super. 313, 531 A.2d 434 (1987).

Judgment of sentence affirmed.

      . Appellant’s post-verdict motion challenge to the medical evidence concerning appellant’s venereal disease history is contained in paragraph 3 of his motion, and reads in full: ”[t]he Court erred in allowing the introduction of medical records of a Stephen Lloyd in the Commonwealth’s case-in-chief without proper authentication or relevance."

      . Appellant testified that in addition to the dates disclosed by Ms. Smith’s records, he contracted gonorrhea in 1971 (N.T. 8/2/85, pp. 53-54).

      . The Court’s opinion in Ritchie examined the rights enumerated in the Confrontation Clause of the Sixth Amendment to the United States Constitution. Although Ritchie does not address the confrontation rights set forth in Article I, § 9 of the Pennsylvania Constitution, we believe for purposes of this case that those rights are sufficiently similiar to the Sixth Amendment to make Ritchie applicable.

      . As we stated in Mathis, supra, 317 Pa.Superior Ct. at 372, 464 A.2d at 368:
      By ‘illegality of sentence’ is meant that the sentence is, in and of itself defective: for instance, the offenses merged for purposes of sentencing ... or the court improperly sentenced the defendant as if he were convicted of an offense of a higher degree than he actually was ... or the sentence exceeded the permissible maximum. (Citations omitted.)

      . Note, appellant has also failed to preserve the sentencing issue as required by Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), thus, the issue is not properly before us and we cannot rule on the merits.


author: CIRILLO, President Judge:

text:
    532 A.2d 832
    In re ESTATE OF Susan A. REINERT, Deceased. Appeal of William BRADFIELD, Jr.
    Superior Court of Pennsylvania.
    Submitted June 8, 1987.
    Filed Aug. 28, 1987.
    Reargument Denied Nov. 5, 1987.

      William Bradfield, Jr., in propria persona.
    Michael F.X. Gillin, Media, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   CIRILLO, President Judge:

This is an appeal from a summary judgment entered in the Court of Common Pleas of Delaware County, Orphans’ Court Division, in favor of appellee, Estate of Susan A. Reinert (Estate). We affirm.

In a separate proceeding in 1981, appellant William Brad-field was convicted in the Court of Common Pleas of Delaware County of theft by deception and theft by failure to make the proper disposition of funds received. The funds received consisted of $25,000. He was sentenced and ordered to pay restitution of $25,000 to the Estate. Petitions for further review were denied by this court, the Supreme Court of Pennsylvania, and the Supreme Court of the United States. In a collateral criminal matter, appellant was convicted of the murder of Susan Reinert and her two children.

In the instant case, the Estate originally filed an action to recover assets in the orphans’ court in 1980. Hearings were held on the matter. Before the decision was rendered, the Estate filed a petition to reopen the hearing citing newly discovered evidence. At the time, Bradfield was being tried on the theft charges. Proceedings in orphans’ court were continued pending the result of the theft trial. Once Bradfield was convicted, the Estate filed a motion for summary judgment in the orphans’ court, requesting the return of the $25,000 to the Estate. This was granted based on Bradfield’s prior convictions. Bradfield appeals from the summary judgment.

We consider two issues on appeal: (1) whether the orphans’ court has jurisdiction to enter a general money judgment ordering appellant to return a specific sum of money which, after a prior criminal trial, was determined to have been stolen by him from the decedent; and (2) whether the orphans’ court can grant a summary judgment ordering appellant to return money which, after a prior criminal trial, was determined to have been stolen by him from the decedent, although there is no evidence that the money is still in his possession.

The jurisdiction of the orphans’ court is limited and is statutory in origin. Estate of Hahn, 471 Pa. 249, 252, 369 A.2d 1290, 1292 (1977); Jervis Will, 443 Pa. 226, 279 A.2d 151 (1971); In re Estate of Soupcoff, 329 Pa.Super. 130, 477 A.2d 1388 (1984). The orphans’ court is a division of the common pleas court. The courts of common pleas are provided for in our state constitution: “There shall be one court of common pleas for each judicial district— (b) having unlimited original jurisdiction in all cases except as may otherwise be provided by law.” Pa. Const, art. 5, § 5.

42 Pa.C.S.A. § 951 discusses court divisions and allows for a separate orphans’ court division for Delaware County. There is a mandatory exercise of jurisdiction given to the orphans’ court in 20 Pa.C.S.A. § 711: “... the jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division: ... The administration and distribution of the real and personal property of decedents’ estates____” 20 Pa.C.S.A. § 711. The orphans’ court division can also exercise non-mandatory jurisdiction over “____the disposition of any case where there are substantial questions concerning matters enumerated in section 711 (relating to mandatory exercise of jurisdiction through orphans’ court division in general) and also matters not enumerated in that section.” 20 Pa.C.S.A. § 712(3).

The official comment to Section 712(3) reveals that this section is intended to prevent multiple actions in various divisions of the court when there are several issues in a case, even if a certain issue would ordinarily be decided by a specific division. Official Comment to 20 Pa.C.S.A. § 712(3).

Once it is determined by Section 711 and 712 that the orphan’s court has jurisdiction to hear a case, then it has the same authority as the whole court. 42 Pa.C.S.A. § 952. Section 952 states: “... In a court of common pleas having two or more divisions, each division of the court is vested with the full jurisdiction of the whole court.” 20 Pa.C.S.A. § 701 also provides: “... [ejxcept as otherwise provided or prescribed by law, each orphans’ court division shall possess the powers vested in the whole court.” 20 Pa.C.S.A. § 701, noted in Estate of Gilbert, 342 Pa.Super. 82, 492 A.2d 401 (1985) (citing Guerin v. Guerin, 296 Pa.Super. 400, 400 n. 3, 442 A.2d 1112, 1113 n. 3 (1982)).

Thus, we conclude that the orphans’ court clearly has the power to render the judgment entered in this case. As discussed above, the orphans’ court has the same authority that is vested in the whole court, 42 Pa.C.S.A. § 952; 20 Pa.C.S.A. § 701, and is specifically granted jurisdiction over decedents’ estates. 20 Pa.C.S.A. §§ 711, 712. In fact, it is mandatory for the orphans’ court to decide this matter because it concerns the administration of personal property of the Reinert Estate. 20 Pa.C.S.A. § 711.

With respect to the second issue raised, we find that the hearing court correctly based its decision on appellant’s prior criminal conviction. When reviewing a trial court’s entry of a summary judgment, the appellate court may reverse the trial court only when there has been a manifest abuse of discretion or an error of law. Peters Township School Authority v. U.S. Fidelity and Guaranty, 78 Pa. Commw. 365, 369-70, 467 A.2d 904, 906 (1983).

In order to evaluate the granting of a summary judgment, the appellate court applies the same standard that is used by the trial court. The court must accept as true all of the non-moving party’s well pleaded facts and the non-moving party has the benefit of all of the reasonable inferences arising from those facts. To uphold a summary judgment, there must be an entitlement to judgment as a matter of law and an absence of genuine factual issues. Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983).

Our supreme court has held that in a civil suit, a prior felony conviction for extortion is conclusive evidence of the fact that the extortion occurred. Hurtt v. Stirone, 416 Pa. 493, 499, 206 A.2d 624, 627 (1965). In Hurtt, the court reasoned that the defendant had ample opportunity to defend the charges against him in the criminal case, where he was protected by a presumption of innocence. Id., 416 Pa. at 498, 206 A.2d at 626. Also, the defendant would surely offer his strongest defense, understanding that his property and liberty interests were at stake. Id., 416 Pa. at 499, 206 A.2d at 627. In Hurtt, the defendant was found guilty of extortion beyond a reasonable doubt. Id., 416 Pa. at 498, 206 A.2d at 626. Therefore, the court concluded that to hold that the prior jury’s verdict had no effect would be unreasonable and would constitute an indictment of our jury system. Id., 416 Pa. at 498, 206 A.2d at 626. The Hurtt court reasoned that the defendant should not be given a second chance with a different jury. Id., 416 Pa. at 499, 206 A.2d at 627. The court also stated that the defendant gained financially from his crime, and consequently his felony conviction would bar any attempt to avoid restitution. Id. 416 Pa. at 498, 206 A.2d at 626.

Where, as here, there is a prior criminal conviction which arose from the same set of facts as the present civil action and the finding on those facts is central to the issue in the instant civil action, a summary judgment may be granted. See Agsco Equipment Corporation v. Borough of Green Tree, 297 Pa.Super. 33, 443 A.2d 284 (1981). However, when there is an outstanding issue of material fact which can only be resolved by trial, a summary judgment will not be granted. Kane v. Hilton, 78 Pa.Commw. 365, 468 A.2d 1160 (1983) (extortion convictions are conclusive proof of defendant’s acts for a civil proceeding seeking restitution, but whether the sums extorted resulted in Commonwealth’s paying an increased cost of insurance is an outstanding issue of material fact precluding a summary judgment).

We are satisfied that our decision does not violate appellant’s rights. Appellant, as in Hurtt, knew that his property and liberty interests were at stake when he was defending himself on the theft charges in his criminal trial. As a result of his conviction, he was ordered to return the $25,000.00 to the Estate and was sentenced to a term in jail. He had ample opportunity to be heard on this matter and cannot now relitigate it. Bradfield’s felony conviction for theft is conclusive evidence upon which the orphans’ court properly relied in granting the Estate’s motion for summary judgment in its action to recover assets. Bradfield gained financially from his crime and his conviction bars him from avoiding restitution to the Estate.

The burden of proof in a criminal case is a more difficult standard to meet than the burden of proof in a civil case. A criminal case requires proof “beyond a reasonable doubt,” whereas the burden of proof in a civil case is “by a fair preponderance of the evidence.” Shearer v. Insurance Co. of No. America, 156 A.2d 182, 397 Pa. 566 (1960).

Bradfield was convicted of theft beyond a reasonable doubt. Thus the proof exceeded the standard required in the present civil action. The appellant’s criminal conviction for theft and the instant case obviously stem from the same set of facts. Appellant was convicted of theft and the Estate now requests the return of the stolen money, as ordered by the court in the criminal case. Appellant has already had an opportunity to put his case before a jury.

Based upon the foregoing, there is no factual issue in this case and the Estate is entitled to summary judgment as a matter of law.

Therefore, the judgment of the trial court is affirmed.

ORDER AFFIRMED.

      . In his pro se brief, appellant raises three issues. Since the first and third issues are basically the same, we have consolidated them.

      . Appellant claims that the judgment was improper because no evidence was offered to show that he continued to possess the money, and that appellee never traced the assets "into other assets which he possessed.” Appellant offers no legal support for this claim.

      . Appellant claims that before entering a summary judgment, the court must show that the $25,000.00 is still in his possession. He again offers no legal support for this argument.