author: CERCONE, President Judge: HESTER, Judge,

text:
    474 A.2d 302
    Paul G. ESTEP, Appellant, v. Thelma R. (Sharp) ESTEP.
    Superior Court of Pennsylvania.
    Submitted June 7, 1983.
    Filed March 23, 1984.
    Reargument Denied June 5, 1984.
    Petition for Allowance of Appeal Granted Oct. 1, 1984.

      Joseph F. Cassarino, Greensburg, for appellant.
    P. Louis DeRose, III, Greensburg, for appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   CERCONE, President Judge:

The parties to this appeal were married on July 2, 1978 and separated in August 1980. Appellant-husband filed a complaint in divorce. On February 19, 1981, a hearing was held before a Master for purposes of determining the equitable distribution of marital property. Appellant filed exceptions to the Master’s report. After argument, the court affirmed the report and incorporated it into an order of court. By order dated October 13, 1981 the parties were granted a divorce under § 201(c) of the Divorce Code of 1980, 23 P.S. § 101 et seq. and the court ordered the equitable distribution of the parties “marital property.” The assets were divided as follows.

(1) That the proceeds of the Merrill, Lynch, Pierce, Fenner and Smith account of the parties shall be withdrawn by the parties and the proceeds applied to the mortgage or loan at Union National Bank, and any balance of the Merrill-Lynch Account shall be divided equally by the parties.

(2) The plaintiff husband shall have sixty days from the date of this decree within which to purchase the interest of the defendant wife in the residence property of the parties located at R.D. # 1, Irwin, Pennsylvania, for the sum of $27,500.00; in the event that plaintiff husband is unwilling or unable to purchase the wife’s interest in said residence property within sixty days of the date of this decree, the property shall be advertised for thirty days and exposed to a public sale and the proceeds be divided equally by the parties.

(3) Each party shall retain those items of personal property in the possession of such party. In all other respects, the parties shall have no claim against each other for any other personal property.

* * * * * *

(5) In the event plaintiff husband exercises his right to purchase the interest of the wife in the residence property of the parties, in accordance with paragraph two above, the plaintiff husband shall pay to the defendant wife, the sum of $55.00 the first month after the date of this decree, and $50.00 per month thereafter, until the sum of $1,555.00, representing defendant wife’s one-half interest in the excess of the personal property withdrawn by the plaintiff husband, has been repaid to the plaintiff wife. In the event plaintiff husband does not exercise his right to purchase the wife’s interest in the residence property of the parties and the residence is sold, the plaintiff husband’s share of the proceeds shall be reduced by the sum of $1,555.00 and the same shall be added to the defendant wife’s share of the proceeds of said sale.

The “Opinion and Decree” of the court below incorporated the various findings of fact made by the Master and discussed their relevance in light of the pertinent statutory factors to be considered pursuant to § 401(d) of the Code. Appellant being unhappy with the Master’s apportionment as accepted by the court, has filed the current appeal presenting six issues.

Equitable distribution is within the discretion of the trial court and its decision will not be disturbed absent an abuse of that discretion. Kleinfelter v. Kleinfelter, 317 Pa.Superior Ct. 282, 463 A.2d 1196 (1983); Gee v. Gee, 314 Pa.Superior Ct. 31, 460 A.2d 358 (1983). In reviewing such we must keep in mind that the Master and the trial court were free to accept or reject the parties’ testimony. Gee, 314 Pa.Superior Ct. at 34-5, 460 A.2d at 360. While we must give the fullest consideration to the Master’s findings regarding credibility, we have a responsibility to make a complete and independent review of the record. Rorabaugh v. Rorabaugh, 302 Pa.Superior Ct. 1, 448 A.2d 64 (1982); Rollman v. Rollman, 280 Pa.Superior Ct. 344, 421 A.2d 755 (1980). Finding that the trial court included non-marital property in its order of equitable distribution, we believe the court abused its discretion and therefore we vacate its order. Before addressing appellant’s complaints, a review of the statutory provisions controlling equitable distribution is necessary.

Section 401(d) requires a court in proceedings for divorce to resolve, upon request, the marital property rights of the parties. In resolving such, a court must consider all relevant factors including:

(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

The Code, § 401(e) defines “marital property” as “all property acquired by either party during the marriage” with the exception of:

(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.
(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958. Public Law 85-857, 72 Statute 12291, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.
(7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for the divorce are commenced. (Footnote deleted.)

The legislature has further provided in subsection (f) that:

(f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

In applying the above provisions to the facts of the case at hand, we must keep in mind that the legislature has declared it to be the policy of the Commonwealth to:

Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

23 P.S. § 102(a)(6).

Finding that both the Master and the court erred in their determination as to what comprised marital property, we hold that the equitable distribution award was improper.

Appellant first contends that he was entitled to a “substantially greater interest in the parties’ real estate” than appellee was. The parties had taken up cohabitation seven months prior to their marriage. During such period of time appellee-wife paid for the various household expenses and did the various household chores while appellant-husband, who was not employed, cleared a parcel of land and commenced building a house. He had purchased the lot with his own funds but had placed the title in joint name with appellee. Prior to the marriage appellant consumed his own funds in building the residence.

At the time the parties were married, the house was about 80% completed. After the marriage the deed was placed in the name of the parties as tenants by the entire-ties. Appellant finished the house during the marriage and appellee and her daughter by a former marriage assisted by painting and varnishing and doing other similar household work. Before the house was completed $8,000 of appellee’s own premarital savings was expended on completing the house. The parties also took out a $6,000 loan from a commercial lender on which appellant has made payments and appellant’s mother provided $6,000 to finish the home.

The court found that the parties had made equal contributions to the house and therefore should share in it equally. To reach its conclusion, the trial court viewed appellee’s contributions as both breadwinner and homemaker prior to marriage as her contribution in acquiring the house which it deemed to be marital property. Appellant complains that his premarital contribution of both money and time was greater than appellee’s and therefore he was entitled to a greater share. We find that the parties’ efforts in anticipation of marriage should not have been considered as marital property.

Equitable distribution is relatively new to this Commonwealth, having been enacted as part of the Divorce Code of 1980. Prior to the enactment of the Code, the determination of the parties property rights to joint property was limited to an action in partition. See Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976). With the adoption of the new Divorce Code, a husband and wife are entitled to an equitable distribution of the property of the marriage. However, if the property is not marital property then the court may direct its partition. Platek v. Platek, 309 Pa.Superior Ct. 16, 454 A.2d 1059 (1982).

Only property acquired during the marriage is deemed marital property. See Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); 23 P.S. § 401(f). Therefore, by definition, property acquired prior to the marriage is not marital property and under § 401(d), which only empowers the court to equitably distribute marital property, it may not be distributed. Here the parties agree that the real property had been purchased and 80% of the construction had been completed prior to the time the parties wed, therefore, that portion of the residence was not marital property within the meaning of equitable distribution. Hence the court erred in equitably proportioning the entire value of the residence.

Our holding is in agreement with cases from our sister state New Jersey, which has been faced with similar problems before our Divorce Code was enacted. Cf. Griffith v. Griffith, 185 N.J.Super. 382, 448 A.2d 1035 (1982) (where one spouse had purchased realty prior to marriage, other spouse was only entitled to share in the amount of mortgage paid during marriage); Mol v. Mol, 147 N.J.Super. 5, 370 A.2d 509 (1977) (where husband brought residence into marriage, wife was only entitled to share in enhanced value of house due to couple’s joint efforts during marriage.) See also In Re Marriage of Johnson, 28 Wash. App. 574, 625 P.2d 720 (1981). We must however note one factual distinction between the current case and those of our sister state New Jersey. In both Mol, supra, and Griffith, supra, the property had not been held, prior to the marriage, as joint property. However, this distinction does not require a different result. By statutory definition such property is not marital property subject to equitable distribution, but instead the property may be subject to partition. See Platek, supra. Since the property is not marital property, at least in part, a court need not and should not look to the respective contributions of the parties in acquiring such non-marital asset.

This, court is not to usurp the trial court’s duty as factfinder and we will not adopt guidelines or presumptions in addition to those set forth by the legislature. See Ruth v. Ruth, 316 Pa.Superior Ct. 282, 462 A.2d 1351, 1353 (1983). Nonetheless, we are constrained to find that the inclusion of non-marital property by the trial court goes beyond the clear legislative mandate and is therefore an abuse of discretion. Therefore we remand for further proceedings.

We must also agree with appellant that the court committed an abuse of discretion in dividing the Merrill-Lynch account. The trial court found that it was uncontested that appellant had placed into that account $2,500 representing the proceeds from the sale of property which he had owned prior to the marriage. Such is clearly excludable as marital property under § 401(e)(1). Compare, Gee, supra, (cattle brought into marriage were not traceable to cattle present at separation); Platek, supra, (one’s physical well being does not constitute property acquired prior to marriage). Nor is the presumption that a gift of one half was made to appellee appropriate in the context of equitable distribution. In other circumstances, funds deposited in a joint account might be presumed to be a gift to the co-tenant. See In Re Estate of Gladowski, 483 Pa. 258, 396 A.2d 631 (1979). The Divorce Code requires us to look beyond the title in which property is held, § 401(f). To rely upon the above presumption of a gift to the co-tenant would require us to ignore the Code’s clear directive to disregard the notion of title ownership and would require us to contravene the clear intent of the legislature.

The remaining balance of $3500 present in the account requires a different result. Appellant contends the balance resulted from earnings he himself accumulated doing odd jobs during the marriage and appellee made no contribution thereto. As stated earlier, assets acquired during the marriage are presumed to be marital property. The fact that appellant’s efforts created the fund is not controlling. The Supreme Court noted in Bacchetta, 498 Pa. at 232, 445 A.2d at 1197, that one of the main purposes of the Divorce Code was to correct the economic injustices suffered by a non-working spouse who has contributed his or her time to the family or home enabling the other to realize economic gain. Appellant’s contention of injustice is even more unacceptable than that pointed out in Bacchetta. Here appellee not only was the homemaker but she also was the main bread-winner. Both roles must be considered under § 401(d)(7). Justice demands that the balance of $3500 be included as marital property.

The Code requires courts to consider such factors as the parties’ sources of income, 401(d)(3) and (6), the value of property set aside, 401(d)(6) and the economic circumstances of each party 401(d)(10). In other words, in determining what is equitable, the courts must view the parties situation in light of the totality of the circumstances. Having found error in the, court’s rulings as to major assets of the marriage, all other finding as to the disposition of the various assets must be reconsidered. Therefore, we find it necessary to review appellant’s other complaints so to provide guidance to the trial court.

Appellant next complains that the $6,000.00 provided by his mother was a loan and not a gift. The Master and the court found that the $6,000.00 was a marital gift to both parties. Section 401(e) provides that all property acquired during the marriage is presumed to be marital property. Appellant failed to overcome such presumption. No documents were executed to evidence any understanding between the parties and appellant’s mother’s own testimony was indefinite. Therefore, we can find no abuse of discretion in including the $6,000.00 as marital property.

Additional complaint is made that the court erred in its consideration of the insurance policies owned by the parties. The Master found that the parties’ insurance balanced each other out. The trial court found the parties’ insurance “insignificant.” Section 401(d)(6) requires consideration of the parties’ respective insurance coverage. In view of the fact that appellee’s various policies had relatively small surrender values which were accumulated substantially prior to marriage and due to appellant’s hazy account of his own insurance, we can find no abuse of discretion in the court discounting the importance of the policies.

Appellant’s next argument is that the $3,800 in cash which he removed from the parties’ safe deposit box should not have been included as marital property as it belonged to a third party. He testified that the third party gave him the money to pay for materials and additional labor for the remodeling of the third party’s house. Appellee-wife did not know where the money came from. The trial court, after mentioning that the best evidence would have been testimony by the third party (who allegedly passed away though his wife was still alive), found that the Master had the responsibility to assess credibility and found no error in the Master disbelieving appellant’s account. We agree, especially in light of appellant’s failure to produce any documents regarding the project. Furthermore, he was indefinite as to how many rooms he had remodeled and he was evasive as to what renumeration he received from the job.

Finally, appellant contends that the Master overvalued the real estate. The inventory and appraisement executed by the parties set the value of the house at $55,000 to $60,000. Both the Master and the court accepted appellant’s value as stated in his inventory. We find no abuse of discretion. Compare, Gee, supra, (Master relied upon appraisal report stipulated to by the parties).

For the above stated reasons, which require a fresh approach to equitable distribution in this case, we vacate the order of court and remand for further proceedings not inconsistent with this opinion. We realize, that under the circumstances of this case, upon remand the same result may be reached as was reached before. However, due to the far reaching ramifications and the likelihood of similar situations arising in the future, we believe it necessary to offer the above guidance to both the bench and bar of this Commonwealth. We can not reiterate often enough that in equitably distributing marital property, the hearing court must consider the statutory factors listed in § 401(d). In the current case, the court on remand must reconsider the various assets in light of such factors.

Order vacated and case is remanded for further proceedings. We do not retain jurisdiction.

HESTER, J., files a concurring and dissenting opinion.

HESTER, Judge,

concurring and dissenting:

Additional facts, excluded by the majority, may facilitate a more complete understanding of the matter. At the time of trial, appellant was 65 years of age and appellee was 59 years of age. They were married on July 2, 1978, following seven months of cohabitation. No children were born of the marriage, and both parties were married once before.

Appellant received $342.00 per month in social security benefits and an average monthly compensation of $400.00 from his part-time employment as a carpenter. But for restrictive health problems, appellant had a much higher earning capacity as a carpenter. Appellee was receiving $323.00 per month in social security benefits and $303.57 per month as a disability pension from Equitable Life Insurance Company. Prior to suffering a heart attack in September, 1979, appellee was earning $1,000.00 per month.

The master identified the following marital property subjected to equitable distribution:

1. a stock fund with Merrill, Lynch, Pierce, Fenner & Smith in the amount of $6,000.00;
2. a savings account with Franklin Federal Savings & Loan Association in the amount of $590.00;
3. a checking account with Union National Bank in the amount of $100.00;
4. a safe deposit box containing $3,800.00;
5. A Bolens riding lawn mower without an estimated value;
6. a second-hand refrigerator without an estimated value;
7. a living room round table purchased for $25.00;
8. a picnic table purchased for $30.00;
9. a bedroom suite without an estimated value;
10. residential real estate situate at Irwin, Pennsylvania, constructed by the parties themselves with the assistance of a bricklayer, electrician and plasterer at a cost of $33,000.00, and having a fair market value of $55,000.00.

First, appellant challenges the equal interests in the marital residence assigned by the master. In 1977, appellant purchased the lot upon which the parties eventually constructed their house. The thirty-three-thousand-dollar cost for the unimproved land, materials and labor in constructing the house was provided by a nine-thousand-dollar mortgage loan from Union National Bank, $8,000.00 from appellee, $6,000.00 from appellant’s mother and $10,000.00 from appellant.

Appellant emphasizes the fact that he paid $3,750.00 for the unimproved lot prior to the marriage and that his premarital earnings were the source of the entire purchase price. Secondly, he points out that he worked full-time from March, 1978 through September, 1978 constructing the house, and that the house was 80% completed on the marriage date of July 7, 1978. Appellant concludes that his contributions to the house were substantially greater than appellee’s, thereby warranting an award to him in excess of 50% of the parties’ equitable interest in the fair market value of the house.

Section 401(e) of the Divorce Code defines “marital property”:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.
(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.
(7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for the divorce are commenced.
23 Pa.C.S. § 401(e).

The real estate here was purchased prior to the marriage in an unimproved condition and with funds fully provided by appellant. Although the parties were not married on the date of purchase in 1977, both names were placed upon the deed as purchasers. Since the property was acquired prior to marriage, we are presented with the issue of whether its entire fair market value is subjected to equitable distribution, whether the entire value is excluded or whether only that amount reflecting the increase in value from the date of marriage is marital property. This is a novel issue for our appellate courts insofar as the parties began cohabitating around the time the unimproved real estate was purchased and for seven months thereafter, until their marriage on July 7, 1978.

The increase in value of separate property following the date of marriage has been widely viewed as marital property particularly where the increase resulted from the joint contributions and efforts of the parties. In Re Marriage of Johnson, 28 Wash.App. 574, 625 P.2d 720 (1981); Mol v. Mol, 147 N.J.Super. 5, 370 A.2d 509 (1977). I am convinced that this is at least the case before us. The parties moved into the residence immediately following their marriage even though the residence was only 80% complete. For the next two months, during which construction continued, appellant devoted his full time to construction work while appellee remained employed and solely defrayed the expenses of utilities, household sundries, real estate taxes and the mortgage loan. Appellee also performed the daily housekeeping chores without assistance from appellant.

Although it is not readily determinable whether the entire value of an asset jointly purchased by both parties before marriage and retained following the marriage constitutes marital property, I am of the opinion that it does so qualify here. Section 401(e) defines marital property as “property acquired by either party during the marriage ...” I do not construe this definition as all-inclusive; therefore, it does not preclude me from finding the full value of property acquired prior to marriage to qualify, under certain circumstances, as marital property. It is particularly noteworthy that both parties’ names were placed on the deed to the real estate when it was purchased in 1977. Although appellant used $3,750.00 of his funds to purchase the lot and spent nearly four months prior to the marriage constructing a large portion of the house, appellee also made significant contributions. For seven months prior to the marriage, the parties lived together as husband and wife. During that time, appellee was employed and performed the same duties alluded to above, namely, housekeeping chores and paying the expenses of maintaining their apartment. It is clear that the purchase of the lot in joint names, the cohabitation and the duties performed by both parties were done in contemplation of marriage. Under these circumstances, then, the entire value of the real estate was marital property and the Order directing an equal distribution of the equity therein was not an abuse of discretion. Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982).

It is also appellant’s contention that the six-thousand-dollar stock fund with Merrill, Lynch, Pierce, Fenner & Smith was not marital property due to the alleged fact that the full investment was from his pre-marital funds. Specifically, appellant maintains that $2,500.00 in the stock fund originated from proceeds realized by him on the sale of real estate prior to the marriage. The remaining $3,500.00 resulted from his carpentry earnings during marriage.

Although $2,500.00 was accumulated by appellant prior to the marriage, it was placed in a stock fund bearing both parties’ names; therefore, it appears that appellant intended to give an undivided one-half interest in these pre-marital earnings to appellee. The creation of a joint interest in a bank account with rights of survivorship is prima facie evidence that the party funding the entire account intended an inter vivos gift. In re Estate of Gladowski, 483 Pa. 258, 396 A.2d 631 (1979); In re Estate of Young, 480 Pa. 580, 391 A.2d 1037 (1978). In addition to transferring an undivided one-half interest in these assets to appellee as donee, it is also apparent to me that appellant placed these funds in joint names with appellee in contemplation of marriage. Therefore, I consider the real-estate and the two-thousand-five-hundred-dollar portion of the stock fund in the same vein. I am not troubled by the fact that a portion or all of the $2,500.00 might have been earned by appellant prior to cohabitation.

It is neither necessary nor reasonable to expect a spouse in appellee’s position to enforce her interest in the real estate and the $2,500.00 through partition. Where parties improve property and convey theretofore solely-owned property to joint names in the expectation of marriage, I conceive of no compelling reason why such property should not be considered “marital property.” As I alluded to earlier, the definition of “marital property” in § 401(e) of the Divorce Code is not all-inclusive. Furthermore, the purchase or receipt of property by one party prior to marriage, who later transfers that property into joint names with his future spouse prior to marriage, might determine how that property is to be equitably divided, but should not determine whether it is “marital property.” Afterall, divorce courts, with their equity powers, are as well-equipped to equitably divide property as equity courts in partition actions.

I, too, am not persuaded that appellant’s carpentry work produced the additional $3,500.00 in the stock fund, due to the fact that he alluded to no particular jobs which generated these funds. Nevertheless, assuming such money was generated by appellant alone, his argument still fails. Once again, appellant placed the money in a jointly-owned stock fund. Moreover, he generated the $3,500.00 during the marriage while appellee was the sole wage earner, sole payor of household bills, sole provider of staples and sundries and sole housekeeper. The one-half division of the Merrill Lynch funds correctly reflects these facts.

Next, appellant avers that the six-thousand-dollar payment from his mother to him and appellee was a loan and not a gift; consequently, it was not marital property subject to equitable distribution. A gift is complete where there is delivery, either actual or constructive, and intent to make a gift at the time of delivery. In re Estate of Koska, 176 Pa.Super. 519, 108 A.2d 829 (1954).

Appellant’s mother, Agnes Beach, gave $6,000.00 to the parties for the costs of constructing the house. Appellant produced no written evidence of a loan such as a promissory note or agreement. Moreover, appellant and his mother were particularly vague when asked whether the six-thousand-doilar loan was to be repaid. None of the money was repaid as of the date of the master’s hearing. Furthermore, a transfer of cash from one relative to another is a factor heavily considered when determining donative intent. See Wagner v. Wagner, 466 Pa. 532, 353 A.2d 819 (1976). Under the facts and circumstances, I agree with the majority that there was no error in the lower court’s determination that the six-thousand-dollar payment was a gift.

According to appellant, the court erred in valuing the real estate at $55,000.00; $50,000.00 was a more realistic value. Both parties filed Inventory and Appraisement Statements. In his Statement, appellant valued the real estate within the range of $55,000.00 to $60,000.00; however, he testified before the master that the range was too high. Appellant produced no expert testimony in support of the fifty-thousand-dollar fair market value. Appellee valued the real estate in her Statement at $55,000.00 and confirmed that amount at the hearing. Accordingly, the fifty-five-thousand-dollar determination was based upon credible testimony, an assessment beyond appellate scrutiny.

Finally, appellant avers that he had no life insurance while appellee had substantial life insurance. As a result, appellant wants these facts reflected in the final distribution order.

On the contrary, appellant testified that he was provided some insurance through the Veterans of Foreign Wars and the National Rifle Association. On the other hand, appellee’s life was covered by a group life policy by her employer, Westinghouse. It had no cash value. She also had four life insurance policies with face values of $1,000.00, $1,000.00, $500.00 and $150.00, and respective cash surrender values of $137.53, $90.00, $74.45 and $26.08. In light of appellant’s vague and contradictory testimony on the face and cash-surrender values of his policies and the minimal cash surrender values of appellee’s policies, we find no error in the court’s decision not to offset an otherwise equal and equitable division of insurance holdings.

Accordingly, I would affirm.

      . Paragraph (4) of the order, which is not here reproduced, deals with the assessment of costs and is not a matter on appeal.

      . Appellant testified that the total outlay, excluding his own time, in constructing the house was $33,000.00 or $34,000.00. If we total the marital expenditures they total more than 20% of the total building price. Therefore, on remand the trial court should reconcile the premarital “80% completed” with the marital expenditures.

      . We do not intend to minimize a couple’s efforts in anticipation of marriage, however it is the responsibility of the legislature, or the parties themselves by agreement, to provide for the inclusion of pre-marital property accumulated in anticipation of marriage.

      . Any interest earned on such sum would be marital property under § 401(e)(1).

      . Appellant did make payment on the commercial bank loan and did pay for a weekly night out.

      . Appellee set the price at "at least $60,000” while appellant valued it at $55,000 to $60,000.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    474 A.2d 313
    COMMONWEALTH of Pennsylvania v. Francis J. KENNY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1983.
    Filed March 30, 1984.

      Kevin P. Kelly, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

Appellant was convicted, following a non-jury trial, of the murder of his wife and the poisoning of his infant son. He was sentenced to a term of life imprisonment on the first degree murder conviction and received lesser concurrent sentences on the charges of aggravated assault and possession of an instrument of crime.

At trial and before us appellant admits to having killed his wife, but contends that he lacked the specific intent to kill necessary to a first degree murder conviction. He also contends that prejudicial evidence was introduced at trial which entitles him to a new trial. We affirm.

We will begin our discussion with appellant’s claim that the murder conviction is not supported by sufficient evidence, since he argues, the evidence shows that he lacked the specific intent to kill.

The well-established test for reviewing claims of insufficiency of evidence was recently stated by our court in Commonwealth v. Hogan, 321 Pa.Super. 309, 312, 468 A.2d 493, 495 (1983) as follows:

“The test of sufficiency of the evidence — irrespective of whether it is direct or circumstantial, or both — is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [trier of fact] could properly have based [the] verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.” Commonwealth v. Minoske, 295 Pa.Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord: Commonwealth v. Giles, [500] Pa. [413, 415], 456 A.2d 1356, 1357 (1983); Commonwealth v. Wilcox, 310 Pa.Super. 331, 336, 456 A.2d 637, 639 (1983). In reviewing the evidence, we must consider it in the light most favorable to the Commonwealth, which won the verdict in the trial court. Commonwealth v. Durrant, [501] Pa. [147, 151], 460 A.2d 732, 733 (1983); Commonwealth v. Bachert, [499] Pa. [398, 406], 453 A.2d 931, 933 (1982); Commonwealth v. Kennedy, [499] Pa. [389, 392], 453 A.2d 927, 928 (1982).

To convict appellant of murder in the first degree the fact finder must have found that he committed an intentional killing — i.e. a willful, deliberate or premeditated killing. See 18 Pa.C.S. § 2502(a), (d).

In Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614, 606-617 (1981) our Supreme Court explained that “Since one’s state of mind is subjective, the specific intent to kill may be inferred from the perpetrator’s conduct, including the intentional use of a deadly weapon in a vital part of the body of another human being.”

Furthermore, the Green opinion explains that

Moreover, our cases have held that the period of premeditation necessary to form the requisite specific intent may be very brief, Commonwealth v. Robinson, 468 Pa. [575] at 583, 364 A.2d [665] at 669. Indeed, “design to kill can be formulated in a fraction of a second,” and premeditation and deliberation exist “whenever there is a conscious purpose to bring about death.” (citation omitted).

Id., 493 Pa. at 415, 426 A.2d at 617.

The evidence adduced at trial indicated that appellant and his wife had been discussing the subject of a marital separation for approximately two weeks prior to Mrs. Kenny’s death. During the morning of September 14, 1980 the couple met with Mrs. Kenny’s mother to discuss the terms of the separation. Later in the day Mrs. Kenney had dinner at her grandmother’s house. The Kenny’s infant son, Frank, Jr., was with his mother at dinner, but Mr. Kenny apparently remained at home. Sometime after her return to their home on the evening of the 14th, Mrs. Kenny and her husband apparently argued. Mr. Kenny retrieved a knife from the kitchen. The couple struggled, Mr. Kenny strangled his wife and then stabbed her with the knife, inflicting a deep wound in her chest that caused internal bleeding. Mrs. Kenny died late on the 14th or early in the morning of the 15th.

After strangling and stabbing his wife, Mr. Kenny carried her to their bedroom on the second floor of the home and placed her in the bed. He placed the infant in his crib and then inflicted wounds upon himself by slashing his wrists.

Mr. Kenny apparently drifted in and out of consciousness throughout the night, but at some point he went to the kitchen on the first floor and mixed iced tea with Drano. He then fed the concoction to his son.

At approximately 9:00 on the morning of the 15th Mr. Kenny called his mother-in-law at her place of employment and asked her to go to his home to “save the baby”. When Mrs. Mattia arrived she found her daughter’s dead body in the couple’s bed where Mr. Kenny was also lying, face down, and bleeding from his wrists.

Mr. Kenny and his son were both hospitalized and survived the tragedy.

It is appellant’s contention that he lacked the specific intent to kill because he suffered from “diminished capacity.”

In Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976) our Supreme Court held that psychiatric evidence could be used in support of the diminished capacity defense which it explained as follows:

An accused offering evidence under the theory of diminished capacity concedes general criminal liability. The thrust of this doctrine is to challenge the capacity of the actor to possess a particular state of mind required by the legislature for the commission of a certain degree of the crime charged.

Id., 468 Pa. at 221, 360 A.2d at 919-920. (emphasis in original).

The court distinguished the diminished capacity defense which it accepted from the doctrine of irresistible impulse, which it did not accept. As the court said,

“irresistible impulse is a test for insanity which is broader than the McNaghten test. Under the irresistible impulse test a person may avoid criminal responsibility even though he is capable of distinguishing between right and wrong, and is fully aware of the nature and quality of his act provided he establishes that he was unable to refrain from acting.”

In two later cases the Supreme Court indicated again that the diminished capacity defense is a limited one and is quite different than the theory of irresistible impulse.

First, in Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982) the Court held that the proffered psychiatric testimony did not tend to prove diminished capacity, but instead referred to an irresistible impulse under which the appellant was supposed to have acted. The court again rejected the irresistible impulse theory as a defense to murder. Thus the court rejected appellant’s attempt to introduce psychiatric evidence of his uncontrollable sexual urge to continue strangling his victim until the strangulation climaxed in death.

Most recently in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), the court rejected appellant’s argument that he should have been permitted to introduce psychiatric testimony that he had a “schizoid personality with paranoid features.” The court found that the proffered testimony was again an attempt to introduce evidence of irresistible impulse. The court explained:

By whatever name psychiatrist, or doctors or lawyers call it, an inability to control one’s self under certain circumstances is legally insufficient to justify an acquittal of murder, or a reduction of a first degree murder killing to [a murder of a lesser] degree.
The doctrine of “irresistible impulse” or in the modern psychiatric vernacular “inability to control one’s self”, whether used to denote legal insanity, or as a device to escape criminal responsibility for one’s acts or to reduce the criminal responsibility for one’s acts or to reduce the crime or its degree, has always been rejected in Pennsylvania, (emphasis in original).

Id., 500 Pa. at 34, 454 A.2d at 946.

We conclude that the evidence which appellant says showed his diminished capacity, like that proffered in Zettlemoyer and Weinstein, instead tended to show only irresistible impulse.

The psychiatrist testified in part as follows:

Q. Doctor, do you have a medical opinion to a reasonable medical certainty as to the Defendant’s state of mind at the time of the incident?
A. Yes, I do.
Q. Would you inform the Court of that, please?
A. The state of mind at the time was one of complete and total rage. There was no emotional control. And it was an absolute overwhelming outflow of emotions that were not under conscious control.
He was not able in any way to direct his actions at that particular time.
Q. Doctor, if you had to put a term on Mr. Kenny’s mental state, how would you do so, if you can?
A. On his mental state currently?
Q. No; at the time of the incident.
A. At the time of the incident, the only thing I can say is that he was totally and completely out of control.
Q. And that is from a mental standpoint, of course?
A. Yes.

And finally and most telling, the doctor testified on cross-examination:

Q. Doctor, you have described Mr. Kenny’s mental state at the time of his actions against his wife. Let’s focus on his wife first. Could you characterize Mr. Kenny’s actions as irresistible impulse, something that he couldn’t control?
A. I don’t believe that he could control himself.
Q. So it is an irresistible impulse?
A. Yes.

The psychiatric testimony introduced by appellant tended to show that he had had an unhappy childhood which led him to have an extreme reaction to the potential dissolution of his family. Tragic as appellant’s circumstances may have been, the evidence nonetheless fails to disclose a diminished capacity on his part, but rather, showed that he may have acted under an irresistible impulse.

We also must reject appellant’s claim to new trial which he premises on the introduction of prejudicial evidence.

The two instances in question are: (1) the questioning of a medical expert as to whether Mrs. Kenny was pregnant at the time of her death, and (2) the introduction of evidence of prior criminal activity by appellant.

We will dispense with appellant’s first argument by noting that the answer elicited by the medical examiner was that Mrs. Kenny had no evidence of being pregnant. While the line of questioning may not have been probative, it was harmless. We fail to see how evidence that his wife was not pregnant was prejudicial to appellant.

Appellant also contends that the introduction of evidence that he had tried to kill his first wife was prejudicial to him.

The evidence was introduced during cross-examination of defendant’s psychiatric witness. The witness, Dr. Glass, had testified at length during his direct examination as to appellant’s family history. While the doctor indicated that appellant had been married prior to his marriage to the deceased victim, he did not mention that appellant had told him that when his first marriage ended, he tried to kill his first wife. The report prepared by Dr. Glass prior to trial indicated that appellant had indeed told him of the attempt to kill his first wife. The prosecutor questioned Dr. Glass about the previous attempt and appellant objected.

Certainly it is true that as a general rule, evidence of prior criminal activity by a defendant is inadmissible. Commonwealth v. Martinez, 301 Pa.Super. 121, 447 A.2d 272 (1982). There are circumstances in which such evidence is admissible. See Commonwealth v. Martinez, supra; Commonwealth v. Shealey, 324 Pa.Super. 56, 471 A.2d 459 (1984) (evidence of prior criminal activity can be introduced to show motive, intent, absence of mistake or accident, common scheme or identity.) While we conclude that none of these circumstances is present in this case, we nonetheless find no reversible error in the cross-examination.

We note first that this trial was held before a judge sitting as the fact finder. Our Supreme Court has held the view that judicial fact finders are capable of disregarding most prejudicial evidence. See Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623, 625 (1980). See also Commonwealth v. Seigrist, 253 Pa.Super. 411, 385 A.2d 405 (1978); Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980).

Here the evidence was introduced during the cross-examination of an expert witness who had described appellant’s unhappy life, and in fact had said that appellant was not given to acts of rage or violence. Especially since this was a non-jury trial we will not find reversible error in the prosecution’s cross-examination, which pointed out the inaccuracy of Dr. Glass’ conclusion that appellant was not given to acts of violence. The judge was certainly capable of disregarding any prejudicial aspect the evidence may have had. Furthermore, the evidence of appellant’s guilt was very strong. In fact, he admitted the killing, but argued only that he should not be found criminally liable for it because of his diminished capacity to form the intent to kill. Under these circumstances, at a non-jury trial, the error, if any, was, at most, harmless. See Commonwealth v. Stokes, supra.

Judgment of sentence affirmed.

      . The inference as to motive which appellant suggests might have been drawn from this evidence, would have been drawn not from the medical examiner's testimony, but from the report made by appellant's psychiatric expert. •

      . Appellant states in his brief that he properly objected to this line of questioning. In fact it seems to us that his objection was not made until the prosecutor made a sarcastic comment about the safety of any future wife of appellant’s. We will assume, however, that the objection encompassed the entire line of questioning.


text:
    474 A.2d 318
    In the Interest of PATRICIA S. Appeal of Patricia RYAN, Foster Mother.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1983.
    Filed April 6, 1984.

      Arnold H. Cantor, Pittsburgh, for appellant.
    Mark P. Cancilla, Pittsburgh, for appellee.
    James A. Esler, Assistant County Solicitor, for participating party.
    Before SPAETH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

The threshold question before us in this appeal is whether, after notice of intent to adopt has been filed, the Orphans’ Court Division of the Court of Common Pleas has exclusive jurisdiction to determine the custody of a minor child who is the subject of the adoption proceeding. We conclude that under the circumstances present in this case the Orphans’ Court did not have exclusive power to determine the custody question. We further conclude that the custody order entered below should be affirmed.

Patricia Marie (Patty), the child who is the subject of these proceedings, was born on December 19, 1979 out of wedlock. On February 20, 1980 Patty was adjudicated dependent, having been diagnosed as a “failure to thrive” baby. The lower court explained in its opinion that at the time Patty was adjudicated dependent she was placed in the Parental Stress Center program, which is sponsored by Children’s Hospital of Pittsburgh. A child who participates in the program lives in residential placement under the care of a professional staff. The parents visit daily and undergo supervision and parental training.

The court said in its opinion that it was contemplated that Patty would be returned to the custody of her parents following their successful completion of the program. Unfortunately, Patty’s parents did not complete the program and on June 25, 1980 Patty was placed in the custody of appellant under the supervision of Children and Youth Services of Allegheny County (CYS).

On December 23, 1981 Patty’s father petitioned the Court to return custody to him.

A hearing on the father’s petition was held on January 13, 1982 following which the court issued an order extending review of the case to May 5, 1982 and directing that a CYS plan to return Patty to the custody of her father and his wife was to be implemented forthwith.

The CYS plan apparently provided that Patty’s father was to visit with his daughter. The foster mother requested the court to modify the plan to provide for more gradual contact saying that the plan called for too much contact too soon. That request was denied by Order of March 10, 1982.

On April 28, 1982 appellant filed a petition in the lower court in which she averred that she had commenced adoption proceedings concerning Patty in the Orphans’ Court Division of the Court of Common Pleas of Allegheny County. Appellant then argued that because adoption proceedings were pending, the Orphans’ Court had exclusive jurisdiction over Patty’s custody.

Appellant petitioned the lower court to continue the case pending completion of the adoption proceedings. The lower court denied her petition and on May 5, 1982 ordered that Patty be placed in the custody of her father and stepmother. This appeal followed.

Appellant bases her argument that the Orphans’ Court has exclusive jurisdiction to determine Patty’s custody on the terms of 20 Pa.C.S. § 711(8). 20 Pa.C.S. § 711(8) states:

Except as provided in section 712 of this code (relating to nonmandatory exercise of jurisdiction through orphans’ court division) and section 713 of this code (relating to special provisions for Philadelphia County), the jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division:
(8) Custody of minors. The determination of the right to the custody of a minor in connection with any proceeding for his adoption or for the appointment of a guardian of his person, except as provided in section 713 of this code.

We interpret this statute as the lower court did: it grants jurisdiction over custody matters to the Orphans’ Court Division within the context of an adoption proceeding. The custody order in this case, on the other hand, was entered in connection with the dependency proceeding that was commenced in the Juvenile Court Division in 1980. See 42 Pa.C.S. § 6303(a)(1); § 6351 as to the power of the Juvenile Court to enter custody orders in connection with dependency proceedings.

Appellant urges us, though, to find that certain decisions of our Supreme Court require that only the Orphans’ Court Division exercise jurisdiction over the instant custody matter.

Appellant cites to us Adoption of Snellgrose, 425 Pa. 258, 228 A.2d 764 (1967) as support for her theory. In that case an adoption petition was filed by a couple with whom the child resided. Following the institution of the adoption action in the Orphans’ Court, the child’s mother filed in the Court of Common Pleas a petition for writ of habeas corpus in order to obtain custody of her child. One judge took evidence in both cases, sitting as a judge on both the Orphans’ Court and the Court of Common Pleas. Our Supreme Court held that where an adoption proceeding is pending before the Orphans’ Court, a habeas corpus action to determine custody is under the exclusive jurisdiction of the Orphans’ Court, and if such a proceeding is brought in the Court of Common Pleas, it must either be dismissed or transferred to the Orphans’ Court.

The facts of the present case, are quite the reverse of those present in Snellgrose in that the adoption proceedings in the instant case were instituted after a dependency proceeding was commenced in the Juvenile Court.

Snellgrose does not control this case. Nor do we find persuasive the other authority cited by appellant. See e.g. Adoption of Ashton, 374 Pa. 185, 97 A.2d 368 (1953) (as in Snellgrose, the adoption proceeding was pending when a habeas corpus petition was filed.) To the same effect see Commonwealth v. White, 403 Pa. 55, 169 A.2d 69 (1961).

Contrary to appellant’s reading of Snellgrose and related cases, we would gather from those decisions that a party cannot divest one court (or here one division of a court) of jurisdiction over a matter, simply by filing another action.

On the other hand, we note that in Doyles’ Estate, 291 Pa. 263, 267, 139 A. 829 (1927) our Supreme Court stated, ... “[W]here two actions are brought, as here, in different courts, the one which first acquires control of the controversy will retain it to the exclusion of the other.” In Doyles’ Estate a partition petition was initially presented to the Orphans’ Court. However, one of the parties in interest was not named and the party subsequently initiated an equity proceeding in which she sought partition. The argument was advanced that because the petition filed in Orphans’ Court failed to name a party, it was a nullity and that the Common Pleas Court therefore had jurisdiction over the equity action. The court rejected this argument, affirmed that jurisdiction lay in the Orphans’ Court and noted 291 Pa. at 268, 139 A. 829, “It [Orphans’ Court] had the power to proceed and settle the controversy, if it could properly add the appellant as a party, notwithstanding the attempted litigation subsequently instituted in a court of concurrent jurisdiction.” (citation omitted).

See also First National Bank of New Wilmington v. Getty, 118 Pa.Super. 326, 179 A. 764 (1935).

We conclude that the jurisdiction of the Juvenile Court Division of the Court of Common Pleas over the instant case was not ousted by the filing of a Notice of Intent to Adopt in the Orphans’ Court Division of that Court.

Aside from the lack of precedent supporting appellant’s position, and the existence of what we find authority compelling the decision we reach, we note that if we were to decide the case as appellant urges, we would do real damage to the operation of the Juvenile Court and the laws it administers. This action began in Juvenile Court with the aim of reuniting Patty with her father. Only a few weeks before that contemplated result was to be achieved appellant sought to derail the proceedings. We cannot permit attempts like that made in this case to interfere with an ongoing proceeding.

In this regard we believe that the lower court correctly determined that custody of Patty should be returned to her father. The court carefully considered the testimony, expert and lay, and quite adequately explained its decision in its opinion. We need comment no further on the decision to return Patty to her father.

We, therefore, affirm the order.

      . As the lower court noted in its opinion:
      Failure to thrive is a serious medical condition in which a child’s height, weight, and motor development fall significantly short of the average growth rates of normal children. About 10% of failure to thrive cases have an organic cause; the rest result from disturbed parent-child relationships manifested in severe physical and emotional neglect of the child. Interdisciplinary Glossary On Child Abuse And Neglect, LEGAL, MEDICAL, SOCIAL WORK TERMS, DHEW Pub. No. (OHDS) 78-30137, reprinted in CHILD ABUSE AND NEGLECT LITIGATION, DHHS Pub. No. (OHDS) 80-30268 (March 1981).

      . The natural mother is not a party to this action.

      . At the time Snellgrose was decided the Orphans’ Court was a separate court, rather than, as it is now, a division of the Court of Common Pleas.


author: McEWEN, Judge:

text:
    474 A.2d 321
    MANUFACTURERS HANOVER TRUST COMPANY and Kayser-Roth Corporation, v. Regina KLUTSE and Lawrence Klutse, her husband. Appeal of Lawrence KLUTSE.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1983.
    Filed April 6, 1984.
    Donald Gordon Scheck, Stroudsburg, for appellant.
    William R. Kendall, Pennington, N.J., for appellees.

      Before McEWEN, BECK and HOFFMAN, JJ.
   McEWEN, Judge:

We here study an appeal from an order which sustained a default judgment entered against appellant and his wife. Appellant argues that the trial court erred when it denied his petition to strike the default judgment. We reverse.

This action in equity was commenced by complaint against appellant and his wife on September 18, 1980. Appellees averred embezzlement on the part of the wife and prayed that certain realty owned by the couple be held in constructive trust for appellees. Appellees further sought a monetary judgment in the amount of $176,000.00 together with interest thereon. When neither appellant nor his wife filed a timely responsive pleading to the complaint, appellees, on February 18, 1981, served them with a notice of intention to take default judgment. Thereafter, on March 3, 1981, the distinguished President Judge James R. Marsh, upon application of counsel for appellant and his wife, entered a Rule upon appellant and his wife to show cause why counsel should not be permitted to withdraw his appearance for them and specifically directed “All proceedings to stay meanwhile”. The Rule and Order of supersedeas was not, however, spread upon the docket by the prothonotary until 12:27 p.m. the following day, namely, March 3, 1981. In the interim, at 9:13 a.m. on March 3, 1981, appellees caused the prothonotary to enter a default judgment against appellant and his wife for failure to timely file a responsive pleading to their complaint. Appellant and his wife filed a petition to strike the default judgment but the hearing judge, after the presentation of briefs and oral argument thereon, dismissed the petition to strike the judgment. It is from that order denying his motion to strike that appellant has undertaken this appeal.

Appellant asserts that the court was in error when it denied his petition to strike the default judgment. The well established rule for such petitions is that enunciated in Fleck v. McHugh, 241 Pa.Super. 307, 361 A.2d 410 (1976):

It is well settled that a motion to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. If the record is self-sustaining, the judgment cannot be stricken.

Id., 241 Pa.Superior Ct. at 311, 361 A.2d at 412. Accord: Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972). The record we study reveals that a default judgment was entered within hours after a stay order was signed by the court but before that order of supersedeas was docketed. We must determine, therefore, whether the order took effect and thereby stayed the proceedings at the moment when it was signed by the hearing court.

Our study of the pronouncements of our Pennsylvania appellate courts failed, as did the careful effort of the learned Judge Marsh, to reveal any expression that might guide our reflection upon this issue. And while Judge Marsh, in humble fashion, concluded otherwise, we are of the view that the efficacy and validity of the order attached at the moment of its execution and that the entry upon the docket by the prothonotary was but a mere clerical task. See Associated Press v. Cook, 513 F.2d 1300 (10th Cir., 1975), citing Zadig v. Aetna Insurance Company, 42 F.2d 142 (2nd Cir., 1930) and 60 C.J.S. Motions and Orders § 59(1) (1969).

As a result, the instant stay order became effective and valid on March 2, 1981, the date upon which it was signed by Judge Marsh. Consequently, the default judgment entered thereafter is void since it was entered at a time when proceedings were stayed. See Moore v. Quigley, 402 Pa. 636, 168 A.2d 334 (1961). “[T]he remedy where a judgment is improperly entered is by motion to strike off the judgment.” Gitt v. Myers, 273 Pa.Super. 310, 318, 417 A.2d 664, 668 (1979). As such, we are constrained to reverse the order of the hearing court and direct that the default judgment entered against Lawrence Klutse be stricken.

Order reversed. Case remanded. Jurisdiction is relinquished.

      . We note that this Court has jurisdiction over the instant appeal pursuant to Pa.R.A.P., Rule 311, 42 Pa.C.S. Appellant also raises issues concerning his supplemental motion to open judgment but in view of our holding we need not consider nor even refer to those issues.

      . See also Levin v. Levin, 301 Pa.Super. 328, 447 A.2d 991 (1982); 9 Goodrich-Amram 2d, § 3121(c)(1); and 13 Standard Pennsylvania Practice 2d, § 76:15 which provides:
      A stay order is effective the moment it is signed, there is no requirement that a court order be served on anybody to give it life; absent any conditional language to the contrary, a stay order “lives" and is effective immediately.

      . We express no opinion on the efficacy of the default judgment entered against the wife of appellant.


author: CIRILLO, Judge:

text:
    474 A.2d 322
    COMMONWEALTH of Pennsylvania v. James MORROW a/k/a James Brown, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1984.
    Filed April 6, 1984.

      Robert A. Rovner, Feasterville, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   CIRILLO, Judge:

This appeal is from an order denying the appellant’s second petition for relief under the Post Conviction Hearing Act.

In February of 1970, the appellant was convicted by a jury of forceable rape and burglary with intent to commit a felony. After the denial of post-verdict motions, the appellant was sentenced to a term of imprisonment of not less than three nor more than ten years. The appellant appealed to the Superior Court, which resulted in the affirmation of the judgment of sentence. Commonwealth v. Morrow, 218 Pa.Super. 848, 279 A.2d 310 (1971).

On April 5, 1976, the appellant filed his first PCHA petition. The Honorable Ethan Allen Doty denied relief after a hearing and this Court affirmed the order. Commonwealth v. Morrow, 262 Pa.Super. 632, 396 A.2d 851 (1978). On August 4, 1980 the appellant filed his second PCHA petition. After argument, the Honorable Edward J. Blake again denied relief. This appeal followed.

Following his arrest, the appellant signed a waiver of counsel form and then took part in a line-up. In his first PCHA petition, the appellant alleged that a police officer had tricked him into signing the waiver by misinforming the appellant that he was signing a form required for obtaining a lawyer.

The appellant maintains in this appeal that his first PCHA counsel was ineffective for not pursuing the issue of waiver and eliciting more information during the hearing on this subject. Our appellate courts have uniformly held that counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Williams, 500 Pa. 226, 455 A.2d 632 (1983); Commonwealth v. Courts, 315 Pa.Super. 108, 461 A.2d 820 (1983); Commonwealth v. Hankins, 314 Pa.Super. 7, 460 A.2d 346 (1983). Prior to the line-up, police read the arrest warrant to the appellant, including the terms of the waiver. They told him that he had a right to the presence of counsel and would be provided a lawyer if he could not afford one. The appellant acknowledged that he understood his rights and signed the waiver. The suppression court found that the appellant voluntarily waived his right to counsel and this Court affirmed. Since we can find no merit to the contention that the appellant was tricked into signing the waiver, counsel cannot be ineffective for failing to pursue this issue.

The appellant also argues that his first PCHA counsel was ineffective in failing to inform him of his right to file a petition for allocatur and in failing to file such a petition. The appellant does not allege that he was unaware of his right to petition the Supreme Court for allowance of appeal. Indeed, such a position would be incredulous in light of his past experience with the judicial system. The appellant, likewise, does not allege that he wanted counsel to pursue this avenue of review, or that he told him to do so. In view of the fact that our appellate courts have never held counsel ineffective per se for failing to file a petition for allocatur, the appellant’s bald assertions fail to rebut the presumption that counsel provided competent assistance. See: Commonwealth v. Norris, 305 Pa.Super. 206, 451 A.2d 494 (1982). Consequently, under the facts of this case, counsel’s failure to pursue further appellate action on this meritless claim does not constitute ineffective representation.

The appellant’s conviction took place more than fourteen years ago. His challenges to that proceeding have been decided and redecided by both trial and appellate courts. They have resurfaced before this Court under the guise of ineffectiveness of PCHA counsel. We find such an abuse of post-conviction proceedings to be appalling. The Post Conviction Hearing Act was designed to give convicted defendants a final chance to vindicate their constitutional right to due process of law to the extent that questions raised had not been previously adjudicated or waived. Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976); Commonwealth v. Murray, 315 Pa.Super. 417, 462 A.2d 264 (1983). The PCHA was never meant to afford defendants endless opportunities at bombarding the judiciary with frivolous appeals, nor to make a mockery of the concept of judgment finality. Accordingly, relief is denied and the order of the hearing court is affirmed.

Order affirmed.

BECK, J., concurs in the result.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(2) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2 delaying repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S. § 9541 et seq.

      . A lapse of time in filing a PCHA petition is a factor to be considered in assessing its merits. Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983); Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1982). A period of over six years transpired between the time of conviction and the filing of the first PCHA petition. This lengthy delay in seeking post-conviction relief bolsters our conclusion that the appellant's claim lacks merit.


author: JOHNSON, Judge:

text:
    474 A.2d 324
    COMMONWEALTH of Pennsylvania v. Charles T. RITCHIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1984.
    Filed April 6, 1984.

      Carmela Presogna, Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   JOHNSON, Judge:

In January 1976, appellant Charles Ritchie was convicted by a jury of robbery and sentenced to a term of imprisonment of five to ten years. Following a hearing under the Post Conviction Hearing Act (PCHA), appellant brought an appeal nunc pro tunc from the judgment of sentence. This court vacated judgment and remanded for an evidentiary hearing on trial counsel’s diligence in securing the presence of alibi witnesses. Commonwealth v. Ritchie, 291 Pa.Super. 523, 436 A.2d 239 (1981).

Now before us is the appeal from the order of March 3, 1982 reinstating the judgment of sentence, following an evidentiary hearing.

The sole question presented is whether trial counsel provided ineffective assistance in utilizing certified mail to secure the presence of out-of-state witnesses, related to the defendant, without attempting to establish further contact with the potential witnesses by telephone or other means. On the record before us, we have no difficulty in finding counsel’s stewardship reasonable. Hence, we affirm.

Appellant was arrested on February 26, 1975 for the robbery of an Erie County motel. On May 8, 1975, a pro se Application to Continue was filed, requesting that his trial be continued from the May, 1975 Term of Criminal Court to the September Term on the basis that “witnesses who are presently in Mississippi” were “necessary for his presentation of a defense” and that the witnesses “[would] be able to be present for the September Term.” Although the record does not contain any order entered on the Application, it is clear that a continuance was granted, inasmuch as trial did not take place until January 1976.

The first entry of appearance of counsel was by the Public Defender’s Office on March 13, 1975. On September 15, 1975, the second of two assistant public defenders who represented appellant secured a second continuance based upon counsel’s having been just appointed and needing time to prepare an adequate defense. Then, on October 29,1975, the public defender(s) were replaced by private counsel whose stewardship is here under review.

From the P.C.H.A. hearing transcript, we note that trial counsel had first been engaged by appellant’s father prior to counsel interviewing appellant at the Erie County Jail. A Motion for Continuance, citing the need for additional time to adequately prepare the case for the defense, and to permit contact with “witnesses crucial to the defense” was submitted by trial counsel and refused on October 30, 1975.

When counsel interviewed appellant at the jail in preparation for trial, he was provided with the names and addresses of three witnesses whom appellant believed could provide an alibi defense. All of these witnesses were residents of D’Lo, Mississippi and related to the appellant through his mother. They were Effie Jackson, his grandmother; John “Spence” McGee, his step-grandfather; and Ruth Griffin, his aunt. All three witnesses lived in the same household in D’Lo.

On November 3, 1975, trial counsel mailed letters, with subpoenas enclosed, to each of the three Mississippi witnesses, with return receipt requested. The letter set forth:

“Of course I cannot force you to obey the subpoena since you are a resident of Mississippi, but it is essential for you to appear in Court on November 17, 1975, to help [appellant]. Thank you for your consideration of this matter.
Yours truly,
[trial counsel].”

The return receipts introduced at the evidentiary hearing on remand confirm that the notices of the November 17th trial were received by the three witnesses on either November 7th or 8th.

In January, trial counsel again wrote to the Mississippi witnesses by certified mail to request their attendance at the trial scheduled for January 19, 1976. These notices were received by each of the three witnesses on January 9, 1976. Trial counsel thereafter received a letter postmarked January 12, 1976 at Smithdale, Mississippi, from Ruth Griffin indicating her inability to come to Erie and further stating that Effie Jackson, the writer’s mother, was under the care of a doctor and unable to make such a trip.

As this court noted on review of the direct appeal from judgment of sentence, trial counsel sought a further continuance at the beginning of trial on January 19, 1976, bringing to the trial court’s attention that the Mississippi witnesses were not available and that their testimony was a necessary part of appellant’s alibi defense. That motion was refused. The trial court did not abuse its discretion in refusing to grant the continuance. Commonwealth v. Ritchie, 291 Pa.Super. at 526, 436 A.2d at 241.

On this appeal, appellant argues that trial counsel’s efforts in seeking the attendance of appellant’s Mississippi relatives were insufficient to constitute effective assistance of counsel. He urges that at least one of the witnesses could neither read nor write and that counsel was somehow derelict in his duty by not having attempted to establish contact with the Mississippi witnesses by telephone. We reject this argument.

To examine a claim of ineffectiveness a two-step analysis is used:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.
Commonwealth v. Jennings, 285 Pa.Super. 295, 298-9, 427 A.2d 231, 232 (1981).

Commonwealth v. Golson, 310 Pa.Super. 532, 535, 456 A.2d 1063, 1065 (1983).

We have no difficulty in determining that the underlying issue, involving the right to present alibi testimony through third-party witnesses, is of arguable merit. We therefore can proceed directly to determining whether counsel’s course of action had some reasonable basis aimed at promoting his client’s interests.

Unlike the standard ineffectiveness claim, where counsel is charged with having done, or having failed to do, a specific and complete procedure or act, here counsel is charged with (a) having employed a procedure not fashioned to the peculiar characteristics of the witnesses sought to be summoned, and (b) having failed to exhaust all possible means of communicating directly with those witnesses.

As to the argument that counsel may have been ineffective to the extent that the recipients of the trial notice were illiterate, this is totally without merit. All three of the witnesses resided in a common household, and one of the witnesses sent a return letter to trial counsel one week before trial stating her inability to travel to Erie and setting forth the incapacity of another witness. Appellant himself testified at the hearing on remand that Ruth Griffin, one of the witnesses contacted, had attended college and could read and write. To suggest that she would not be in communication with her own mother and stepfather, with whom she resided, about the impending trial of their nephew and grandson respectively, is not worthy of further consideration.

Appellant alternatively urges on this court that the failure to couple telephone contacts with the written requests to attend trial should cause us to find trial counsel ineffective. This we decline to do.

In evaluating ineffectiveness of counsel claims, we do not employ hindsight to determine whether other alternatives seem more reasonable than the course of action chosen by counsel. Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the course of action taken by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Ergo, only where counsel’s course of action was in no way reasonably designed to further his client’s interests, may we find that counsel was ineffective.

Commonwealth v. Boyd, 315 Pa.Super. 308, 312, 461 A.2d 1294, 1297 (1983); see also Commonwealth v. McCaskill, 321 Pa.Super. 266, 468 A.2d 472 (1983).

At trial, appellant’s father testified to having had contact with the Mississippi household prior to appellant’s arrest on this robbery charge. At the evidentiary hearing, appellant’s mother testified to the “long telephone bill” showing the number of calls she had been getting from Mississippi prior to her son’s trial. Where, as here, the lines of communication between the defendant, his family and the potential witnesses is so clear, involving the mother, father, grandmother, stepgrandfather and aunt of the defendant, we refuse to find that counsel’s failure to augment written notice of trial with telephone contacts to out-of-state close relatives constitutes ineffectiveness.

We do not suggest that trial counsel may transfer his responsibilities of diligence and thoroughness to his client’s family, and ignore reasonable efforts to secure witnesses in his client’s behalf. Here, appellant had undergone a separate trial on another robbery within two months of the trial here involved. The defense involved the same strategy, and the Mississippi witnesses were not available for that trial. The evidentiary hearing disclosed no evidence that the missing witnesses were in any way misled as to what counsel was seeking on their relative’s behalf. It is clear from the record that several continuances were sought and obtained in hopes of securing the attendance of the out-of-state witnesses.

Appellant does not suggest, nor can we perceive, any reason why telephone contact by trial counsel to appellant’s grandmother, aunt or step-grandfather would have increased the likelihood of securing their attendance. While there is no direct testimony on the record from any of the missing witnesses, we will assume for purposes of this appeal that, had they journeyed to Erie for trial, they would have been prepared to testify that appellant was in Mississippi at all times material to this criminal charge.

But that likelihood in no way changes the degree of diligence expected of counsel in advancing his client’s interest. Our review of both the trial and evidentiary hearing record persuades us that counsel’s stewardship on the issue of securing witnesses on behalf of defendant more than meets the standard of reasonableness.

Trial counsel received the names and addresses of the alibi witnesses from the appellant. On two separate occasions, notice was, in fact, received by each of the witnesses as to the need for their attendance at appellant’s trial. Both the father and mother of appellant were fully aware of his plight and had contact with the other members of appellant’s family residing in Mississippi.

We recognize that the responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client and/or his family. We find nothing on the record before us, however, to support the proposition that counsel’s efforts, in seeking to secure members of this appellant’s family as witnesses at trial, were in any manner deficient. Counsel’s action had a clear reasonable basis designed to effectuate his client’s interests. We decline to employ hindsight to determine whether supplementary telephone contact may have been more reasonable as an addition to the steps promptly taken by trial counsel.

The trial court was correct in reinstating the judgment of sentence. Affirmed.

      . Act of January 26, 1966, P.L. 1580 (1965), § 1 et seq. 19 P.S. § 1180-1 et seq., repealed and reenacted by Act of May 13, 1982, P.L. 417, No. 122, § 3, immed. eff. 42 Pa.C.S. § 9541 et seq.

      . An order setting a hearing date on the Application was entered May 8, 1975.

      . In presenting his Petition to Withdraw as Counsel, the successor public defender averred that appellant had fired the first public defender during the September Term of Criminal Court.

      . Although it is not clear from this record, it appears that appellant Charles Ritchie was, in fact, tried on a separate robbery charge sometime in November or December 1975.

      . We do not reach appellant’s failure to comply with the mandatory requirements of Pa.R.Crim.P. 305 C(l)(a) involving Notice of Alibi Defense, since this issue was never raised at trial. The closest that appellant may have come to providing such notice was in his pro se Application to Continue, filed May 8, 1975, where he averred the necessity of the Mississippi witnesses "without divulging any defenses in said matter.”


author: POPOVICH, Judge: SPAETH, President Judge,

text:
    474 A.2d 329
    Joseph W. NORWICH, Appellant, v. Benjamin BEAVER and Michael Reese, their Heirs, Successors and Assigns, and Columbia Sportsmen Club, Inc. COLUMBIA SPORTSMEN CLUB, INC. v. TENCH COXE ESTATE, Charles S. Coxe, in Trust Executor of the Last Will and Testament of Tench Coxe, the Heirs, Successors and Assigns of Enoch Kester: Daniel Fetterman, his Heirs, Successors and Assigns: Mary E. Kester Estate, Lawson Lee, Executor of the Estate of Mary E. Kester, The Heirs, Successors and Assigns of Mary E. Kester. Appeal of Joseph W. NORWICH.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1983.
    Filed April 6, 1984.
    Petition for Allowance of Appeal Denied Aug. 9, 1984.

      William S. Kreisher, Bloomsburg, for appellant.
    Robert Spielman, Bloomsburg, for appellees.
    Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the January 5, 1982, Final Decree of the Court of Common Pleas of Columbia County dismissing appellant’s, Joseph W. Norwich’s, exceptions to the trial court’s opinion and decree nisi.

In 1978, appellant filed an action to quiet title to two parcels of unimproved mountainous timberland. Appellee, Columbia Sportsmen Club, petitioned for and was granted leave to intervene; appellee also filed a separate action to quiet title. The two cases were consolidated, and, after a non jury trial, Judge Myers ruled in favor of appellee as to both parcels of land. Appellant is appealing this ruling only as to the ownership of one of these tracts, hereinafter “parcel A”.

Appellant claims title to parcel A through a 1950 conveyance from James Cherrington, et al for a total of approximately 208 acres. In the early 1950’s, without benefit of a survey, appellant erected a telephone wire fence enclosing approximately 257 acres. Parcel A, consisting of an additional 36 acres, lies outside of this fence. Appellant used this fence as a boundary line (N.T. 29) and posted “no hunting” signs on the land within the fence (N.T. 27). Appellee became the owner in 1958 of several adjacent tracts of land by virtue of a deed from Florence Rhoads and posted “no hunting” signs on its property, including parcel A. The parties have used their respective lands primarily for hunting purposes. Since 1960, appellee has paid the taxes on parcel A. In 1971, Pennsylvania Power and Light Company (PP & L) paid appellee $7,000 for a right of way through parcel A. Appellant was paid $15,000 by PP & L for a right of way through the property enclosed by the fence. A dispute as to the true property line arose in 1978 resulting in the cases now before us.

At trial each side presented testimony from professional surveyors, each reaching a substantially different conclusion. The trial court found “the testimony of Columbia’s surveyor to be more pursuasive [sic]” and concluded “that Columbia is the record owner of, and therefore holder of title in fee to [parcel A].” Trial Court Opinion of August 3, 1981, p. 5.

The trial court’s findings where supported by credible evidence will not be reversed on appeal. See Bigham v. Wenschhof, 295 Pa.Super. 146, 148, 441 A.2d 391, 392 (1982). This court has also repeatedly said “[t]he question of what is a boundary line is a matter of law, but where a boundary line, or corner, is actually located is a question for the trier of fact.” Murrer v. American Oil Co., 241 Pa.Super. 120, 124, 125, 359 A.2d 817, 819 (1976); Guerra v. Galatic, 185 Pa.Super. 385, 391, 137 A.2d 866, 869 (1958).

Appellant argues that the trial court erred in finding appellee to have record title because there was no evidence in support thereof. We disagree.

Appellant’s surveyor testified that parcel A was entirely within the Michael Reese warranty tract (N.T. 48) and hence included in appellant’s deed description (N.T. 46). Appellee’s surveyor, on the other hand, testified that parcel A lay partly within the Michael Reese warranty tract and partly within the Henry Shaffer warranty tract (N.T. 102) and was in appellee’s chain of title. Appellant contends that on cross examination appellee’s surveyor conceded that none of the deeds in appellee’s chain of title included the disputed parcel A. A review of the entire cross examination and the testimony when read in context does not support this contention.

Appellant argues that the testimony of appellee’s survey- or cannot be credited because this surveyor based his conclusions on a discussion with appellant in 1971 concerning the boundary line and ownership of parcel A. However, although it is clear that such a discussion took place when appellee’s witness surveyed the land in 1971, this surveyor did not solely rely on the discussion and the telephone wire fence to reach his conclusions but testified as to his extensive on-site survey and his analysis of existing records. He explicitly stated on direct examination “[h]ad I thought any reason at all it belonged to Norwich, I wouldn’t have included it in the survey for the [Columbia Sportsmen] Club. I would have gave it to Norwich.” [N.T. 102]

We also note that while appellant’s surveyor prepared his report after the instant dispute arose, appellee’s surveyor completed his findings in 1971-1973 prior to any dispute.

Appellant argues that the trial court erred in applying the “consentable line” doctrine. This argument is based upon the fact that there was no dispute or compromise as to the boundary when appellant erected the telephone wire fence; however, a boundary line may be proven by a fence even in the absence of a dispute and its settlement by a compromise. Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976). Our Supreme Court has said:

It cannot be disputed that an occupation up to a fence on each side by a party or two parties for more than twenty-one years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not. Our courts have always favored the settlement of disputes of this character by recognizing consent-able lines established by the parties themselves, and this without regard to whether the line agreed upon conforms to the exact courses, distances and bounds of the original surveys, (citations omitted) Dimura v. Williams, 446 Pa. 316, 319, 286 A.2d 370, 371 (1972).

Nor are we persuaded by appellant’s contentions that the fence was not substantial. While a fence must be substantial if the enclosure of land by it is the basis for a claim of adverse possession, the law is different if a long standing fence is relied upon to establish a boundary between two adjacent parcels of land. Dimura v. Williams, supra. Appellant in this case erected the fence in the early 1950’s, and this fence was still in existence in 1973 and was recognized by appellant as a boundary long after this time.

We recognize those cases which state the use of land for recreational purposes such as hunting does not show actual possession. Bigham v. Wenschhof, supra; Seven Springs Farm, Inc. v. King, 235 Pa.Super. 450, 344 A.2d 641 (1975). The reasoning behind these cases is that such uses do not give an aggrieved owner proper notice that such possession was in progress, and no owner of uninhabited land would be safe from the encroachment of strangers claiming his property.

The trial judge in this case based his finding that appellant consented to the boundary on much more than appellee’s use of the land for hunting. The actions of both appellant and appellee formed a basis for the judge’s finding. These include: acceptance of the financial settlements made by PP & L in 1971; the payment of real estate taxes since 1960 by appellee; appellee’s erection of “no hunting” signs on parcel A; earlier statements by appellant acknowledging he did not consider the land to be his; and appellant’s installation of a gate consistent with the lines of the fence.

We cannot say that either the trial judge erred as to a matter of law or that his conclusions of fact were not supported by the evidence.

Decree affirmed.

SPAETH, President Judge, files a concurring statement.

SPAETH, President Judge,

concurring:

I should affirm on the basis of the trial court’s acceptance of appellee’s survey as establishing record title.


author: PER CURIAM:

text:
    474 A.2d 332
    COMMONWEALTH of Pennsylvania, Appellant, v. Janet HAUCK.
    Superior Court of Pennsylvania.
    Submitted Feb. 9, 1984.
    Filed April 6, 1984.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    John L. Doherty, Pittsburgh, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   PER CURIAM:

The Commonwealth appeals from the order of March 3, 1982 granting appellee’s motion to dismiss indictment.

The record, pursuant to a stipulation of facts, indicates that appellee, while employed as a barmaid in an establishment which provided an electronic draw poker machine, “paid off” a liquor control agent and local police officer who had won free games on said machine. Appellee was also observed “paying off” other players of the machine. The machine was of the same type as discussed in Commonwealth v. One Electro-Sport Draw Poker Machine, 297 Pa.Super. 54, 443 A.2d 295 (1981), rev’d Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983).

Appellee was subsequently charged with violating 18 Pa.C.S. § 5513(a)(1) and (2) regarding gambling devices. The trial court granted the motion to dismiss based on the decision in Commonwealth v. One Electro-Sport Draw Poker Machine, supra, which held such a gambling machine not to be a gambling device per se. That appeal was from an order granting a motion for the return of property, pursuant to the confiscation of the machine, as permitted by 18 Pa.C.S. § 5513(b).

The instant appeal is from criminal charges arising from subsections (a)(1) and (2) of that section, which are not based on whether the machine was a gambling device per se, but on appellee’s conduct.

Under these circumstances, it was error to grant the motion to dismiss the charges, as section 5513(a)(1) and (2) contain no requirement that the device to be used for gambling purposes be a gambling device per se. In any event, our Supreme Court has recently held that the machine in Commonwealth v. One Electro-Sport Draw Poker Machine, supra, was a gambling device per se. See Commonwealth v. Two Electronic Poker Game Machines, supra.

Order reversed.

      . § 5513. Gambling devices, gambling, etc.
      (a) Offense defined. — A person is guilty of a misdemeanor of the first degree if he:
      (1) intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards:
      (2) allows persons to collect and assemble for the purpose of unlawful gambling at any place under his control;

      . Section 5513(b) sets forth:
      (b) Confiscation of gambling devices. — Any gambling device possessed or used in violation of the provisions of subsection (a) of this section shall be seized and forfeited to the Commonwealth. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of intoxicating liquor shall apply to seizures and forfeitures under the provisions of this section.