text:
    461 A.2d 253
    Linda Lee SUPKO, Appellant, v. Paul Robert MONOSKEY.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1983.
    Filed May 27, 1983.
    Timothy E. Durant, Clearfield, for appellant.
    John R. Carfley, Philipsburg, for appellee.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   POPOVICH, Judge:

Appellant, the natural mother of four children, is appealing an order of the trial court which dismissed her “PETITION FOR CUSTODY”. We must reverse and remand the matter for the reasons herein stated.

The following facts are undisputed:

Appellant and appellee, the natural father, were married in 1969 and are the parents of four children: Paul Monoskey, Jr., now thirteen years of age; Joseph Monoskey, eleven years of age; Wendy Monoskey, nine years of age; and Robbie Monoskey, eight years of age. On September 22, 1977, the parties were divorced and agreed in writing, each with advice of counsel, that appellee would have custody of their four children. Visitations were arranged between the parties until the mother decided to retain the children after one of the visits.

On December 3, 1980, appellant, Linda Lee Supko, who has since remarried, filed the instant custody petition. After a hearing, the trial court awarded custody to appellee, Paul Robert Monoskey, Sr. This appeal followed.

In this appeal, appellant raises the following issues: (1) whether the trial court’s findings, discussion, and opinion failed to provide a sufficient basis upon which to base a determination of custody; (2) whether the trial court failed to consider adequately all relevant facts in reaching its determination contrary to the best interests of the children; (3) whether the trial court erred in failing to consider the preferences of the two older children; and (4) whether the trial court placed undue emphasis on the fact that appellant retained the children after a period of visitation to the detriment of due consideration of other factors.

After the hearing, the trial court entered the following formal findings of fact:

“1. [Appellant]-mother left the domicile of the parties on June 5, 1977, and immediately proceeded to cohabit with Paul [Supko].
2. Except for visitations with the mother, agreed to by the parties, the children continued to live with [appellee]father until retained by the mother on one of the visits, at the direction of her present attorney, and in disregard of the order of limited visitation entered by Honorable John K. Reilly, Jr. of this court.
3. The only attacks upon the fitness of [appellee] were allegations of (a) a drinking problem that [appellee] once had until some six months before the mother left the domicile; and (b) that [appellee] had not provided proper medical care for the children.
4. [Appellee] has not used intoxicants since December, 1976; and there was proper medical care of the children at all times.
5. Divorce proceedings were instituted on June 24, 1977; the mother being represented by her present attorney, Timothy Durant, Esq., and the father by Ira Smades, Esq.
6. In the course of negotiations, attorney Smades prepared and submitted a custody and property settlement agreement which was accepted by the parties and duly executed.
7. No dispute has arisen as to the division and transfer of property.
8. The agreement provided, inter alia, that ‘under the circumstances existing at the present time’ the husband shall be entitled to custody of all the children, but that the wife shall enjoy liberal rights of visitation as shall be agreed upon by the parties.
9. The father also assumed full and sole duty to support their children.
10. The agreement further provided that in the event the parties should be unable to agree as to visitation, either ‘may apply to the appropriate Court having jurisdiction for such order or orders relating thereto as the Court shall determine.’
11. No similar term to that set forth above was provided as to custody.
12. The care given by the father to the children has been wholly adequate, despite claims of the mother to the contrary.
13. No testimony established any change in circumstances which could be considered at all detrimental to the interests or the welfare of the children.
15[sic]. The mother filed a petition for additional visitation; and after hearing, Honorable John K. Reilly, Jr. ordered limited visitation rights, with custody remaining in the father.
16[sic]. Thereafter, the mother obtained the children for a visit, but on direction of counsel failed and refused to return them to the father.
17[sic]. The father filed a petition against the mother seeking an order of contempt for violation of Judge Reilly’s visitation order; said petition being filed on November 26, 1980, and hearing fixed for January 14, 1981.
18[sic]. Prior to hearing upon the petition for contempt, the mother’s attorney filed the instant one for custody.
19[sic]. The mother is in contempt of the order entered by Honorable John K. Reilly, Jr.
20[sic]. There is no factual basis for the court to change custody from the father to the mother.
21[sic]. There is factual basis for continuing in the mother the prior order for limited visitation.” (Emphasis added) Record at # 9.

From the above facts, the court determined that “this agreement for custody, followed by Judge Reilly’s order as to visitation, should be sustained and enforced.” Trial Court Opinion at 4.

We, however, are unable to engage in a comprehensive review of the record because the record is incomplete.

Generally, in contested custody cases, this Court has applied the following standard of review:

“It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.
Parks v. Parks, 284 Pa.Super. 400, 406-07, 426 A.2d 108, 111 (1981).

At this stage of the proceedings, we cannot in good conscience exercise our appellate function because this Court is unable to decide on the present state of the record, the applicable standard of review. Appellee alleges that custody was “implicitly” confirmed previously:

“[o]n March 1, 1978, Judge Reilly issued an order granting the mother visitation rights while implicitly confirming custody of the children in the father, Paul Robert Monoskey. Prior to the hearing, [the] Court ordered home studies were completed by the Children and Youth Services division of the Domestic Relations Office of Clearfield County, Pennsylvania. (R 340a-343a). These studies were presented to the Court and considered by the Judge in his determination of the visitation petition on March 1, 1978.” Brief for Appellee at 2. (Emphasis added).

On the other hand, appellant counters with the following argument:

“[p]rior to the hearing and decision in the present action, there was no formal custody proceeding nor was there an actual custody order. The visitation proceeding was only to enforce visitation pursuant to the parties[’] agreement and the Order of March 1, 1978 was not a Court decision and order on custody.” Brief for Appellant at 20. (Emphasis added).

The order of March 1, 1978, provided for the following:

“NOW, this 1st day of March, 1978, this matter coming before the Court upon a Petition for Visitation, upon agreement of the parties, it is the ORDER of this Court that the Petitioner shall have the right to visit with her Four (4) Children in her home on every other weekend commencing at 9:00 o’clock a.m. Saturday, until 5:00 o’clock p.m. Sunday, and for two two-week periods each summer, to coincide with the summer vacations of said children; that period is to be agreed upon by the parties. Further periods of visitation to be as agreed upon by the parties.
BY THE COURT,
/s/ John K. Reilly, Jr.
President Judge”
“Defendant’s Exhibit C.”

The proceedings surrounding the March 1, 1978 order are significant because a more restrictive standard of review governs petitions to modify an extant custody award. See Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 39-42, 446 A.2d 1323, 1324-5 (1982). This particular standard has been articulated as follows:

“Under current case law, the party seeking modification of a custody award continues to have the burden of proving a substantial change in circumstances which will justify the court’s reconsideration of the extant custody award. [Commonwealth ex rel. Zaubi v. Zaubi] Zaubi I [275 Pa.Super.Ct. 294, 418 A.2d 729 (1980) ]. However, once a substantial change has been established, both natural parents share equally the burden of demonstrating with which parent the children’s best interests will be served. In re Custody of Frank, 283 Pa.Super.Ct. 229, 423 A.2d 1229 (1980); accord, Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super.Ct. 63, 434 A.2d 130 (1981). This standard of proof recognizes that to protect [the] children’s best interests the courts must assess evidence without reliance upon presumptions that prevent the natural parents from standing in pari causa. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); Oxenreider; Rummel v. Rummel, 263 Pa.Super.Ct. 97, 397 A.2d 13 (1979); In re Hernandez, 249 Pa.Super.Ct. 274, 376 A.2d 648 (1977).” Id.

This Court also has recognized that:

“[although an agreement between parties as to custody is not binding upon the court, Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Super.Ct. 447, 344 A.2d 613 (1975), where the parties’ agreement is incorporated into a court order, the order binds the parties and governs further court action in the same manner as any other custody order issued by a court. Commonwealth ex rel. Ackerman v. Ackerman, 34 D. & C.2d 111 (1964), aff'd, 204 Pa.Super.Ct. 403, 205 A.2d 49 (1964) allocatur refused, Feb. 15, 1965 (involved unilaterally requested modification of the parties’ prior stipulation which had been approved by the court); Commonwealth ex rel. Hickey v. Hickey, 216 Pa.Super.Ct. 332, 264 A.2d 420 (1970), allocatur refused, May 25, 1970; Pa.R.C.P. 1915.7 and Pa.R.C.P. 1915.9 and the attendant explanatory comments of the Civil Procedural Rules Committee (to be effective July 1, 1982).” Id., 301 Pa.Superior 39 ftn. 1, 446 A.2d at 1324 ftn. 1. (Emphasis added).

This Court is unable to resolve the questions raised by the parties regarding the standard of review.

Although a certified copy of the “PETITION FOR VISITATION” was filed as an exhibit with the trial court, there is no transcript of any testimony or legal arguments presented in consideration of the petition. Additionally, the official docket entries which were forwarded to this Court are silent on any proceedings conducted before December 3, 1980, the date that appellant filed the custody petition. We note also that the record is ambiguous on the exact nature of the proceedings surrounding the trial court’s determination of March 1, 1978. Without this information, we cannot address properly appellant’s argument that the broader standard of review should apply because “there was no formal custody proceedings nor was there any actual custody order” prior to the hearing and decision of the trial court in the present action. Brief for Appellant at 20. See also Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981). Nor can we address appellee’s contention that the more restrictive standard should apply since “studies [conducted by the Domestic Relations Office of Clearfield County] were presented to the Court and considered by the Judge in his determination of the visitation petition on March 1, 1978.” Brief for Appellee at 2.

As a result, because there is a question “as to whether the record truly discloses what occurred in the lower court”, the matter must be remanded. See Pa.R.A.P. 1926; see also Commonwealth v. Hobson, 481 Pa. 526, 393 A.2d 29 (1978).

A remand also is warranted because even if an extant custody order did not exist, the trial court must also file a comprehensive opinion in contested custody cases. See Parks v. Parks, supra.

The discussion portion of the trial court’s opinion reads as follows:

“That [appellant] was in contempt in not obeying the order of the Honorable John K. Reilly, Jr. is not to be doubted. The fact that her attorney, then and now, advised her to do so is not acceptable as an excuse for her actions. However, as indicated, we do not find this to detract from her fitness. Neither do we find any basis for her attacks upon the fitness of the father of these children. He has provided adequate and complete care for them.
The controlling factor in deciding the custody of children must be their best interest. Com. ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635. Although ordinarily the child is best served by the mother (Com. ex rel. Fortunes v. Manos, 140 Pa.Super. 352 [13 A.2d 886]), this is not always so.[] The moral character of the mother can serve some consideration, certainly; and so, her prior lack of interest until, as here, she has obtained a divorce which was preceded by months of separation and by a custody agreement which gave custody to the father. Also, a consideration for the court is her lack of regard for an order of court which limited her rights to visitation shortly before she violated the order by holding the children after she should have returned them to the father. See and compare In re Irizarry, 195 Pa.Super. 104, 169 A.2d 307. Further, even though the mother is found to be fit, custody may be awarded to the father; and there is factual and legal foundation for doing so here. Cf. Kepler v. Kepler, 87 Dauph. 181 (1967) and Com. ex rel. Mitchell v. Mitchell, 186 Pa.Super. 347, 142 A.2d 304.
This agreement for custody, followed by Judge Reilly’s order as to visitation, should be sustained and enforced. The circumstances certainly dictate such a result. We so determine, circumstances so heavily favor the rights of the father—as they do here. Cf. Com. ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Super. 447, 344 A.2d 613.” Trial Court’s Opinion at 4-5.

The above discussion of the evidence and the findings entered by the court fail to contain any findings as to the credibility of the parties, the home surroundings, and the conditions and care of the children from which the paramount issue of the children’s welfare can be determined. See Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Super. 447, 344 A.2d 613, 614 (1975). Additionally, the opinion does not contain a full discussion of the evidence since there is no mention that the two older children expressed a preference to live with their mother and her husband. The court also failed to mention that appellant has married Paul Supko even though it did mention that appellant “proceeded to cohabit with Paul [Supko].” “FINDINGS OF FACT” No. 1. This selectivity in the court’s discussion of the evidence and the other deficiencies in the record necessitate a remand.

The order is vacated and this case is remanded for further proceedings consistent with this opinion. Jurisdiction is retained.

After the trial court makes the above determinations and makes any necessary additions to the record, this case shall forthwith be returned to this court.

      . We note that the issue concerning the appropriate standard of review in custody cases has been certified for en banc consideration by this Court. See In Re: Donna Williams and Edward Williams, (J. 934/82).

      . Rule 1926 of the Rules of Appellate Procedure and the commentary section provide:
      If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the firm and content of the record shall be presented to the appellate court.

        Note: Based on former Supreme Court Rule 63 and former Superior Court Rule 54. This rule is intended to close a gap in the prior practice whereby the lower court could not correct an error discovered in writing an opinion under Rule 1925 (opinion in support of order). This rule does not enlarge the power of the lower court to rewrite the record but, together with Rule 1922(c) (certification and filing), merely postpones the reading and correction by the trial judge of an unobjected to transcript (except for the charge to the jury in criminal proceedings) from the transcription stage to the opinion writing stage, so as to conform to actual practice.
      Amended Dec. 11, 1978, effective Dec. 30, 1978.

      . On remand, the court should also articulate the standard of review which it has applied because "an agreement between the parties as to custody is not controlling but should be given weight taking into consideration all the circumstances. Commonwealth ex rel. Children’s Society, Guardian v. Gard, et ux., 362 Pa. 85, 66 A.2d 300 (1949). A child cannot be made the subject of a contract with the same force and effect as if it were a mere chattel has long been established law.” Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Super. at 448-49, 344 A.2d at 614 (1975) (emphasis added); see also Daniel K.D. v. M.H., supra.

      . We note that the "clear trend has been to abolish presumptions in custody disputes.*
      * In child custody cases, the court must ‘continually hew to the pole star of a child’s best interests, eschewing presumption and surmise.’ Morris v. Morris, 271 Pa.Super. 19, 24, 412 A.2d 139, 141 (1979). See, e.g. Com. ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977) (no presumption that mother should be awarded custody of child of 'tender years'); In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648, 653 (1977) (no presumption that child’s best interest will be served by being raised by a parent).”

        Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 429 ftn. 8, 448 A.2d 1113, 1117 ftn. 8 (1982).

      . Although the trial court’s preliminary findings which were made orally at the close of the hearing mentioned that "the children indicated [that] they wanted to be with their mother”, the trial court failed to include this as a factor in its discussion of the opinion which was filed some six months later. See Record at No. 8, pg. 5-6. This discrepancy should be resolved on remand.


source: Caselaw Access Project

author: LIPEZ, Judge:

license: Public Domain

text:
    461 A.2d 259
    ESTATE OF Alexander YOUNGER, Deceased. Appeal of AMERICAN COMMITTEE OF WEIZMAN INSTITUTE OF SCIENCE, INC. and Philadelphia Geriatric Center.
    Superior Court of Pennsylvania.
    Argued March 10, 1982.
    Filed May 27, 1983.

      Lawrence Barth, Deputy Attorney General, Philadelphia, for Commonwealth, participating party.
    Carol Suzanne Buechner, Herman Bloom and Mervin J. Hartman, Philadelphia, for Ocks and Levin, participating parties.
    Dilworth, Paxson, Kalish & Kauffman, Harry A. Kalish, John M. Elliott (argued), Joseph P. Dougher, Philadelphia, for Weizman Institute of Science, Inc.
    Kohn, Savett, Marion & Graf, P.C., Harold E. Kohn (argued), Bayard M. Graf, Philadelphia, for appellants Philadelphia Geriatric Center and American Committee of Weizman Instit. of Science, Inc.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   LIPEZ, Judge:

In this will contest, the American Committee for the Weizman Institute of Science, Inc. (Weizman) and the Philadelphia Geriatric Center (Geriatric) appeal from the decision of the Orphans’ Court en banc, affirming the decree of the hearing judge which upheld the admission to probate of a writing dated September 8, 1976, as the last will and testament of Alexander Younger. Contestants Weizman and Geriatric contend that the court erred in upholding the probate of this writing because it was the product of undue influence exerted upon the testator by two of the will’s beneficiaries: testator’s attorney, Herbert L. Ocks; and Mark Levin, manager of testator’s business property.

I

The probate will (Will No. 5) was executed on September 8, 1976, in the office of proponent Ocks, who was also the will’s scrivener. It was witnessed by Ocks and his secretary, Jacqueline Belletieri. The will gave $10,-000.00 to each of the testator’s three nieces and two nephews (his only surviving relatives), $20,000.00 to his secretary, $10,000.00 to a former employee, $5,000.00 to a friend, $50,000.00 to his “friend and attorney” Herbert L. Ocks, $25,000.00 to his “friend and faithful employee" Mark Levin, and $100,000.00 to his “friend and long-time companion” Mauro Dominquez. The residue of the $1,100.000.00 estate was given 40% to Dominquez, 40% to Ocks and 20% to Levin. Testator’s friend Caswell F. Holloway was named executor and the testator appointed proponent Ocks as attorney for the executor.

Testator had previously executed four other wills: Will No. 1, dated December 11, 1972; Will No. 2, dated December 17, 1973; Will No. 3, dated January 19, 1976; and Will No. 4, dated September 1, 1976. Proponent Ocks was the scrivener of all but Will No. 1.

Will No. 1 gave $5,000.00 to each of the testator’s nieces' and nephews; $10,000.00 to his secretary; $5,000.00 to his housekeeper; and $30,000.00 to Mauro Dominquez. The residue was given in trust for the benefit of the Weizman Institute of Science in Rehovot, Israel. The First Pennsylvania Banking and Trust Company was appointed executor, and the will was executed in a conference room of the bank. The witnesses were a trust officer of the bank and William J. MacDermott, Esquire, the will’s scrivener.

In Will No. 2, drawn by Ocks, the testator gave $10,-000.00 to each of his nieces and nephews; $10,000.00 to his secretary; $5,000.00 to his housekeeper; $5,000.00 each to three friends; the greater of 10% of the net value of the estate or $100,000.00 to Mauro Dominquez, and also provided for payments of $1,000.00 a month to be made to Dominquez by the executor during the period between testator’s death and the distribution of the estate. The residue was given in trust to the Philadelphia Geriatric Center, with Caswell F. Holloway, Mark Levin and Herbert L. Ocks appointed as attorney for the executor. The will was executed on December 17, 1973 and witnessed by Ocks and his secretary, Molli S. Robbins.

Will No. 3, executed January 19, 1976, again gave $10,-000.00 to each of testator’s nephews and nieces. It gave $25,000.00 to testator’s secretary, $10,000.00 to his housekeeper, $10,000.00 to each of four friends, and $50,000.00 to Ocks. Mauro Dominquez was given the greater of 10% of the estate or $150,000.00 and was to receive monthly payments of $1,000.00 as in Will No. 2. The Philadelphia Geriatric Center was to receive the residue through a trust identical to that set up in Will No. 2. Caswell F. Holloway was again named executor, with Ocks appointed as his attorney. The will, drafted by Ocks, was witnessed by one of Ocks’ law partners and by Ocks’ secretary, Milli S. Robbins.

Will No. 4 was executed on September 1, 1976, only one week before the probated will. It gave $10,000.00 to each of testator’s nieces and nephews, $20,000.00 to his secretary; $10,000.00 to a friend; $5,000.00 to another friend; $50,000.00 to Ocks; and $25,000.00 to Levin. Mauro Dominquez was again to receive the greater of 10% of the estate or $150,000.00 and monthly payments of $1,000.00 for up to two years between testator’s death and the distribution of the estate. The residue was given 50% to Dominquez, 35% to Ocks and 15% to Levin. Caswell F. Holloway was named as executor, with Ocks to serve as his attorney. The will was witnessed by Ocks and his secretary, Jacqueline Belletieri.

At the hearing on contestants’ challenge to the probate of Will No. 5, it was stipulated that Alexander Younger had testamentary capacity when all five wills were executed, that a confidential relationship existed between testator and proponent Ocks, and that Ocks, Levin and Mauro Dominquez received the bulk of testator’s estate under Will No. 5. Testimony was given by testator’s secretary and a longtime friend as to testator’s relationships with Levin, and Dominquez. The secretary, testator’s housekeeper and a real estate specialist with whom testator negotiated a lease near the time that Will No. 5 was executed, gave testimony as to testator’s physical and mental abilities, his attention to business matters and his disposition. Several medical doctors were also called and gave testimony at considerable length on the issue of testator’s medical condition, both physical and mental. Weighing all of this evidence, the hearing judge concluded that while Ocks and Levin had confidential relationships with testator, Mauro Dominquez did not and that testator not only had testamentary capacity at the time Will No. 5 was executed, but also had an intellect which had not been significantly weakened by his physical ailments.

In determining whether contestants had proved their allegations of undue influence with regard to Will No. 5, the hearing judge applied the test established in Boyd v. Boyd, 66 Pa. 283 (1870), and its progeny:

When the proponent of a will proves that the formalities of execution have been followed, a contestant who claims that there has been undue influence has the burden of proof. The burden may be shifted so as to require the proponent to disprove undue influence. To do so, the contestant must prove by clear and convincing evidence that there was a confidential relationship, that the person enjoying such relationship received the bulk of the estate, and that the decedent’s intellect was weakened.

Estate of Reichel, 484 Pa. 610, 614, 400 A.2d 1268, 1270 (1979). The court therefore held that, as testator’s intellect was not weakened, the burden of proof remained on contestants to prove undue influence by clear and convincing evidence, see Brantlinger Will, 418 Pa. 236, 250, 210 A.2d 246, 254 (1965), and that they had failed to meet this burden. Opinion of the hearing judge at 36-44. The Orphans’ Court en banc, applying the same standards for shifting the burden of proof as had been utilized by the hearing judge, reviewed the evidence and affirmed the decision of the hearing judge.

II

In examining the decision of the Orphans’ Court in this case, our review is “limited to determining whether the findings of fact approved by the court en banc rest on legally competent and sufficient evidence, and whether an error of law has been made or an abuse of discretion committed.” In re Estate of Ziel, 467 Pa. 531, 536-37, 359 A.2d 728, 731 (1976) [citations omitted]. This review is made viewing the record in the light most favorable to the appellees. In re Estate of Fickert, 461 Pa. 653, 657, 337 A.2d 592, 594 (1975).

Here, the hearing judge painstakingly summarized and carefully considered the evidence presented by all parties, and his findings and conclusions were thoughtfully reviewed by the lower court en banc. We find no abuse of discretion which would warrant our disturbing the lower court’s factual findings or its conclusion that testator did not have a weakened intellect during the time relevant to the execution of Will No. 5. Moreover, we find that, with respect to proponent Levin, the lower court applied the proper legal standard in assigning the burden of proof on the issue of undue influence.

Ill

As to proponent Ocks, however, we must reach a different result, for we conclude that the lower court erred in applying the same standard to assign the burden of proof of undue influence in the case of attorney Ocks as was used in the case of layman Levin. This error of law compels us to vacate the order of the Orphans’ Court.

In assigning the burden of proof of undue influence with regard to Ocks’ actions, the lower court relied on Gold Will, 408 Pa. 41, 182 A.2d 707 (1962) and Paul Will, 407 Pa. 30, 180 A.2d 254 (1962). In both of those cases, the Supreme Court upheld wills making large gifts to the attorneys who drafted them and stated that, absent proof that testator’s intellect was weakened, the burden of proving undue influence was on the contestants. However, both Gold and Paul were decided before the Supreme Court’s adoption of the Code of Professional Responsibility on February 27, 1974. 455 Pa. lvii. We find that the Code changed the law in this area, overruling Gold and Paul sub silentio.

The Code of Professional Responsibility was adopted by order of the Supreme Court as “the standard of conduct for attorneys of all the courts of the Commonwealth.” 455 Pa. lvii. It is comprised of three separate but interrelated parts: (1) the Canons, which are “axiomatic norms” expressing in general terms the standards of professional conduct; (2) the Ethical Considerations, which are a body of principles representing “objectives toward which every member of the profession should strive”; and (3) the Disciplinary Rules, which “state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.” Code Prof.Resp., Preliminary Statement. The Code has the “force of statutory rules of conduct for attorneys” in Pennsylvania. American Dredging Co. v. City of Philadelphia, 480 Pa. 177, 183, 389 A.2d 568, 571 (1978).

Contestants claim that Ocks’ actions in connection with the challenged will were contrary to the standards set out in Canon 5 and Ethical Considerations (EC) 5-5 and 5-6 of the Code. Canon 5 provides that “[a] lawyer should exercise independent professional judgment on behalf of a client.” EC 5-5 and 5-6 deal with particular situations in which that independent professional judgment may be compromised. EC 5-5 provides:

A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from a client, he is peculiarly susceptible to the charge that he unduly influenced or overreached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that his client secure disinterested advice from an independent, competent person who is cognizant of a,ll the circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to nam.e him beneficially be prepared by another lawyer selected by the client, [emphasis added]

EC 5-6 provides:

A lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken to avoid even the appearance of impropriety, [emphasis added]

A.

Ocks does not deny that he failed to comply with the provisions of these ethical considerations. Rather, he asserts that the violations are irrelevant because they are raised in the context of a will contest rather than a disciplinary proceeding. His argument on this point is three-pronged. First, he contends that the Orphans’ Court and this court are without jurisdiction to enforce the Code of Professional Responsibility. He claims that such jurisdiction is vested exclusively in the Supreme Court, with the assistance of the Disciplinary Board, Hearing Committees and Disciplinary counsel, by Pennsylvania Rules of Disciplinary Enforcement 201 and 205-207. Second, he argues that even if a violation could be acted upon by the Orphans’ Court, it could do so only by imposing one of the sanctions of Rule of Disciplinary Enforcement 204, not by denying Ocks his bequest. Third, he asserts that even the bodies with proper jurisdiction over disciplinary actions would be unable to act here because Ocks violated only Ethical Considerations, while disciplinary measures may be imposed only for violations of Disciplinary Rules under Rule of Disciplinary Enforcement 203(a). We find this argument to be without merit.

It is true that the Supreme Court has exclusive jurisdiction over disciplinary actions, and that in such actions, specifically prescribed sanctions are imposed when a Disciplinary Rule of the Code of Professional Responsibility has been violated. Pa.R.D.E. 201, 203, 204. Contestants did not ask the lower court to discipline Ocks, however. Rather, they asked that in considering their claims of undue influence the court take into account the fact that Ocks had ignored clear language of the Ethical Considerations in drafting wills by which he took a large bequest. We agree that this should have been considered.

The fact that the Orphans’ Court may not disbar, suspend or otherwise officially censure an attorney for professional misconduct does not preclude it from recognizing the requirements of the Code of Professional Responsibility and enforcing the Code in other ways. Indeed, despite its reservation of jurisdiction over disciplinary proceedings, in American Dredging Co. v. City of Philadelphia, supra, the Supreme Court held that “[t]he trial court in the first instance has the power to regulate the conduct of attorneys practicing before it, and has the duty to insure that those attorneys act in accordance with the Code of Professional Responsibility.” Id., 480 Pa. at 183, 389 A.2d at 571 [emphasis added]. Moreover, the American Dredging opinion makes it clear that this duty extends to the Canons and Ethical Considerations as well as the Disciplinary Rules of the Code. There, in considering a motion to disqualify an attorney for conflict of interest, the court found that violations of Ethical Considerations 5-14 and 5-15 constituted a violation of Canon 5 which the court treated as a ground for disqualification independent of other violations which it found. American Dredging, then, can be said to stand for the proposition that a trial court may, in fact must, take notice of violations of the Ethical Considerations of the Code and act to rectify or prevent such violations in matters which come before it. It follows that the Orphans’ Court was not powerless to recognize and act upon Ocks’ violations of Ethical Considerations 5-5 and 5-6 in the case before us.

B.

We turn, then, to a consideration of the proper treatment of these admitted violations. The Code, of course, does not absolutely prohibit gifts from clients to attorneys. Indeed, the provisions of EC 5-5 and 5-6 are merely safeguards to protect both the client and the lawyer involved with such a gift from an abuse of their confidential relationship or the appearance that such abuse has occurred. It would thus be inappropriate for us to impose an inflexible rule that whenever the protective provisions of EC 5-5 and 5-6 are violated, undue influence must be found. The very presence of such safeguards in the Code, however, logically implies that where they have been disregarded we must examine the transaction more closely and that we need not stand helplessly by and allow an officer of the court to profit by his failure to follow “the accepted standards of right conduct.” A consideration of the interrelationships of Code provisions dealing with this problem and a comparison of those provisions with the prior ethical standards which shaped existing Pennsylvania case law are helpful in determining what form this closer examination should take.

Gold Will, supra, and Paul Will, supra, are, as proponent Ocks maintains, the leading Pennsylvania cases dealing with the validity of testamentary gifts to attorney-scriveners. When these cases were decided, the ethical standards in effect were those of the predecessor to the Code of Professional Responsibility: The American Bar Association Canons of Professional Ethics. These Canons were cast in much more general language than that employed by the Code and were intended to serve only as “a general guide” in determining the duties of a lawyer in a particular situation. American Bar Association Canons of Professional Ethics, Preamble. They did not attempt, as does the Code of Professional Responsibility, to set down specific rules or “standards by which to judge the transgressor.” Code Prof.Resp., Preamble. Of the Canons of Professional Ethics, the only one which gave any guidance to an attorney asked to draft a will by which he was to benefit was Canon 11 headed, “Dealing With Trust Property.” It provided, in part, that “[t]he lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.” This language, while abjuring the exploitation of a confidential relationship by undue influence or other means, was little more than a pious admonition against actual misconduct. It provided no safeguards to give guidance to the actions of lawyers who wished to act ethically in situations like the one before us, and it did not prohibit or even attach any significance to the preparation by a lawyer of an instrument under which he was a beneficiary. Since the Canons imposed no ethical duties upon the lawyers in Gold and Paul and gave no guidelines by which their conduct could be assessed, the Supreme Court had no reason to judge the conduct of those lawyers under a standard more stringent than that applied to the conduct of laymen. Applying the rule of Boyd v. Boyd and its progeny, the Court therefore placed the burden of proving undue influence upon the contestants in those cases just as it would have done had the wills been prepared by laymen.

Since the court’s adoption of the present Code of Professional Responsibility, however, this is no longer possible, for this Code does attach particular significance to the fact that an attorney has drafted a will under which he is a beneficiary. EC 5-6 recognizes the extreme delicacy of such a situation by noting that even where the attorney is only to serve as executor, trustee or lawyer under an instrument he has drafted, care must be taken to avoid even the appearance of impropriety. EC 5-5 states that whenever a lawyer accepts a gift from his client “he is peculiarly susceptible to the charge that he unduly influenced or over-reached his client” and therefore that “[o]ther than in exceptional circumstances, [he] ... should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer____” These provisions set forth a clear standard of conduct for attorneys in situations like the one before us, and our Supreme Court has given that standard the “force of [a] statutory rule of conduct,” American Dredging, supra, thus imposing a duty of compliance. When that duty is breached, an attorney leaves himself “peculiarly susceptible” to charges of undue influence, according to the Code. Courts dealing with the document in question must recognize the Code’s provision as a sound statement of public policy and act accordingly. We therefore hold that where an attorney drafts a will under which he is a beneficiary, a presumption of undue influence arises, regardless of the mental condition of the testator, and shifts the burden of proof to the attorney-scrivener to show by clear and convincing evidence that the gift arose from the will of the testator and not from improper influence by the attorney.

Because the burden of proving undue influence was placed on contestants by the lower court, and because the court found that this burden had not been met, proponent Ocks was not required to put on evidence to disprove undue influence. The record developed by the lower court is thus insufficient for this court or the Orphans’ Court en banc to resolve the will challenge under the rule that we adopt here. Accordingly, we must vacate both the final decree and the decree nisi entered by the Orphans’ Court and remand to the hearing level. The hearing judge shall conduct such further proceedings as may be necessary to complete the record, resolve the question of undue influence and fashion an appropriate remedy if undue influence is found.

Order vacated; case remanded for proceedings consistent with this opinion. The Prothonotary of this Court is directed to furnish a certified copy of this opinion to the Disciplinary Board of the Supreme Court of Pennsylvania, for such further proceedings as may be appropriate. Jurisdiction is relinquished.

      . The majority opinion of the Orphans’ Court en banc was authored by Judge Silverstein and joined by three judges. Judges Shoyer and Jamison filed dissenting opinions. The en banc decision dismissed contestants’ exceptions to the decision of the hearing judge, affirmed his opinion and decree, and entered an appropriate decree. The final decree was thus entered on July 16, 1981, and an appeal may properly be taken. See Hassler v. Columbia Transmission Corp., 294 Pa.Super.Ct. 86, 439 A.2d 762 (1982).
      A question was raised in argument as to the timeliness of contestants’ filing of notice of appeal with the lower court. A clerical error in docketing the notice of appeal has been corrected, however, and the record now includes a corrected copy of docket entries, certified by the lower court, which reveals that notice of appeal was filed on July 20, 1981, within the applicable time limit. Pa.R.A.P. 903. We will thus consider the merits of contestants’ appeal.

      . This appointment, although indicative of testator’s intention, does not bind the executor to use Ocks as his attorney. Every executor has the right to choose his own attorney. Kreider Estate, 11 Leb.Co.Legal J. 122, 42 Pa.D. & C.2d 46 (1966), aff’d mem., 426 Pa. 617, 233 A.2d 226 (1967).

      . Boyd v. Boyd, supra, and several other cases treating the issue of undue influence set forth two additional requirements to shift the burden of proof: that the beneficiary be a stranger to the blood of the testator; and that the beneficiary have been involved in the drawing and execution of the will. Boyd, supra, 66 Pa. at 293-94. The three-part test set forth above, however, is almost equally long-standing, See Cuthbertson's Appeal, 97 Pa. 163, 171 (1881). The two rules were reconciled, and the three-part test held to be all that must be satisfied to shift the burden of proof, in Estate of Clark, 461 Pa. 52, 59-61, 334 A.2d 628, 631-32 (1975).

      . The effect of the Code of Professional Responsibility on the law regarding gifts by testators of unweakened intellect to attorney-scriveners is a question of first impression in Pennsylvania. Since adoption of the Code, only one case addressed by our appellate courts has involved the allegation that undue influence was exerted by an attorney who also drafted the challenged will. In re Thomas' Estate, 463 Pa. 284, 344 A.2d 834 (1975). There, however, it was clear that the testator’s intellect was greatly weakened at the time that the will was drafted and executed. Since a presumption of undue influence was thus raised even under the rule of Gold and Paul, the possibility that the Code had changed the law in cases where weakened intellect is not present was not before the court.

      . We note that in several states, disciplinary action has been taken against attorneys drafting testamentary documents in which they were beneficiaries, even though no Disciplinary Rule of the Code of Professional Responsibility expressly prohibits it. See American Bar Association Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct, Proposed Final Draft, Rule 1.8, Legal Background, Paragraph (c) (1981), citing Committee on Professional Ethics and Conduct of State Bar Association v. Behnke, 276 N.W.2d 838 (Iowa 1979); Columbus Bar Association v. Ramey, 32 Ohio St.2d 91, 290 N.E.2d 831 (Ohio 1972); State v. Gulbankian, 54 Wis.2d 599, 196 N.W.2d 730 (Wis.1972). Since our action today is not disciplinary in nature, we need not decide whether discip6linary sanctions could be imposed for violations of EC 5-5 and 5-6 under Pennsylvania law. However, we believe that a substantial question is presented as to the propriety of disciplinary action being taken against Ocks either for those violations or possible violations of DR 1-102(A)(4) or (5) ("DR 1-102 Misconduct. (A) A lawyer shall not: ... (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice.”). We will therefore direct the Prothonotary of this court to furnish a certified copy of the opinion to the Disciplinary Board of the Supreme Court of Pennsylvania, for such further proceedings as may be appropriate. See Polascik v. Baldwin, 245 Pa.Super.Ct. 1, 5-7, 369 A.2d 263 (1976).

      . "My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted' standards of right conduct are the forces which singly or in combination shape the progress of the law.” B. Cardozo, The Nature of the Judicial Process 112 (1921).
      "The judiciary is, then, on the one hand a guardian of the law’s continuity, stability, evenhandedness, and predictability and on the other hand a participant in creative evolution that keeps law contemporary and viable." Keeton, Courts and Legislatures as Agencies of Abrupt Change, in The Judicial Process 840 (R. Aldisert 1976)

      . Canon 9 of the Code provides that in all situations a lawyer should avoid even the appearance of impropriety. That this warning should be explicitly reiterated in EC 5-6 is a clear additional indication of the Code’s disfavor of documents like the will before us.

      . This presumption is identical to that which has long been recognized in Pennsylvania where a lawyer takes a gift from his client through a non-testamentary instrument of his own preparation, see, e.g., Meara v. Hewitt, 455 Pa. 132, 314 A.2d 263 (1974), and is an established principle of the law of wills and estates in many jurisdictions. Indeed, in recognizing such a presumption, we adopt what appears to be the majority view on this issue. See Bookstaver, Execution and Validity of Wills and Inter Vivos Trusts, 24 U.Pitt.L.Rev. 404, 408-09 (1975). See also Annot., 19 A.L.R.3d 575, 585-92. It should be noted that because this presumption is raised by the Code of Professional Responsibility, it will be applied only where an attorney is both scrivener and beneficiary. As to laymen, the Boyd v. Boyd line of cases remains controlling. Our adoption of a stricter standard to be applied where the conduct of a lawyer is involved in these cases is in keeping with the concern of the Code of Professional Responsibility for the integrity of the profession and with the Code’s imposition upon every lawyer of a duty to act with that integrity in mind. See Code Prof.Resp., Canon 1, Canon 9, EC 1-1, 1-5, 9-1, 9-2, 9-6, DR 1-102(A)(4), (6). This concern is eloquently expressed in the American Bar Association Model Code of Professional Responsibility, DR 1-102(A)(6) n. 14, quoting Justice Frankfurter’s concurring opinion in Schware v. Bd. of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957):
      It is a fair characterization of the lawyer’s responsibility in our society that he stands as a shield, to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with these responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’
      We also find it significant that as a result of its reassessment of the Code of Professional Responsibility, the American Bar Association Commission on Evaluation of Professional Standards has included the following provision in its proposed final draft (May 30, 1981) of the Model Rules of Professional Conduct:
      Rule 1.8 Conflict of Interest: Prohibited Transactions

      (C) A lawyer shall not prepare an instrument giving the lawyer or a member of the lawyer’s family any gift from a client, including a testamentary gift, except where the client is a relative of the donee.
      The Commission’s research notes to Rule 1.8(c) indicate that this rule was included as a reflection of the prevailing substantive law, which holds that a lawyer-beneficiary’s participation in the preparation or execution of a will raises a presumption of undue influence.

      . We do not decide whether undue influence, if found, must invalidate the entire will or only portions of it, nor do we determine the proper disposition of funds which would have to be redistributed should portions of the will be found invalid. These are questions which should be explored in further hearings and the resolution of which involves an analysis of facts properly within the province of the hearing judge. We do note, however, that if Will No. 5 is found to be invalid in its entirety, the presumption of undue influence will also apply to Wills 3 and 4, both of which were drafted by Ocks and gave him a sizeable bequest.


author: SPAETH, Judge:

text:
    461 A. 2d 267
    COMMONWEALTH of Pennsylvania, Appellant, v. Marshall Ray JONES. COMMONWEALTH of Pennsylvania v. Marshall Ray JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1983.
    Filed June 3, 1983.

      David Forrest Mowrey, Assistant District Attorney, Meadville, for Commonwealth, appellant (at No. 675) and for Commonwealth, appellee (at No. 731).
    Bruce Alan Barrett, Assistant Public Defender, Mead-ville, for appellant (at No. 731) and for appellee (at No. 675).
    Before SPAETH, BROSKY and JOHNSON, JJ.
   SPAETH, Judge:

Appellant Marshall Ray Jones appeals from a judgment of sentence for corruption of the morals of a minor, and the Commonwealth appeals from an order arresting judgment on Jones’s conviction of involuntary deviate sexual intercourse. We affirm the judgment of sentence, and reverse the order arresting judgment.

Appellant Jones was charged with forcible rape, involuntary deviate sexual intercourse, and corruption of the morals of a minor. The victim was his stepdaughter. A jury convicted Jones of involuntary deviate sexual intercourse and corruption of the morals of a minor, but failed to reach a verdict on the charge of rape.

1

Appellant Jones first argues that the lower court erred in denying his motion for a mistrial after one juror allegedly fell asleep during the court’s jury charge. N.T. 3/21/80 at 137. In moving for a mistrial, defense counsel said that “juror ten seemed to fall asleep from my observations.” The lower court, however, said that “[i]t [the alleged falling asleep] certainly hasn’t been anything extraordinary or I think I would have noticed. I have been sitting here looking at the jurors. That’s not to say that she may not have dozed or she may be like the judge who sometimes rests his eyes without sleeping. In any event, the motion for mistrial is denied.” Id. The lower court has considerable discretion in controlling the conduct of a trial. Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980); Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982); DeFulvio v. Holst, 239 Pa.Super. 66, 362 A.2d 1098 (1976). We are not persuaded that in denying the motion for mistrial, the court abused its discretion.

2

Appellant Jones next argues that the lower court erred in denying his motion in arrest of judgment on his conviction for corruption of minors. To be guilty of corruption of minors, the defendant must be 18 years old or older. 18 Pa.C.S.A. § 3125, Corruption of Minors, now 18 Pa.C.S.A. § 6301, Corrupting Children. Here the Commonwealth offered no evidence of appellant’s age.

• However, a person’s age need not be proved only by direct testimony. Appellant revealed something about his age by his physical appearance, which the jury observed. See Rich v. State, 266 P.2d 476 (Okl.Cr.App.1954) (where age is material element of offense, it may be proved by circumstantial evidence that jury saw defendant in courtroom). Accord, Appeal No. 267 (77) From District Court of Montgomery County, 38 Md.App. 224, 380 A.2d 239 (1977). See also Commonwealth v. San Juan, 129 Pa.Super. 179, 182, 195 A. 433, 435 (1938) (personal appearance is evidence of age). Cf. McMillen v. Steele, 275 Pa. 584, 589, 119 A. 721, 722-723 (1923) (“Personal appearance should be received as some indication of a child’s age; it may be slight evidence, but its weight is for the jury. It might be,, under given circumstances, extremely difficult to tell age by observation, but this relates more generally to older persons. Where age is one of the necessary ingredients of a crime, appearance, standing alone, would hardly be considered sufficient to establish the fact.”).

Appellant also revealed something about his age by his own testimony. He said that he married the victim’s mother when the victim was four or five years old. N.T. 3/21/80 at 77. Since the victim was born on March 13, 1962, N.T. 3/19/80 at 4, 40, she was four years old in 1966, and five in 1967. Let us suppose that appellant married the victim’s mother in 1967. The crimes against the victim occurred in 1975, or eight years after appellant married the victim’s mother. If, therefore, appellant was 17 years old in 1975— i.e., was under 18—he was only nine years old in 1967, when he married the victim’s mother. We think the jury was entitled to reject such a supposition, assuming it ever occurred to them to engage in the arithmetic implicated in appellant’s argument to us that the evidence was insufficient to prove that he was 18 years old or older.

3

The Commonwealth’s sole argument as appellant is that there was sufficient evidence that the victim was under the age of 16 when some of the acts took place, and that therefore the lower court erred in arresting judgment on appellant’s conviction for involuntary deviate sexual intercourse. We agree.

It is true that the record shows no direct correlation between the victim’s age and the time of the acts in question. Yet there was sufficient indirect evidence that the victim was under 16 at least when some of the acts took place. This may be seen by fitting together four pieces of testimony:

1. The victim was born on March 13, 1962. N.T. 3/19/80 at 4, 40. Her 16th birthday would therefore have occurred on March 13, 1978.
2. Appellant’s first sexual contact with the victim occurred in 1975, when the family was living at “Hatch Hill.” Id. at 12.
3. Appellant had deviant sexual intercourse with the victim while living at “Hatch Hill.” Id. at 35-36.
4. The family lived at “Hatch Hill” until approximately the middle of November 1977. Id. at 8-9; N.T. 3/21/80 at 81.

Since the acts occurred at “Hatch Hill,” and since the victim’s family moved away from Hatch Hill before her 16th birthday, the jury was justified in finding that the victim was under 16 when the involuntary deviate sexual intercourse occurred.

On Appellant Jones’s appeal, the judgment of sentence for corruption of the morals of a minor is affirmed. On the Commonwealth’s appeal, the order of the lower court arresting judgment on the conviction of involuntary deviate sexual intercourse is reversed, the conviction is reinstated, and the case is remanded for the imposition of sentence.


author: HESTER, Judge:

text:
    461 A.2d 269
    Leo R. KAIRYS, M.D., Appellant v. The AETNA CASUALTY AND SURETY COMPANY, Benjamin A. Trottnow d/b/a Trottnow Insurance Agency, and Arthur D. Tripp, Jr.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed June 8, 1983.

      Mark A. Rosenblum, Pittsburgh, for appellant.
    Robert B. Brown, Jr., Pittsburgh, for Aetna, appellee.
    Lawrence F. Stengel, Pittsburgh, for Trottnow, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   HESTER, Judge:

Presently before this Court is appellant Dr. Leo R. Kairys’ appeal from the judgment of the lower court entered on November 10, 1981.

The facts may be summarized as follows:

Appellant is a physician specializing in the field of obstetrics and gynecology. In connection with his medical practice, he carried malpractice liability insurance written by Medical Protective in the basic amount of $100,000.00. He also carried an excess liability coverage policy with Chicago Insurance Company which covered any excess over $100,-000.00, up to $1,000,000.00. He also carried other insurance including life, general liability, and homeowner’s, all of which were handled by various insurance agents.

In January of 1969, appellant was contacted by Arthur D. Tripp, Jr., relative to the possibility of his becoming involved in a Keogh plan. In the course of those discussions, Tripp discussed appellant’s entire insurance portfolio with him. Although Tripp did not identify himself as an agent of Aetna Casualty and Surety Company, appellant believed that Tripp wrote insurance for Aetna.

Appellant’s dealings with Tripp led to his placing of a number of insurance policies which had previously been serviced by others. During the discussions, Tripp discussed the possibility of writing malpractice liability insurance coverage for appellant. He discussed the matter with his then associate who indicated that he was satisfied with the then existing coverage but that if Tripp could supply an additional $1,000,000 of excess coverage, it should be obtained. There then ensued a series of events which have led to the instant litigation.

Acting on appellant’s behalf, Tripp prepared an application for excess coverage of $1,000,000, as well as an application for basic underlying coverage of $250,000. Those applications were signed by appellant, and were forwarded to Trottnow which, in turn, forwarded them to Aetna. Tripp prepared an application for underlying coverage in the amount of $250,000 in the belief that such an application was required in addition to the application for the excess coverage. Aetna issued the policies and sent them to Trottnow who, in turn, sent them to Tripp, along with the billing for the premiums. Appellant was not interested and had never been interested in a basic underlying liability policy in the amount of $250,000 and that policy was never delivered to him. Correspondence then ensued between Tripp and Trottnow in which Tripp informed Trottnow that the 6000 policy had been issued in error and that there was never an intention to apply for such a policy. Tripp further informed Trottnow that since the policy had been issued, he would attempt to convince appellant to accept it. His attempts were unsuccessful and the policy was cancelled.

In addition, through the efforts of Tripp, appellant's Chicago Insurance Company excess policy was cancelled and a short rate return premium check was sent to appellant. Since the scope policy issued by Aetna provided excess coverage in excess of basic liability of $250,000 and the Med Pro policy provided basic underlying coverage of only $100,000, a gap existed in appellant’s coverage for any liability between $100,000 and $250,000.

In June of 1973, appellant was sued in an action of trespass alleging medical malpractice. He immediately notified Medical Protective and Aetna. He knew nothing more of this lawsuit until 1978 when he was informed by counsel retained by Med Pro to represent him that the case would soon be coming to trial. It was then that the existence of the gap came to light. The lawsuit in which appellant was defendant resulted in a verdict against him in the amount of $550,000. As hereinabove indicated, the then state of appellant's malpractice liability insurance coverage was such that he would be personally liable for any verdict between $100,000 and $250,000.

As the result of the aforedescribed verdict, appellant instituted an action for declaratory judgment against appellees, Aetna, Trottnow, and Tripp which sought a declaration that the Aetna 6000 policy was in effect and provided a basic underlying coverage up to $250,000.00. He further sought a declaration that each of the appellees breached his or its contractual obligations to appellant and was negligent in effecting the cancellation of, the Chicago Insurance Company excess policy and in issuing the Aetna scope policy whose excess constituted an umbrella over $550,000.00 base coverage without determining whether appellant had basic underlying coverage in the amount of $250,000.00, and by attempting to cancel the Aetna 6000 policy.

Trial on this matter commenced on May 8, 1981, nonjury, before the Honorable I. Martin Wekselman. Judge Wekselman, on July 30, 1981, issued an Order whose relevant findings as to this appeal are as follows:

(A) That the Aetna 6000 policy was never in effect and is not now in effect, and that plaintiff is entitled to no coverage thereunder.
(B) That defendant Arthur D. Tripp, Jr., breached his contractual duties to plaintiff and was negligent in failing to exercise the knowledge and skill reasonably expected of him in at least the following particulars: (1) By effecting the cancellation of the Chicago Insurance Company Policy No. 255-001768, $1,000,000 umbrella over $100,000 base coverage and causing to be substituted therefor the Aetna 1062 policy with $1,000,-000 umbrella over $250,000 base coverage without determining whether plaintiff had underlying coverage in the amount of $250,000.
(2) By causing to be issued the Aetna 1062 umbrella policy without determining the amount of coverage provided by Med Pro 434744.
(C) That neither defendant Benjamin A. Trottnow, d/b/a Trottnow Insurance Agency, nor defendant The Aetna Casualty and Surety Company has breached any contractual duty owed to plaintiff or been negligent with respect to any duty owed to plaintiff.

It is from this Order and subsequent reduction to judgment of the declaratory judgment against Arthur D. Tripp, Jr., that appellant has appealed.

Appellant raises two issues on appeal. These are: 1) Whether Trottnow and Aetna are vicariously liable to appellant for the negligence of Tripp? and 2) Whether Trottnow and Aetna were negligent in their dealings with appellant?

Regarding appellant’s first contention, appellant contends that our decision in Sands v. Granite Mutual Insurance Company, 232 Pa.Super. 70, 331 A.2d 711 (1974) should be controlling as related to our factual situation, while appellee maintains that Taylor v. Crowe, 444 Pa. 471, 282 A.2d 682 (1971) is more applicable. In that we believe this to be a “close question”, we will engage in a detailed analysis of the above cases and the relevant law in this area.

In Sands v. Granite Mutual Insurance Company, supra, Sands came to the Universal Insurance Agency in order to purchase automobile insurance. At that time he told Universal’s employee that he wanted “to be fully insured under 10-20 and 5- fully insured . ,.,” but expressed no preference with regard to which insurance company was selected. Universal was a broker which solicited business for several insurance companies. Since Universal had previously transacted business with Sands on the same automobile, and since none of the relevant circumstances affecting Sands’ insurability had changed to the point that additional information would be required, Universal asked only that he sign the insurance application form in blank. Sands was willing to permit Universal to fill out the form on the basis of the information they had on file. Universal accepted a premium payment and forwarded the completed application to defendant company, Granite Mutual Insurance Company (Granite) for approval.

Unfortunately, Universal did not explain to Sands that the policy carried a waiver of uninsured motorists coverage. Sands was subsequently involved in an accident. His lack of uninsured motorist’s coverage resulted in his being forced to assume a large portion of his medical bills. Alleging a principal-agent relationship between Granite and Universal, Sands instituted suit against Granite seeking to recover that which he would have received had he had uninsured motorists coverage.

Our court, in.deciding this issue, engaged in an extensive discussion of agency concepts as they relate to the insurance business. We there stated:

Granite’s principal argument against the existence of authority in Universal to bind them to provide insurance coverage rests upon a distinction more useful in the insurance industry than in the law—the distinction between a broker and an agent.
The facts developed at trial clearly indicate that in the lexicon of the insurance world, Universal was a broker, and not an agent. From this premise Granite invites us to recognize that, generally speaking, “brokers” represent purchasers of insurance while “agents” represent sellers of insurance. Therefore, according to Granite, Universal was not an agent of Granite, and Granite was not bound by either its acts or failures to act. We reject this facile approach to the resolution of this problem. Whether or not Universal was an “agent” for Granite in the sense in which that term is used by insurance men (i.e., duly licensed as an agent by the state insurance commission), is not particularly relevant. The question is whether the operating agreement between Universal and Granite provided, or appeared to provide, that Universal could bind Granite subject to Granite’s right to expressly reject a policy coverage by seasonably notifying the insured that coverage was refused. As Professor Keeton has stated in criticizing the courts’ willingness to employ general descriptions to determine particular relationships in insurance marketing:
“The terminology used in an agency contract is inconclusive and is often inconsistent with the distinctions [between soliciting or special agents and general agents]. It may happen that the agency contract refers to one as a soliciting agent but grants to him, expressly or by implication, limited authority to make contracts for the insurer in particular circumstances. Even if the term “special agent” were reserved to designate such persons, it would be indefinite because of the multitude of possible variations in the authority granted.” R. Keeton, Insurance Law 22-28 (1971).
The distinction between brokers and agents is no more helpful in ascertaining the extent of Universal’s authority to bind Granite in the instant case. In fact, even if we were to determine that Universal was acting in part as an agent for plaintiff in procuring insurance for him, that would not preclude our finding that Universal had simultaneous authority to bind Granite, albeit subject to Granite’s not rejecting coverage subsequently. As our Supreme Court has stated:
“[T]he fact that an agent has acted for both parties in the making of a contract cannot have the effect of invalidating the agreement so made when both principals, with full knowledge of the material facts, consented to the double agency.” Rossi v. Firemen’s Ins. Co., 310 Pa. 242, 165 A. 16 (1932). See also Restatement of Agency 2d §§ 391, Comment a, § 392.
The facts developed at trial in the instant case amply demonstrated that Universal had apparent, if not actual, authority to bind Granite, unless and until Granite notified the insured of the denial of coverage and refunded the premium to the extent it was not earned.
First, plaintiffs exhibits, which included various application forms, policies and receipts, show that the prior periods of insurance began on April 8, 1966, and April 8, 1967, in both cases running for twelve-month terms. Yet, in neither case were the policies “approved” by the home office on or before April 8th. Usually such approvals did not occur for several weeks after the coverage purportedly began. If we accepted the insurance company’s argument that the policies were not in force until approved by the home office, we would necessarily be finding that each year plaintiff purchased three to four weeks of insurance for which he received no coverage—the period of time between the “effective date” of the policy and its approval by the home office.
Second, the plaintiff produced his 1966-67 insurance policy from the records of Granite, which Granite did not repudiate and which listed Universal Insurance Agency as both an “Authorized Representative” and a counter-signatory of the insurance. By permitting Universal to hold itself out as an “Authorized Representative”, Granite undercut its argument that Universal did not have at least the apparent authority to bind them to a contract of insurance. Indeed, the applications signed by plaintiff and submitted to Granite in 1966 and 1967 stated that an individual who waived uninsured motorists protection could add such coverage at any time by making an additional two dollar premium payment, the coverage “to take effect when written endorsement is issued by an authorized representative of the company.” Thus, the documentary evidence supports the conclusion that “authorized representatives” could bind Granite and that Universal was such an authorized representative.
Finally, the president of Granite, Mr. Easterby, took the stand and admitted that Universal was permitted to set rates and deduct its commission directly from the premium payments as it received them. In fact, compared with the other agencies which transacted business for Granite, Universal stood in a unique relationship— they were the only brokers who were permitted to establish insurance rates for Granite. Furthermore, in 1966 Universal and Granite both submitted an application to the Insurance Commissioner of the Commonwealth to license Universal as an agent for Granite. Although the insurance commission refused to grant the license, the application itself indicates the close working relationship between Universal and Granite.
As one commentator has suggested: “[W]here a broker holds himself out as a general agent, solicits a policy, collects a premium a part of which he retains as his commission according to his custom, and a policy is issued upon information procured by him, he is an agent of the insurer by implication as to the insured who, in good faith, dealt with him as such.” 3 Couch on Insurance 2d § 26:25 (1960). See also Benanti v. Security Ins. Co., 222 Mo.App. 763, 9 S.W.2d 673 (Mo.1928); Mathews v. Marquette Cas. Co., 152 So.2d 577 (La.App.1963); app. denied 244 La. 662, 153 So.2d 880.
The courts of Pennsylvania have long concurred in this principle. In Thomas v. Western Ins. Co., 5 Pa.Super. 383 (1897), this court stated:
“It requires no extended discussion or citation of authorities to establish the proposition that a person authorized to deliver a policy of insurance and receive and receipt for the premiums is the agent of the company for that purpose, and the payment of the premium to him is good payment.”

Appellees, on the other hand, rely on Taylor et al. v. Crowe, 444 Pa. 471, 282 A.2d 682 (1971) in support of their position that Tripp was not acting as their agent. The relevant facts of Taylor et al. v. Crowe, supra, are as follows:

Taylor, et al. were the owners of a bowling alley. Crowe and his agency (jointly hereinafter referred to as “Crowe”) had been advising Taylor, et al. in connection with the insurance needs of the various businesses in which they were engaged for many years. When their bowling alley was completed in 1960, Taylor sought comprehensive coverage for both the building and equipment, believing that such coverage would protect them, inter alia, against the perils of landslide. They learned that such coverage was available from the Brunswick Company, from which Taylor had purchased their equipment. However, Crowe represented to Taylor that he could obtain the same coverage offered by Brunswick at a substantially lower premium.

Therefore, Crowe proceeded to place the coverage for both the equipment and the building with a number of insurance companies.

On February 14, 1981, six months after the policies went into effect, a landslide occurred damaging the building and equipment. Contrary to the representations of Crowe, the policies of insurance provided no protection against the risk of landslide.

Taylor subsequently instituted suit against Crowe and the insurance companies through which he placed the Taylor policies. In discussing whether Crowe was the agent of the insurance companies, our Supreme Court noted:

At trial, appellants emphasized that Crowe had a written agency “producer” contract with both members of the Threshermen group. However, at trial, one of the appellants testified as follows:
“Mr. Crowe and his agent was a representative of our company all together. We relied on him to cover us in every phase of our work in the construction field. * * * He had complete charge of our insurance. * * * Our confidence in Mr. Crowe and the Crowe Agency was one hundred per cent as far as insurance was concerned * * * we put all our trust in Mr. Crowe. * * You trust a man to go out and buy you the best insurance you can get. * * * I find out now that there is eight insurance companies involved in this thing * * it didn’t concern me where he was getting it [insurance] or who he was getting it from so long as he got it for me * * * that was his business.”
On the basis of this testimony, we agree with the trial court that the case comes squarely within the law enunciated in Taylor v. Liverpool & L & G Ins. Co., 68 Pa.Super. 302, 304 (1917):
“Where a person desiring to have his property insured applies not to any particular company or its known agent, but to an insurance broker, permitting him to choose which company shall become the insurer, a long line of decisions has declared the broker to be the agent of the insured; not of the insurer.”
Our conclusion is supported by the discussion found in Couch on Insurance, 2d Section 25:95:
“A broker may be found to have acted on behalf of the insurer in negotiations between the latter and the insured so as to be deemed the agent of the insurer and not the insured * * * but there must be some evidence of an authorization, or some fact from which a fair inference of an authorization by the company might be deduced to make ah insurance broker the agent of the company. * * * ”
Here, there was no evidence of authorization by the companies that Crowe act as their agent.

In the present case, the relevant facts regarding whether Tripp was an agent of either Trottnow, Aetna, or both, are as follows.

First, while appellant said he knew Tripp to be an “Aetna man”, appellant stated that he was not concerned with which company Tripp placed the insurance. Second, the relevant malpractice policies were signed by Trottnow as the “Authorized Representative” of Aetna. Third, Mr. Tripp was paid directly by Dr. Kairys for the malpractice policies and Tripp retained his commission. Fourth, Tripp stated that he was obligated to first offer the insurance coverage to Trottnow before he could proceed to another agency. It is to be noted that there is no dispute that Trottnow is an agent of Aetna and that the arrangement between Tripp and Trottnow resulted in Aetna receiving 98% of Tripp’s business. Fifth, while Mr. Tripp stated that he was referred to the Trottnow Agency by Aetna, he did not have an operating agreement with Aetna. Sixth, Trottnow was not permitted to contact Tripp’s customers and any dealings between Trottnow and Tripp’s insureds had to proceed through Tripp.

First, regarding whether Tripp was an agent of Aetna, it is to be noted that unlike Sands, supra, Tripp did not sign the policies. He was not listed as an “authorized representative” of Aetna. However, like Sands, supra, Tripp did deduct his commissions directly from the premium payments as he received them. While the record is devoid of any mention of who established the insurance rates, Tripp did indicate that Aetna had sponsored him for his insurance license, but also stated that this license did not permit him to directly write insurance for Aetna. Also, as in Taylor, supra, appellant stated that he did not care with which company Tripp placed his malpractice insurance, just as long as he secured the proper coverage.

We find that Tripp was not an agent of Aetna. This finding is based upon the fact that Tripp was not held out as being an “authorized representative” of Aetna and that the appellant did not request any particular company where his insurance was to be placed. He permitted Tripp to make this determination.

Whether Tripp was an agent of Trottnow, poses a more difficult question. While Trottnow did not furnish or provide any facilities for Tripp, Tripp, through an agreement with Trottnow, . was required to submit his clients’ insurance requirements to Trottnow before he was permitted to consult another agent. This was the reason given by Tripp for placing 98% of his business with Aetna through Trottnow. However, we rely heavily upon Tripp’s own statements that while he first had to submit his business to Trottnow, in the event he decided the Trottnow offering were unacceptable, he could then proceed to do business with another agency. In addition, Trottnow, in no manner, provided facilities for Tripp nor had personal contact with Tripp’s clientele. Therefore, we conclude that Tripp was not an agent of Trottnow.

Appellant’s final issue concerns whether Trottnow and Aetna were negligent in their dealings with appellant. This contention centers upon both Trottnow’s and Aetna’s failure to discover the $150,000 gap in his malpractice insurance coverage. Thus, we must determine whether any negligent conduct can be attributed to either Trottnow or Aetna. The evidence establishes that in September, 1970, a representative of Aetna’s Personal Accounts Division attempted to ascertain the limits of appellant’s underlying liability coverage through Trottnow. Trottnow requested that Tripp identify the policy number, company name and limits of liability of appellant’s underlying liability policy. Tripp informed Trottnow and Aetna that the Medical Protective Insurance Company policy number 434744 provided appellant with $250,000 of underlying coverage. Also, it is to be noted that Tripp, through his own negligent conduct caused the Chicago Insurance excess policy to be cancelled thereby creating the $150,000 gap in appellant’s coverage. In that both Trottnow and Aetna used reasonable diligence, as described above, in attempting to ascertain appellant’s underlying coverage, we conclude that neither Trottnow nor Aetna can be deemed to be independently negligent.

Judgment affirmed.

      . The underlying policy was referred to in the testimony and will hereinafter be referred to as a 6000 policy and the excess policy as a scope policy.

      . Tripp has taken no part in this appeal.

      . These figures represent standard limitations of liability in the policy: $10,000 maximum per person per accident: $20,000 maximum per accident: and $5,000 maximum in property damage per accident.


author: WIEAND, Judge:

text:
    461 A.2d 276
    COMMONWEALTH of Pennsylvania v. Lewis JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued March 1, 1983.
    Filed June 3, 1983.

      William James Perrone, Norristown, for appellant.
    Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.
   WIEAND, Judge:

Lewis Jones was tried nonjury and was convicted of theft by unlawfully taking a 1981 Buick. On direct appeal from the judgment of sentence, Jones contends that the evidence was insufficient to sustain the conviction and that he failed to receive a speedy trial in accordance with the mandate of Pa.R.Crim.P. 1100. We find no merit in these contentions and, accordingly, affirm.

In reviewing the sufficiency of the evidence to support a finding of guilt, we view the evidence, and all reasonable inferences therefrom, in the light most favorable to the Commonwealth as verdict winner. The test is whether, accepting as true the evidence favorable to the Commonwealth, together with all reasonable inferences therefrom, the evidence is sufficient to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Giles, 500 Pa. 413, 417, 456 A.2d 1356, 1358 (1983); Commonwealth v. Bachert, 499 Pa. 398, 402, 453 A.2d 931, 933 (1982); Commonwealth v. Darden, 311 Pa.Super. 170, 172, 457 A.2d 549, 550 (1983); Commonwealth v. Ruth, 309 Pa.Super. 458, 461, 455 A.2d 700, 701 (1983); Commonwealth v. Fortune, 305 Pa.Super. 441, 443, 451 A.2d 729, 730 (1982).

On July 3, 1981, at or about 7:20 o’clock, a.m., appellant and his brother were found stripping a Buick which had been stolen less than an hour before. When police came upon the stolen car in a vacant lot, appellant was observed jacking up the rear of the vehicle and removing the lug nuts from a wheel. Three other wheels had already been removed and had been placed in a Cadillac standing nearby. When the police approached, appellant fled. After he was found and arrested, the police returned to examine the stolen Buick. The engine was then found to be warm; and the ignition had been tampered with so that the vehicle could be started by depressing a rod within the steering column. The trunk lock and the spare tire had been removed.

Appellant’s unexplained possession of the recently stolen automobile was a circumstance which permitted the finder of fact to draw an inference that appellant had stolen the car. Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965); Commonwealth v. Wilson, 312 Pa.Super. 77, 80, 458 A.2d 244, 245 (1983); Commonwealth v. Thomas, 305 Pa.Super. 158, 164, 451 A.2d 470, 473 (1982). See also: Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974) (plurality opinion); Commonwealth v. Plath, 267 Pa.Super. 1, 405 A.2d 1273 (1979). When considered with evidence of appellant’s flight, the evidence was clearly sufficient to support appellant’s conviction. Commonwealth v. Wilson, supra 312 Pa.Super. at 81, 458 A.2d at 245; Commonwealth v. Wilson, 294 Pa.Super. 101, 104, 439 A.2d 770, 771 (1982). See: Commonwealth v. Davis, 491 Pa. 363, 370 n. 4, 421 A.2d 179, 182 n. 4 (1980); Commonwealth v. Osborne, 433 Pa. 297, 302, 249 A.2d 330, 333 (1969); Commonwealth v. Gease, 304 Pa.Super. 433, 436, 450 A.2d 989, 990 (1982); Commonwealth v. Jones, 298 Pa.Super. 199, 204, 444 A.2d 729, 731-732 (1982); Commonwealth v. Rough, 275 Pa.Super. 50, 62, 418 A.2d 605, 611 (1980); Commonwealth v. Lloyd, 239 Pa.Super. 273, 278, 361 A.2d 430, 432 (1976).

Appellant was arrested on July 3, 1981. Under the mandate of Pa.R.Crim.P. 1100, the Commonwealth was required to bring him to trial on or before December 30, 1981. Appellant’s trial did not commence until January 12, 1982. However, the trial court, on timely petition of the Commonwealth, had granted an extension to accommodate the January 12 trial date set by the court administrator. Appellant contends that the granting of the extension was error.

A preliminary .hearing on the charges brought against appellant was set for July 10, 1981, but the hearing was continued because the Commonwealth was not then ready to proceed. On July 28, 1981, appellant was released on bail. A continued hearing, set for July 31, 1981, was postponed because the victim failed to appear; the hearing was rescheduled for August 24, 1981. On this later date, the hearing was again continued, this time because appellant failed to appear. In fact, he had been arrested and incarcerated on unrelated charges. A rescheduled hearing for September 16 was also continued because the arresting officer had been injured and was unable to be present. The preliminary hearing was finally held on October 7. A prima facie case was presented, and the charges against appellant were returned to court. Appellant was arraigned in prison on November 10, when trial was set by the court administrator’s office for January 12, 1982. The Commonwealth immediately filed, on November 17, a petition to extend the time within which to commence trial. A hearing thereon was held prior to trial on January 12, 1982.

On that day, the court heard testimony to determine if the Commonwealth had exercised due diligence to commence trial within 180 days. The hearing was not completed, however, for the assistant trial coordinator from the office of the court administrator, who possessed the information regarding the availability of trial dates on November 10, 1981, was not available to testify. The judge announced that he was aware that the court administrator’s office and not the District Attorney’s office had been responsible for setting the trial date and that its known practice was to select the first available date for trial. Nevertheless, the judge requested that the presence of the assistant trial coordinator be obtained while the case was being tried. So as not to delay the trial, he required the parties to proceed, intending to hear the testimony of the assistant trial coordinator at a later time. Unfortunately, the assistant coordinator was not immediately available. The trial, being brief, was completed, and appellant was found guilty. At the conclusion of the trial, the trial judge again announced his intention to hear from the assistant trial coordinator. This testimony was presented on March 16, 1982, when the assistant trial coordinator testified that according to the court’s schedule as it was known to him on November 10, 1981, January 12, 1982 had been the earliest possible date on which he could schedule appellant’s trial. Because the delay in commencing trial had been caused by a lack of available judges and courtrooms, the court reaffirmed its prior order granting the Commonwealth’s petition for extension.

The rule is that “a court may grant the Commonwealth an extension of time for trial if it finds that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Pa.R.Crim.P. 1100(c).” Commonwealth v. Bright, 303 Pa.Super. 98, 102, 449 A.2d 596, 598 (1982), quoting Commonwealth v. Sharp, 287 Pa.Super. 314, 317, 430 A.2d 302, 304 (1981). The Commonwealth, of course, bears the burden of proving due diligence.

“The trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the due diligence of the prosecution, and (2) the certification that the trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the cause of the court delay and reason why the delay cannot be avoided.”

Commonwealth v. Lamb, 309 Pa.Super. 415, 422, 455 A.2d 678, 682 (1983), quoting Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-1350 (1976). Accord: Commonwealth v. Levitt, 287 Pa.Super. 115, 429 A.2d 1126 (1981). The Commonwealth met its burden in the present case.

Despite appellant’s argument to the contrary, we find it unnecessary to assess blame for the delay in holding a preliminary hearing. Despite such delay, the Commonwealth moved expeditiously following the time when the charges against appellant were returned to court. In fact, appellant was arraigned on November 10, 1981, this being fifty days prior to the run date. There is no rule requiring an earlier arraignment; neither does the rule require a trial in something less than 180 days. Here the Commonwealth was prepared to try appellant within the prescribed time, but the court administrator’s trial coordinator was unable to find a courtroom for trial prior to January 12, 1982. Trial, therefore, was scheduled for that date. The scheduling of the trial date was not under the control of the District Attorney; rather, the trial date was set by the court administrator’s office. Its inability to set a trial date prior to December 30, 1981 was attributable solely to judicial delay. Under such circumstances, the granting of an extension was proper. See: Commonwealth v. Mayfield, supra; Commonwealth v. Lamb, supra; Commonwealth v. Franklin, 306 Pa.Super. 382, 452 A.2d 777 (1982); Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982); Commonwealth v. Royer, 256 Pa.Super. 361, 389 A.2d 1165 (1978).

Appellant also complains because he was required to commence trial before the court had completed the hearing on the Commonwealth’s extension petition. At the hearing on January 12, 1982, the court required evidence that the date set for trial by the court administrator’s assistant trial coordinator was the earliest available date consistent with the court’s business. The official having such information was not then available to testify. Rather than delay the start of trial, the court reserved the right to call such official at a later time, if necessary, and made a determination that the petition would be granted if such evidence were presented. After the trial had been completed and a finding of guilty returned, the court received testimony from the assistant trial coordinator, found that January 12, 1982 had been the first trial date available consistently with the court’s schedule, and reaffirmed its decision to grant the extension.

This procedure is not to be recommended. In the instant case, however, we find no prejudice to appellant and, therefore, no basis for reversal. Rule 1100 is an administrative rule; it is designed to protect an accused’s right to a speedy trial and also to protect society’s right to effective prosecution of criminal cases. Commonwealth v. Genovese, 493 Pa. 65, 69-70, 425 A.2d 367, 369-370 (1981). See: Commonwealth v. Martin, 306 Pa.Super. 108, 452 A.2d 238 (1982); Commonwealth v. Sheppard, 305 Pa.Super. 283, 451 A.2d 533 (1982). “So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.” Commonwealth v. Genovese, supra 493 Pa. at 72, 425 A.2d at 371.

Rather than delay the trial until the assistant trial coordinator became available to testify in pre-trial proceedings, the judge deferred the receipt of the coordinator’s testimony and made a tentative finding based on his own knowledge regarding the operating procedure of the court administrator’s office. As a general rule, the order in which evidence is received is vested in the sound discretion of the trial judge, whose exercise thereof will not be disturbed in the absence of a manifest abuse. See: Commonwealth v. Smallwood, 497 Pa. 476, 484, 442 A.2d 222, 225 (1982); Commonwealth v. Burns, 409 Pa. 619, 637, 187 A.2d 552, 561-562 (1963); Agate v. Dunleavy, 398 Pa. 26, 28-29, 156 A.2d 530, 531 (1959); 38 P.L.E., Trial § 61. See also: Commonwealth v. Mokluk, 298 Pa.Super. 360, 365, 444 A.2d 1214, 1217 (1982); Silver v. Miller, 204 Pa.Super. 16, 18, 201 A.2d 308, 309 (1964); 38 P.L.E., Trial § 66. There was no abuse of that discretion under the circumstances of this case.

Appellant contends that the procedure adopted by the trial court was contrary to the holding in Commonwealth v. Abridge, 492 Pa. 90, 422 A.2d 487 (1980). We disagree. In that case, the Supreme Court held that after an extension hearing had been concluded, a reviewing court could not thereafter remand to give the Commonwealth a second opportunity to prove facts not proven during the original hearing. See also: Commonwealth v. McFadden, 300 Pa. Super. 299, 303, 446 A.2d 624, 626 (1982); Commonwealth v. Dixon, 295 Pa.Super. 425, 429 n. 6, 441 A.2d 1305, 1307 n. 6 (1982); Commonwealth v. Carr, 292 Pa.Super. 137, 140-141, 436 A.2d 1189, 1191 (1981). In the instant case, the extension hearing had not been concluded; the completion of the Commonwealth’s evidence had been deferred so that the trial would not be delayed. This was no more than an exercise of the trial court’s discretion to determine the order of proof. Where, as here, appellant received a speedy trial and was proven guilty beyond a reasonable doubt, we will not reverse his conviction and order his discharge because of the order in which evidence was received by the trial court.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3921(a).