text:
    June 4, 1984.
    478 A.2d 67
    In re J.A.W., II.
    Submitted March 19, 1984.
    Blair P. Warner, for appellant;
    Edward E. Seguin, for appellee.
    Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
   Final decree vacated and case remanded for further proceedings. Jurisdiction is relinquished.


source: Caselaw Access Project

license: Public Domain

text:
    June 5, 1984.
    478 A.2d 67
    Lassoff, Appellant, v. Allstate Ins. Co.
    Argued May 8, 1984.
    Allen L. Feingold, for appellant;
    James M. Marsh, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Order affirmed.


text:
    June 7, 1984.
    478 A.2d 67
    Commonwealth v. Fleeher, Appellant.
    Petition for Allowance of Appeal Denied Nov. 12, 1984.
    Argued May 15, 1984.
    John A. Bacharach, for appellant;
    John C. Pettit, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    June 8, 1984.
    478 A.2d 67
    Accounting Personnel v. Nardei, Appellants.
    Submitted May 18, 1984.
    Sanford S. Finder, for appellants;
    David J. Slesnick, for appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Order affirmed.

McEWEN, J., concurred in the result.


text:
    478 A.2d 68
    Allen, Appellant, v. Port Authority, etc., et al.
    Submitted April 12, 1984.
    David B. Washington, for appellant;
    JoAnn Haller, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Judgment affirmed.


text:
    478 A.2d 68
    Bank of Central Pa., Appellant, v. Bubb, et al.
    Petition for Allowance of Appeal Denied Oct. 10, 1984.

      Argued February 15, 1984.
    Ronald C. Travis, for appellant;
    Charles A. Szybist, for appellees.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Order affirmed.


text:
    478 A.2d 68
    Barrett v. City of Pgh., Appellant.
    Argued February 29, 1984.
    James Thomas, Jr., for appellant;
    Clyde T. Mae Vay, for appellee.
    Before BROSKY, TAMILIA and MONTGOMERY, JJ.
   Order affirmed.


text:
    478 A.2d 68
    Commonwealth v. Asbury, Appellant.
    Submitted March 26, 1984.
    Alphonse P. Lepore, Jr., Public Defender, for appellant;
    Gerald R. Solomon, District Attorney, for Commonwealth, appellee.

      Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 69
    Commonwealth v. Bates, Appellant.
    Submitted April 16, 1984.
    Glenn D. Welsh, Assistant Public Defender, for appellant;
    Charles M. Guthrie, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Judgment of sentence affirmed.

CERCONE, J., concurred in the result.


text:
    478 A.2d 897
    Commonwealth v. Bethay, Appellant.
    Reargument Denied Aug. 7, 1984.
    Submitted January 3, 1984.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, P.J., and DEL SOLE and HESTER, JJ.
   Judgment of sentence vacated.

Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.


text:
    478 A.2d 69
    Commonwealth v. Booker, Appellant.
    Submitted May 18, 1984.
    John H. Corbett, Jr., Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Order affirmed.


text:
    478 A.2d 69
    Commonwealth v. Brookins, Appellant.
    Petition for Allowance of Appeal Denied Sept. 18, 1984.
    Submitted March 23, 1984.
    Vincent R. Baginski, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.

      Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 70
    Commonwealth v. Conroy, Appellant.
    Petition for Allowance of Appeal Denied Jan. 8, 1985.
    Submitted February 3, 1984.
    William P. James, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   Order denying P.C.H.A. relief is affirmed.


text:
    478 A.2d 70
    Commonwealth v. Davis, Appellant.
    Petition for Allowance of Appeal Denied Sept. 24, 1984.
    Argued March 29, 1984.
    Dwight L. Danser, for appellant;
    Mark S. Refowich, Assistant District Attorney, for Commonwealth, appellee.

      Before BROSKY, WIEAND and McEWEN, JJ.
   The judgment of sentence of the learned Northampton County Common Pleas Court President Judge Alfred T. Williams, Jr. is affirmed.


text:
    478 A.2d 70
    Commonwealth v. Delker, Appellant.
    Submitted April 16, 1984.
    Lawrence D. Mac Donald, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Order affirmed.


text:
    478 A.2d 70
    Commonwealth v. Devine, Appellant.
    Submitted April 16, 1984.
    Elaine Demasse, Assistant Public Defender, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 898
    Commonwealth v. Diaab, etc., Appellant.
    Reargument Denied Aug. 7, 1984.
    Petition for Allowance of Appeal Denied Nov. 5, 1984.
    Argued April 12, 1984.
    John H. Moore, for appellant;
    Timothy J. Lucas, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 71
    Commonwealth v. Dilley, Appellant.
    Submitted April 16, 1984.
    David A. Whitney, for appellant;
    James A. Meyer, District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER/ JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 71
    Commonwealth v. England, Appellant.
    Submitted March 5, 1984.
    Willard England, appellant, in propria persona;
    Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   Order affirmed.


text:
    478 A.2d 71
    Commonwealth v. Frankenberry, Appellant.
    Petition for Allowance of Appeal Denied Sept. 18, 1984.
    Submitted March 23, 1984.
    Anthony Dedola, for appellant;
    Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 72
    Commonwealth v. Frazier, Appellant.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.
    Submitted January 19, 1984.
    John B. Elbert, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 72
    Commonwealth v. Giorgianni, Appellant.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.
    Argued March 1, 1984.
    Robert C. Eddins, for appellant, Clark Edward Marcus, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 72
    Commonwealth v. Goodroe, Appellant.
    Petition for Allowance of Appeal Granted Nov. 16, 1984.
    Submitted March 5, 1984.
    James A. Lammendola, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 72
    Commonwealth v. Gray, Appellant.
    Petition for Allowance of Appeal Denied Sept. 25, 1984.
    Argued March 28, 1984.
    Susan Antonelli Flynn, Assistant Public Defender, for appellant;
    Stanley R. Ott, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   The order reimposing the judgment of sentence of the learned Montgomery County Common Pleas Court Judge Mason Avrigian is affirmed.


text:
    478 A.2d 73
    Commonwealth v. Gray, Appellant.
    Petition for Allowance of Appeal Denied Oct. 9, 1984.
    Submitted May 18, 1984.
    John A. Halley, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 73
    Commonwealth v. Green, Appellant.
    Submitted April 12, 1984.
    Carmela R.M. Presogna, Assistant Public Defender, for appellant;
    Thomas P. Agresti, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 73
    Commonwealth v. Harris, Appellant.
    Submitted May 18, 1984.
    John A. Halley, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Order affirmed.


text:
    478 A.2d 74
    Commonwealth, Appellant v. Henderson, Appellant
    (at No. 224)
    (at No. 77).
    Argued September 21, 1983.
    Charles M.J. Nester, Assistant Public Defender, for appellant (at No. 77) and for appellee (at No. 224);
    F. Ned Hand, Assistant District Attorney, for Commonwealth, appellant (at No. 224) and for Commonwealth, appellee (at No. 77).
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Order of No. 77 Philadelphia 1982, affirmed.

Order of No. 224 Philadelphia 1982, affirmed.


text:
    478 A.2d 74
    Commonwealth v. Jefferson, Appellant.
    Submitted April 2, 1984.
    Willis W. Berry, Jr., for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 74
    Commonwealth v. Jones, Appellant.
    Submitted November 28, 1983.
    James M. Pierce, for appellant;
    Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 74
    Commonwealth v. Judge, Appellant.

      Submitted April 16, 1984.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 75
    Commonwealth v. Krew, Appellant.
    Submitted April 16, 1984.
    Ronald A. Kovler, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 75
    Commonwealth v. Maglisco, Appellant.
    Submitted May 18, 1984.
    Wayne S. Lipecky, for appellant;
    Edward. J. Tocci, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Order affirmed.


text:
    478 A.2d 75
    Commonwealth v. Marshall, Appellant.
    Petition for Allowance of Appeal Denied Sept. 20, 1984.
    Submitted March 26, 1984.
    John A. Halley, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    478 A.2d 75
    Commonwealth v. McNulty, Appellant.
    Submitted November 28, 1983.
    Richard C. Tinucci, for appellant;
    David E. Fritchey, Assistant District Attorney, for Commonwealth, appellee.

      Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Appeal quashed.


text:
    478 A.2d 76
    Commonwealth v. Mulligan, Appellant.
    Argued February 29, 1984.
    Russell J. Heiple, for appellant;
    Ralph F. Kraft, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 76
    Commonwealth v. Nolan, Appellant.
    Submitted April 16, 1984.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 76
    Commonwealth v. Pizza, Appellant.
    Submitted April 2, 1984.
    Barnaby Wittels, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   Judgment affirmed.

WIEAND, J., concurred in the result.


text:
    478 A.2d 77
    Commonwealth v. Ponte, Appellant.
    Submitted April 2, 1984.
    Barry H. Oxenburg, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 77
    Commonwealth v. Porter, Appellant.
    Submitted May 18, 1984.
    Anthony Dedola, for appellant;
    Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Order affirmed.


text:
    478 A.2d 77
    Commonwealth v. Porterfield, Appellant.
    Petition for Allowance of Appeal Denied Nov. 29, 1984.
    Submitted March 26, 1984.
    Peter E. Horney, for appellant;
    William M. Panella, District Attorney, for Commonwealth, appellee.
    Before SPAETH, P.J., and BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    478 A.2d 77
    Commonwealth v. Powell, Appellant.
    Submitted November 28, 1983.
    Richard A. Masson, for appellant;
    James A. Meyer, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 78
    Commonwealth v. Prince, Appellant.
    Submitted February 3, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Richard A. Sheetz, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   Judgment affirmed.


text:
    478 A.2d 78
    Commonwealth v. Rhome, Appellant.

      Submitted March 26, 1984.
    John M. Zeglen, for appellant;
    Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before SPAETH, P.J., and BROSKY and MONTGOMERY, JJ.
   Order affirmed.

SPAETH, President Judge, concurred in the result.


text:
    478 A.2d 78
    Commonwealth v. Ross, Appellant.
    Petition for Allowance of Appeal Denied Jan. 14, 1985.
    Submitted November 4, 1983.
    Blaise H. Coco, Jr., for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 79
    Commonwealth v. Shipley, Appellant.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Submitted May 18, 1984.
    Kevin L. Sanders, for appellant;
    Ralph F. Kraft, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 79
    Commonwealth v. Silva, Appellant.
    Petition for Allowance of Appeal Denied Aug. 22, 1984.
    Submitted May 4, 1984.
    David F. Wedge, for appellant;
    Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 79
    Commonwealth v. Simpson, Appellant.

      Submitted April 16, 1984.
    D. Webster Keogh, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Order affirmed.


text:
    478 A.2d 79
    Commonwealth v. Smith, Appellant.
    Submitted March 26, 1984.
    Joan M. Devlin-Gaughan, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, P.J., and BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 80
    Commonwealth v. Snyder, Appellant.
    Submitted May 4, 1984.
    Robert L. Moore, for appellant;
    Charles M. Guthrie, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   Order affirmed.


text:
    478 A.2d 80
    Commonwealth v. Spernock, Appellant.
    Submitted May 18, 1984.
    John H. Corbett, Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 80
    Commonwealth v. Steele, Appellant.
    Submitted April 10, 1984.
    Richard E. Goldinger, Assistant Public Defender, for appellant;
    Robert F. Hawk, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 81
    Commonwealth v. Stewart, Appellant.
    Submitted May 18, 1984.
    David H. Acker, Public Defender, for appellant;
    Joseph A. Kosciuszko, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 81
    Commonwealth v. Taynton, Appellant.
    Submitted January 3, 1984.
    Robert E. Dalton, Jr., Public Defender, for appellant;
    James E. Carlson, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and DEL SOLE and HESTER, JJ.
   Judgment of sentence vacated and case remanded for resentencing.

Jurisdiction relinquished.


text:
    478 A.2d 81
    Commonwealth v. Tomasek, Appellant.
    Petition for Allowance of Appeal Denied Oct. 2, 1984.
    Argued February 28, 1984.
    Peter U. Hook, for appellant;
    Ralph C. Warman, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 81
    Commonwealth v. Trotman, Appellant.
    Petition for Allowance of Appeal Denied Oct. 8, 1984.
    Submitted November 28, 1983.
    Daniel Trotman, appellant, in propria persona;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 82
    Commonwealth v. Wilkins, Appellant.
    Submitted March 5, 1984.
    Daniel M. Preminger, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 898
    Commonwealth v. Wilson, Appellant.
    Reargument Denied Aug. 7, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.
    Argued April 10, 1984.
    James N. Fitzsimmons, Jr., for appellant, Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., filed a dissenting memorandum.


text:
    478 A.2d 898
    Commonwealth v. Wilson, Appellant.
    Reargument Denied Aug. 7, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.
    Argued April 10, 1984.
    James N. Fitzsimmons, Jr., for appellant;
    Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 82
    Commonwealth v. Wise, Jr., Appellant.
    Submitted May 18, 1984.
    Phillip L. Clark, Jr., for appellant;
    William M. Panella, District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Order affirmed.


text:
    478 A.2d 82
    Commonwealth v. Witherspoon, Appellant.
    Submitted November 28, 1983.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 82
    Commonwealth v. Wofford, Appellant.
    Petition for Allowance of Appeal Denied Oct. 16, 1984.
    Submitted May 18, 1984.
    Stephen E. Hall, for appellant;
    Mark W. Richmond, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Order affirmed.


text:
    478 A.2d 83
    Darby v. West Moon Township, Appellants.
    Argued February 8, 1984.
    Paul D. Kruper, for appellant;
    Leonard E. Price, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   Order affirmed.


text:
    478 A.2d 899
    Dinicola v. Depaolo, etc., Appellants.
    Reargument Denied Aug. 20, 1984.
    Petition for Allowance of Appeal Denied Jan. 17, 1985.
    Submitted May 18, 1984.
    Louis P. Dinicola, appellant, in propria persona;
    Paul J. Gelman, for Vendet ti, appellee, Lawrence L. Kinter, for Depaolo, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Order affirmed.


text:
    478 A.2d 83
    Gaffney, Appellant, v. King et al.

      Argued February 2, 1984.
    Ronald J. Harper, for appellant;
    Paul Cohen for appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   Reversed and remanded.

Jurisdiction is relinquished.


text:
    478 A.2d 83
    Hatton, Appellant, v. Delta Equip. Co., et al.
    Argued March 7, 1984.
    David L. Pennington, for appellant;
    Thomas R. Harrington, for appellee.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   Judgment affirmed.


text:
    478 A.2d 83
    Hogan v. Melaragni, Appellant.
    Argued January 11, 1984.
    Joseph L. Higgins, for appellant;
    James J. Marlowe, II, for appellee.

      Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment affirmed.


text:
    478 A.2d 84
    Home for Crippled Children, Appellant, v. Erie Ins.
    Petition for Allowance of Appeal Denied Nov. 7, 1984.
    Argued January 25, 1984.
    Frederick J. Francis, for appellant;
    S. Asher Winikoff, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Judgment affirmed.


text:
    478 A.2d 84
    Home for Crippled Children, Appellant v. Erie Insurance, Appellant
    (at No. 1457)
    (at No. 1390).
    Petition for Allowance of Appeal Denied Oct. 30, 1984.
    Argued January 25, 1984.
    H.N. Rosenberg and S. Asher Winikoff, for appellant (at 1390) and for appellee (at 1457);
    Frederick J. Francis, for appellant (at 1457) and appellee (at 1390).

      Before WIEAND, TAMILIA and POPOVICH, JJ.
   Judgment affirmed.


text:
    478 A.2d 84
    Jo Vi Jo, Inc., et al. v. Union Real Estate, et al., Appellants.
    Argued September 29, 1983.
    S. Michael Strieb, for appellant;
    Frank J. Lucchino, for Jo Vi Jo, appellee; Debra M. Coulson, for Great Atlantic, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   Order affirmed in part and reversed in part and remanded.

Jurisdiction is not retained.

McEWEN, J. filed a dissenting memorandum.


text:
    478 A.2d 85
    Kann, Appellant, v. Kann.
    Argued April 10, 1984.
    Phyllis Raphael, for appellant;
    Robert C. Capristo, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    478 A.2d 85
    Mahr, et al, Appellants, v. Exxon Corp.
    Argued March 1, 1983.
    George T. McKinley, for appellants;
    Michael Quinn Davis, for appellee.
    Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.
   Affirm the order of the lower court.


text:
    478 A.2d 85
    Migyanko, etc., Appellant, v. U.S. Auto Ins.
    Petition for Allowance of Appeal Denied Sept. 24, 1984.
    Argued February 28, 1984.
    Deborah D. Olszewski, for appellant;
    Louis Long, for appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   All allegations of fact de hors the record are suppressed; and, the order is affirmed.


text:
    478 A.2d 85
    Placos v. Dumestre, Appellant.

      Argued November 1, 1983.
    Linus E. Fenicle, for appellant;
    Harold Tull, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   Reversed and remanded.

Jurisdiction is relinquished.


text:
    478 A.2d 899
    Rossero v. Rossero, Appellant.
    Reargument Denied Aug. 7, 1984.
    Argued March 1, 1984.
    Sanford S. Finder, for appellant;
    Kenneth L. Baker, for appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   Order affirmed.


text:
    478 A.2d 86
    Sawin v. Sawin, Appellant.
    Argued March 27,1984.
    Arthur L. Jenkins, Jr., for appellant;
    Robert I. Whitelaw, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   The order of the learned Chester County Common Pleas Court Judge Lawrence E. Wood is affirmed.


text:
    478 A.2d 86
    Shames, Inc. v. M & B Tavern, Inc., et al., Appellants.
    Argued March 15, 1984.
    E. Chandler Hosmer, III, for appellant;
    Andrea B. Paul, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   Order affirmed.


text:
    478 A.2d 86
    Slayman, et al., Appellants, v. Glad Tidings Tabernacle.
    Argued April 10, 1984.
    Mary Bower, for appellants;
    Robert L. Webster, for appellees.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    478 A.2d 86
    State Farm Ins. Co. v. Bouikidis, Appellants.
    Argued November 22, 1983.
    Allen L. Feingold, for appellant;
    John J. Barr, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order of the lower court affirmed.


text:
    478 A.2d 87
    State Public School v. Gaf Corp., Appellant.
    Petition for Allowance of Appeal Denied Oct. 16, 1984.
    Argued April 12, 1984.
    William J. Kelly, for appellant;
    James D. McDonald, Jr., for St. Public School, appellees;
    John W. Beatty, for Koski, appellee; Andrew J. Conner, for McCreary, appellee;
    Mario P. Restifo, for Hallgren, appellee;
    Thomas P. Agresti, for Kewanee, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    478 A.2d 87
    Swisher et al. v. Martin et al., Appellants.
    Argued February 14, 1984.
    Patrick C. O’Donnell, for appellants;
    Robert W. Lentz for appellees.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Order affirmed.


text:
    478 A.2d 87
    Telephonic Accessories, Inc., Appellant, v. Smith.
    Argued March 13, 1984.
    Allen L. Feingold, for appellant;
    Jerry Zaslow, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   Order affirmed.


text:
    478 A.2d 87
    Welsh v. Welsh, Appellant.

      Argued November 2, 1983.
    Joseph J. Dixon, for appellant;
    Bonnie D. Menaker, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   Order of the lower court is affirmed.

WIEAND, J., filed a concurring memorandum.


text:
    June 12, 1984.
    478 A.2d 88
    Burdo, Sr. v. Diesel, Appellant.
    Submitted March 29, 1984.
    Maureen E. Hailey, for appellant;
    Barry M. Miller, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   Order affirmed.

McEWEN, J., concurred in the result.


text:
    478 A.2d 88
    Commonwealth v. Stears, Appellant.
    Submitted March 29, 1984.
    Charles R. Witaconis, Assistant Public Defender, for appellant;
    Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   Judgment of sentence affirmed.


text:
    June 14, 1984.
    478 A.2d 88
    Hassler, Appellants, v. Erie Ins. Co.
    Submitted April 25, 1984.
    Brett A. Huckabee, for appellants;
    Bradley D. Miller, for appellee.
    Before McEWEN, BECK and CERCONE, JJ.
   Order affirmed.


text:
    June 15, 1984.
    478 A.2d 89
    Albrecht, Appellant, v. Akey et al.
    Argued March 15, 1984.
    Larry A. Keener, for appellant;
    William F. Campbell, for Akey; Thomas A. Walratt, Jr., for Cook;
    Raymond E. Ginn, Jr., for Boom and Cook, appellees.

      Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   Judgment affirmed.

WIEAND, J., concurred in the result.


text:
    478 A.2d 89
    Blessing, Appellant, v. Morgan Trailer Manufacturing.
    Argued February 16, 1984.
    Donald F. Smith, Jr., for appellant;
    Richard E. Fehling, for appellees.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Order affirmed.


text:
    478 A.2d 89
    Cappetta v. Consumers Life Ins. Co., Appellant.
    Petition for Allowance of Appeal Denied Nov. 6, 1984.
    Argued November 2, 1983.
    Jordan D. Cunningham, for appellant;
    Thomas E. Brenner, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   Order affirmed.


text:
    478 A.2d 89
    Commonwealth v. Aloisio, Appellant.
    Petition for Allowance of Appeal Denied Oct. 25, 1984.
    Submitted May 15, 1984.
    William F. Cercone, Jr., for appellant;
    Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 90
    Commonwealth v. Barnes, Appellant.
    Submitted January 4, 1984.
    Marilyn J. Gelb, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for appellee.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   Order affirmed in part and reversed in part.


text:
    478 A.2d 90
    Commonwealth v. Borger, Appellant.
    Submitted May 4, 1984.
    Ronold J. Karasek, for appellant;
    John F. Spirk, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 90
    Commonwealth v. Brown, Appellant.
    Submitted February 24, 1984.
    Scott A. Evans, Assistant Public Defender, for appellant;
    Katherene E. Holtzinger, Deputy District Attorney, for appellee.
    Before SPAETH, P.J., and CIRILLO and CERCONE, JJ.
   Affirmed.


text:
    478 A.2d 91
    Commonwealth v. Burton, Appellant.

      Argued March 22, 1984.
    John P. Cotter, for appellant;
    Leslie A. Sudock, Assistant District Attorney, for appellee.
    Before BECK, TAMILIA and HOFFMAN, JJ.
   Judgment of sentence affirmed.

BECK, J., concurred in the result.


text:
    478 A.2d 91
    Commonwealth v. Caesar, Appellant.
    Submitted March 5, 1984.
    Augustine J. Rieffel, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 91
    Commonwealth v. Calloway, Appellant.
    Submitted February 24, 1984.
    David S. Keller, for appellant;
    Gregory B. Abeln, Assistant District Attorney, for appellee.

      Before SPAETH, P.J., and CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    478 A.2d 91
    Commonwealth v. Carroll, Appellant.
    Submitted October 7, 1983.
    Jack J. Bulkin, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for appellee.
    Before BROSKY, MONTGOMERY, and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 92
    Commonwealth v. Chacker, Appellant.
    Submitted March 5, 1984.
    Richard M. Lovenwirth, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   Order reversed and remanded for an evidentiary hearing. Jurisdiction relinquished.

ROWLEY, J., filed a concurring memorandum.


text:
    478 A.2d 92
    Commonwealth v. Cook, Appellant.
    Submitted March 23,1984.
    Richard S. Levine, Assistant Public Defender, for appellant;
    Melinda G. Tell, Assistant District Attorney, for appellees.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   Judgment of sentence vacated; case remanded for further proceedings. Jurisdiction is relinquished.


text:
    478 A.2d 92
    Commonwealth, Appellant, v. Cummiskey.
    Petition for Allowance of Appeal Denied Oct. 9, 1984.
    Submitted February 16, 1984.
    Joseph J. Hylan, Assistant District Attorney, for appellant;
    Anthony J. Giangiulio, for appellee.

      Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Order affirmed.


text:
    478 A.2d 93
    Commonwealth, Appellant, v. Dively.
    Petition for Allowance of Appeal Denied Sept. 27, 1984.
    Argued April 3, 1984.
    Kevin A. Hess, Assistant District Attorney, for appellant;
    Wesley J. Oler, Jr., for appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   Order affirmed.

OLSZEWSKI, J., filed a dissenting memorandum.


text:
    478 A.2d 93
    Commonwealth v. Egenlauf, Appellant.
    Petition for Allowance of Appeal Denied Sept. 24, 1984.
    Submitted March 23, 1984.
    John H. Corbett, Jr., Public Defender, for appellant;
    Melinda G. Tell, Assistant District Attorney, for appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 93
    Commonwealth v. Garret, Appellant.
    Petition for Allowance of Appeal Denied Oct. 25, 1984.
    Submitted February 24, 1984.
    Jeffery M. Cook, Assistant Public Defender, for appellant;
    Katherene E. Holtzinger, Deputy District Attorney, for appellee.
    Before SPAETH, P.J., and CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    478 A.2d 94
    Commonwealth v. Gibson, Appellant.
    Submitted May 4, 1984.
    Catherine A. Porter, for appellant;
    William F. Merz, Assistant District Attorney, for appellee.

      Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 94
    Commonwealth v. Green, Appellant.
    Argued March 21, 1984.
    Robert B. Manchester, for appellant;
    Robert A. Mix, District Attorney, for appellee.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 94
    Commonwealth v. Hayes, Appellant.
    Argued February 7, 1984.
    Thomas A. Livingston, for appellant;
    Kemal A. Mericli, Assistant District Attorney, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   We reverse judgment of sentence and order a new trial.


text:
    478 A.2d 94
    Commonwealth v. Hughes, Appellant.
    Petition for Allowance of Appeal Denied Nov. 12, 1984.
    Submitted May 4, 1984.
    M. Emmons Stivers, Assistant Public Defender, for appellant;
    Vram Nedurian, Jr., Assistant District Attorney, for appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   Order affirmed.


text:
    478 A.2d 95
    Commonwealth v. Huzzard, Appellant.
    Submitted February 24, 1984.
    John D. Flinchbaugh, for appellant;
    Sheryl A. Dorney, Assistant District Attorney, for appellee.
    Before SPAETH, P.J., and CIRILLO and CERCONE, JJ.
   Judgment affirmed.


text:
    478 A.2d 95
    Commonwealth v. Jackson, Appellant.
    Petition for Allowance of Appeal Denied Oct. 12, 1984.
    Submitted April 16, 1984.
    James A. Lammendola, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 95
    Commonwealth v. Kovach, Appellant.
    Argued May 16, 1984.
    David J. Weaver, for appellant;
    Dennis M. McGlynn, Assistant District Attorney, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 95
    Commonwealth v. Lee, Appellant.
    Submitted February 27, 1984.
    John H. Corbett, Jr., Public Defender, for appellant;
    Dara A. DeCourcy, Assistant District Attorney, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   Affirmed.


text:
    478 A.2d 96
    Commonwealth v. Lewis, Appellant.
    Argued May 17, 1984
    Kerrington J. Lewis, for appellant;
    Edward M. Clark, Assistant District Attorney, for appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   Order affirmed.


text:
    478 A.2d 96
    Commonwealth v. McMahon, Appellant.

      Submitted February 3, 1984.
    Joseph D. McMahon, appellant, in propria persona;
    James A. Meyer, District Attorney, for appellee.
    Before CHULLO, BECK and JOHNSON, JJ.
   Order of the PCHA court affirmed.


text:
    478 A.2d 96
    Commonwealth v. Miller, Appellant.
    Submitted March 22, 1984.
    Lydia Kirkland, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for appellee.
    Before BECK, TAMILIA and HOFFMAN, JJ.
   Judgment of sentence vacated as to the charge of possession of an instrument of crime; judgment of sentence affirmed in all other respects.


text:
    478 A.2d 97
    Commonwealth v. Murnighan, Appellant.
    Submitted April 16, 1984.
    Stuart M. Golant, for appellant;
    Leonard J. Frawley, Jr., District Attorney, for appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   Judgment of sentence affirmed.

CERCONE, J., filed a concurring and dissenting memorandum.


text:
    478 A.2d 97
    Commonwealth v. Nalewak, Appellant.
    Petition for Allowance of Appeal Denied Oct. 15, 1984.
    Submitted February 24,1984.
    David B. Dowling, for appellant;
    John M. Eakin, District Attorney, for appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    478 A.2d 97
    Commonwealth v. Napolitan, Appellant.
    Petition for Allowance of Appeal Denied Oct. 30, 1984.

      Argued March 14, 1984.
    William J. Hall, for appellant;
    Amil M. Minora, Assistant District Attorney, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   Judgment of sentence affirmed.

WIEAND, J., filed a concurring memorandum.


text:
    478 A.2d 98
    Commonwealth v. Nicholson, Appellant.
    Petition for Allowance of Appeal Denied Nov. 12, 1984.
    Submitted February 24, 1984.
    Kenneth L. Rotz, for appellant;
    Gary E. Hartman, District Attorney, for appellee.
    Before SPAETH, P.J., and CIRILLO and CERCONE, JJ.
   Judgment affirmed.

CERCONE, J., concurred in the result.


text:
    478 A.2d 98
    Commonwealth v. Payne, Appellant.

      Submitted January 4, 1984.
    Jay S. Gottlieb, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for appellee.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 98
    Commonwealth v. Prisk, Appellant.
    Submitted March 19, 1984.
    Kimberly Hamilton, Public Defender, for appellant;
    Robert A. Mix, District Attorney, for appellee.
    Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
   Affirmed.


text:
    478 A.2d 98
    Commonwealth v. Ramsey, Appellant.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      Submitted November 8, 1983.
    Paulette J. Balogh, Assistant Public Defender, for appellant;
    Melinda G. Tell, Assistant District Attorney, for appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 99
    Commonwealth v. Redclay, Appellant.
    Submitted February 24, 1984.
    Christopher J. Coyle, for appellant;
    Daniel J. McDevitt, Assistant District Attorney, for appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   Affirmed.


text:
    478 A.2d 99
    Commonwealth v. Santo, Appellant.
    Submitted October 14, 1983.
    Francis C. Sichko, for appellant;
    Daniel Lucian Chunko, Assistant District Attorney, for appellee.

      Before CAVANAUGH, McEWEN and BECK, JJ.
   The denial of PCHA relief is affirmed.


text:
    478 A.2d 99
    Commonwealth v. Stewart, Appellant.
    Submitted October 7, 1983.
    Vincent T. Snyder, for appellant;
    Robert B. Lawler, Assistant District Attorney, for appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Petition to withdraw is granted. Order affirmed.


text:
    478 A.2d 99
    Commonwealth v. Surdykowski, Appellant.
    Submitted January 4, 1984.
    John Krisa, for appellant;
    Michael Krushinski, Assistant District Attorney, for appellee.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    478 A.2d 100
    Commonwealth v. Zant, Appellant.
    Argued December 15, 1983.
    Kalvin Kahn, for appellant;
    Alan Sacks, Assistant District Attorney, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Affirmed.


text:
    478 A.2d 100
    Dobish et ux. v. Guarantee Builders, Appellant.
    Petition for Allowance of Appeal Denied Jan. 17, 1985.
    Submitted February 27, 1984.
    Andrew M. Schifino, for appellant;
    Jay Y. Rubin, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   Affirmed.


text:
    478 A.2d 100
    E.G. Frederick Health Ctr., Appellant, v. Sponaugle et al.
    Argued April 5, 1984.
    Roger T. Shoop, for appellant;
    Jack M. Hartman, for appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   Order affirmed.


text:
    479 A.2d 624
    Handfinger v. Teamsters Pension Trust etc., Appellant.
    Reargument Denied Aug. 28, 1984.
    Argued February 14, 1984.
    Nicholas N. Price, for appellant;
    Barry J. Goldstein, for appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Judgment affirmed.

CAVANAUGH, J., filed dissenting memorandum.


text:
    478 A.2d 100
    Housing Authority of Easton v. Alvin, Appellant.
    Submitted March 22, 1984.
    Judith L. Jones, for appellant;
    Stephen J. Kreglow, for appellee.
    Before BECK, TAMILIA and HOFFMAN, JJ.
   Affirmed.


text:
    478 A.2d 101
    In re Adoption of E.J.L.
    Argued January 25, 1984.
    Dennis P. Zawacki, for appellant;
    Gary F. Selway, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Order affirmed.


text:
    478 A.2d 101
    Kindquist v. Samero, Appellant.
    Petition for Allowance of Appeal Denied Nov. 12, 1984.

      Argued March 22, 1984.
    Arsen Kashkashian, Jr., for appellant;
    Gerry Woods, for appellees.
    Before BECK, TAMILIA and HOFFMAN, JJ.
   Reversed and remanded. Jurisdiction relinquished.

BECK, J., concurred in the result.


text:
    478 A.2d 101
    King, Appellant, v. Arco et al.
    Argued March 20, 1984.
    Myron H. Deutsch, for appellant;
    James M. Brogan, for Arco;
    James M. Marsh, for Jester; appellees.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   Order of the Lower Court is affirmed.


text:
    478 A.2d 101
    Marguerite Inv. Inc., Appellant, v. Gordon.
    Argued March 20,1984.
    Susan M. Santanosto, for appellant;
    Robert Lapowsky, for appellees.

      Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   Affirmed.


text:
    478 A.2d 102
    Mendoza, Appellant, v. Stangas.
    Argued December 13, 1983.
    Keith S. Erbstein, for appellants;
    Daniel H. Shertzer, for appellees.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Affirmed.


text:
    478 A.2d 102
    Moglia, Appellant, v. Penn Traffic Co. et al.
    Argued March 13, 1984.
    Michael J. Byrne, Jr., for appellant;
    Larry K. Elliott, for appellees.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   Order affirmed.


text:
    478 A.2d 899
    Nationwide Insurance v. Rentas, Appellants.
    Reargument Denied Aug. 16, 1984.
    Argued November 22, 1983.
    Allen L. Feingold, for appellants;
    Edward J. Tuite, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order of the court is affirmed.


text:
    478 A.2d 102
    Oberman, Appellant, v. Turley.
    Argued March 20, 1984.
    Edward D. Foy, Jr., for appellant;
    Vincent J. La Brasca, for appellee.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   Order of the lower court is affirmed.

SPAETH, President Judge, filed a concurring memorandum.

BECK, J., concurred in the result.


text:
    478 A.2d 102
    Siebert v. Laties, Appellant.
    Submitted February 27, 1984.
    Charles J. Duke, for appellant;
    Joseph J. Malizia, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   Order affirmed.


text:
    478 A.2d 103
    Smith et al. v. Sponseller et al., Appellant.
    Argued November 1, 1983.
    Morrison B. Williams, for appellants;
    James T. Yingst, for appellees.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   Order affirmed.


text:
    478 A.2d 103
    Adam Zick et al., Appellant, v. Albert Zick et al.

      Argued February 15, 1984.
    Ralph P. Carey, for appellants;
    George E. Clark, for appellees.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Order affirmed.


text:
    478 A.2d 103
    Zick, Appellant, v. Zick.
    Argued February 15, 1984.
    Clement E. Kisailus, for appellant;
    George E. Clark, for appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Order affirmed.


text:
    June 19, 1984.
    478 A.2d 103
    Commonwealth v. Fallstich, Appellant.
    Submitted May 23, 1984.
    Edward R. Eidelman, Assistant Public Defender, for appellant;
    William H. Platt, District Attorney, for appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   Affirmed.


text:
    478 A.2d 104
    Commonwealth v. Williams, Appellant.
    Submitted April 26, 1984.
    George C. Brady III, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    478 A.2d 104
    Leslie, Appellant, v. Pocono International.
    Argued May 24, 1984.
    Lee C. Krause, for appellant;
    Joseph P. Lenahan, for appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   Affirmed.


text:
    481 A.2d 360
    Weiss, Appellant, v. Wolf.
    Reargument Denied Aug. 31, 1984.
    Submitted May 23, 1984.
    Allen Feingold, for appellant;
    Susan M. Warnock, for appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   Affirmed.


author: Orlady, J.,

text:
    Moss v. Lancaster & York Furnace Street Railway Company, Appellant.

      Negligence — Street railways — Passengers—Accident on connecting line— Tickets.

    Where a street railway company sells a return ticket to a point on another railway with which it is connected by intersecting switches and connecting wires, and runs a car operated by its own crew to the point in question, it will be liable in damages to a purchaser of the ticket who is injured by the negligence of the crew while the car is running on the connecting line.
    Argued Nov. 15, 1906.
    Appeal, No. 186, Oct. T., 1906, by defendant, from judgment of C. P. Lancaster Co., April T., 1905, No. 44, on verdict for plaintiff in case of Rebecca J. Moss v. The Lancaster & York Furnace Street Railway Company.
    Before Rice, P. J., Pouter,, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Hassler, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the defendant presented the following points :
    1. There is no evidence in the case to show that either the president or superintendent of defendant company had any authority to contract to operate its ears, or to accept for it passengers over the Lancaster and Southern Railroad, which was an independent railroad not under defendant’s control and forming no part of its system. In the absence of a contract, expressed or implied with defendant, plaintiff was not its passenger and not entitled to recover. Answer: Refused. [1]
    February 25, 1907:
    2. If the jury believe, from all the evidence in the case, that the defendant company did not undertake and was not bound to carry the plaintiff over the line of another railway company, and that it did so only at the request of plaintiff through her agent, and that the party or person who induced her agent, and that the party or person who induced defendant’s employee to transport plaintiff from Martic Forge to Mt. Nebo assumed all the risks of that passage, there can be no recovery, and the verdict must be for defendant. Answer ; Refused. [2]
    Verdict and judgment for plaintiff for 1500. Defendants appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      W. TJ. Hensel and A. F. Ilostetter, with them J. II. Byrne, for appellant.

      G. F. Montgomery and Gr. Boss Fshleman, with them Leo Maefarland, for appellee.
   Opinion by

Orlady, J.,

There was sufficient evidence in this case to warrant the jury in concluding that the defendant company agreed to carry the funeral party, of which the plaintiff was a member, from Lancaster to Mt. Nebo. A special rate of fare was exacted and paid, and while the special tickets appear on their face to be good only from Lancaster to Martic Forge and return, the car in which the party was carried to Mt. Nebo was under the personal charge of the defendant’s superintendent, and its crew consisted of a conductor, motorman and sander.

The principal contention of the appellant is, that there is no evidence to show that the defendant company had any authority to run their car over the line from Martic Forge to Mt. Nebo, it being a road owned by an independent company, and that the running of the car from Martic Forge to Mt. Nebo “ was beyond the scope of the power and authority of either the superintendent or president of the defendant company, and even though the facts were found that the superintendent did run, and the president agreed to its running, such agreement and their action would not be binding upon the defendant.” The defendant’s superintendent and crew did in fact run the car from Martic Forge to Mt. Nebo in consideration of the fare paid by the passengers in that ear; and on the return trip while in full control of the car were so negligent in their management of it as to cause the accident in which the plaintiff was injured. The roads were connected with intersecting switches and connecting trolley wires so as to make a continuous system.

It is conceded that the party was carried from Lancaster to Millersville over an independent road, and it would be unreasonable to exact of one who pays fare to a destination, to inquire into the charter rights of the carrying company throughout the course of travel where the defendant’s officers whose negligence caused the accident, had entire charge of the car and the power propelling it. The apportionment of equities and liabilities between the several roads over which the car was run may well be left to be adjusted by the companies themselves. The Lancaster & Southern Railway Company (from Martic Forge to Mt. Nebo) did not contribute to the accident to this plaintiff, — its roadbed was intact, but the car was so recklessly managed that the crew lost -control of it on a grade, and then abandoned it by jumping from it.

In the light of the proof, which was clear and practically undisputed, this plaintiff paid the fare asked by the defendant, and was not simply presumably a passenger, but was properly to be considered as one in the legal sense of the word. The disputed questions of fact as to the cause of the accident were carefully left to the jury in a full and adequate charge.

The assignments of error are overruled and the judgment is affirmed.


text:
    Dulin, Appellant, v. Dulin.
    February 25,1907:

      Divorce — Domicile—Residence—Intention.
    On a libel for divorce it must affirmatively appear that there has been a clear intention on the part of the libelant to abandon a former residence, and to make this state a permanent one with domiciliary intent, coupled with an actual bona fide residence for one year within the commonwealth previous to the filing of the petition or libel. Each requirement is essential and all must combine to warrant the courts in making a decree in divorce.
    Argued Dec. 12, 1906.
    Appeal, No. 241, Oct. T., 1906, by plaintiff, from decree of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 207, dismissing libel in divorce in case of Albert Samuel Dulin v. Emmer Peculiar Dulin.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel in divorce.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dismissing the libel.

      L. Stauffer Oliver, with him Warren F. Martin, for appellant.
    —Bona fide residence for one year is sufficient: Lyon v. Lyon, 30 Pa. C. C. Rep. 342; Bigger v. Bigger, 28 Pa. C. C. Rep. 448 ; Whitney v. Whitney, 31 Pa. C. C. Rep. 444 ; Raymond v. Raymond, 14 Pa. Dist. Rep. 309; Reed v. Reed, 30 Pa. Superior Ct. 229 ; Hindman’s App., 85 Pa. 466 ; Guier v. O’Daniel, 1 Binney, 349; Price v. Price, 156 Pa. 617.
    No appearance nor printed brief filed for appellee.
   Opinion by

Orlady, J.,

The libelant and respondent were married in 1889 in Colorado of which state they were then residents. Within one year thereafter they removed to Washington, D. C., where they lived for some months and then returned to Colorado, in which state they remained until 1893. The next change was to Pennsylvania in 1895 for a stay until some time after 1S96, when they moved to New Jersey, and then to Washington, D. C., where they resided until 1905. In May of that year a business opening induced the libelant to remove to Philadelphia and the wife refused to accompany him. The only evidence on the subject of his residence in this jurisdiction is as follows : “ Q. Where do you live? A. No. 820 North 63d St., Philadelphia. Q. How long have you resided in the state of Pennsylvania? A. Since last May the 20th a year ago (1905).” The libel in divorce was filed August 13, 1906, and served August 14, 1906. After reference to a master and the talcing of testimony, the libel was dismissed for the reason that the court was not satisfied that the libelant became bona fide a citizen of this commonwealth.

The libelant has been engaged in newspaper, political and philosophical work as writer and lecturer, and has evidently changed his residence a number of times in response to the variable demands of his professional labors. Assuming that he has brought himself within the strict letter of our law, in having been in our state for a period of one whole year previous to the filing of the petition for divorce, there is no suggestion even of any domiciliary intent or of his abandonment of a former domicile. It is not the policy of our laws to make this state a transitory resting place to secure the annulment of a contract of marriage. Our statutes and decisions require that it must affirmatively appear that there has been a clear intention to abandon a former residence, and to make this state a permanent one with domiciliary intent, coupled with an actual bona fide residence for one year within this commonwealth previous to the filing of the petition or libel. Each requirement is essentia], and all must combine to warrant our courts in making a decree in divorce: Reed v. Reed, 30 Pa. Superior Ct. 229. The testimony in this case fully justified the conclusion of the court on this phase of the case, so that it is not necessary to inquire into the causes alleged for the divorce.

The decree is affirmed.


author: Head, J.,

text:
    Pease v. Doane, Appellant.

      Mortgage — Merger—Deed—Intention.
    A mortgage does not necessarily merge or become extinct by being united in the same person with the fee. When a person becomes entitled to an estate subject to a charge for his own benefit, he may take the estate and keep up the charge. The question in such case is upon the intention, actual or presumed, of the persons in whom the estates are united.
    Where a judgment creditor whose judgment is junior to a mortgage, suggests, for purposes of convenience and to save expense, that the owner of the land shall convey his equity of redemption to the mortgagee, and this is done without any of the parties intending that the mortgage debt shall be extinguished, the judgment creditor cannot thereafter claim that there had been a merger, and that his judgment had thereby become a first lien upon the land.
    Argued Nov. 22, 1906.
    Appeal, No. 199, Oct. T., 1906, by
    defendants, from judgment of C. P. Bradford Co., Sept. T., 1905, No. 91, on verdict for plaintiff in case of Edward E. Pease v. Samuel Doane and O. L. Haverly, terre-tenant and real owner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mortgage.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [It has been held by the courts of this state that “ a mortgage does not necessarily merge or become extinct by being united in the same person with the fee ; it may be kept alive where such is the intention of the holder, or the intention or agreement of the parties, or where it would be for the holder’s interest or advantage that the lien should be preserved. In the latter case his intention to keep the mortgage alive will be presumed. Merger being largely a question of intention, where there is the intention, actual or presumed, of the person in whom the mortgage and fee unite that there shall not be a merger, equity will not hold the mortgage extinguished.” I have quoted this from the opinion of one of the late judges of Supreme Court of this state.] [1]

      [Juror: The jury would like to ask and be informed if Dr. Pease could keep his judgment alive after the deed was given, without the consent of Mr. Doane ?
    The Court: We say to you, further, that where there is a union of the two estates — a union in the same person of the mortgage and the fee — if it is for the benefit of the mortgagee that the obligation shall be kept alive for his protection, the law in that case will not presume a merger. And we quote, as we did in our general charge, what has been said by the Supreme Court upon this question, and I think probably it will throw light on the inquiry that is in your minds: “ A mortgage does not necessarily merge or become extinct by being united in the same person with the fee; it may be kept alive where such is the intention of the holder or the intention or agreement of the parties — either one — or where it would be for the holder’s interest or advantage that the lien should be preserved. In the latter case his intention to keep the mortgage alive will be presumed. Merger being largely a question of intention, where there is the intention, actual or presumed, of the person in whom the mortgage and fee unite that there shall not be a merger, equity will not hold the mortgage extinguished.”
    Juror: Will you quote the last few lines over again?
    The Court: Merger being largely a question of intention, where there is the intention, actual or presumed, of the person in whom the mortgage and fee unite that there shall not be a merger, equity will not hold the mortgage extinguished.] [2]
    Juror: Here is the point: We take it for granted that the man that deeds his property deeds it for the purpose of killing the mortgage and for no other purpose, and he thinks at that time that it is killed, and the man who gets the deed and holds the mortgage believes that he can hold that mortgage good and keep it good. One man thinks that he cannot, and the other thinks he can. It is a little difficult to know just how to construe that.
    The Court: We think the last inquiry is covered by the third point presented to the court by the counsel for the plaintiff, and which was affirmed, which is this :
    “ Merger in Pennsylvania is a question of intention, actual or presumed, of the person in whom the interests are united, and when it is for the interest of the plaintiff to keep up the charge and collect his mortgage, in the absence of any evidence to show a contrary intention, the law will not presume an intent to merge.”
    Juror: I think that is satisfactory.
    [The Court: This intention must have existed or been formed at the time of the transaction, to keep the mortgage in life. And, as we said, all the circumstances are for you to consider, in arriving at what was the intention of the parties, and of the mortgagee, at the time.] [3]
    Verdict and judgment for plaintiff for $1,434.23. Defendant appealed.

      Errors assigned were (1, 2, 3) above instructions, quoting them.

      Rodney A. Merour, with him J. T. Corbin, for appellants.—
    The question of the extinguishment or satisfaction of a mortgage depends on the agreement and intention of the parties, the evidence as to which should be referred to the jury as a question of fact: Jones v. Johnson, 3 W. & S. 276 ; Fleming v. Parry, 24 Pa. 47 ; Oliphant v. Church, 19 Pa. 318 ; Germania Building Assn. v. Neill, 93 Pa. 322; Pennock v. Eagles, 102 Pa. 290; Meigs v. Bunting, 141 Pa. 233 ; Safe Deposit & Trust Co. v. Kelly, 159 Pa. 82; Eby v. Hoopes, 10 W. N. C. 315 ; Wentz v. DeHaven, 1 S. & R. 312 ; Girard Trust Co. v. Baird, 212 Pa. 41; Vetter v. Vetter, 13 Pa. Superior Ct. 584; Van Ormer’s Est., 25 Pa. Superior Ct. 234.

      Wm. Maxwell, for appellee. —
    A mortgage does not necessarily merge or become extinct by being united in the same person with the fee; it may be kept alive where such is the intention of the holder or the intention or agreement of the parties : Helmbold v. Man, 4Whart. 410 ; Peningtonv. Coats, 6 Whart. 277 ; Bryar’s App., 111 Pa. 81; Danhouse’s Est., 130 Pa. 256; Carrow v. Headley, 155 Pa. 96 ; Continental Title & Trust Co. v. Devlin, 209 Pa. 380 ; Moore v. Harrisburg Bank, 8 Watts, 138; Lowman v. bowman, 118 Ill. 582 (9 N. E. Repr. 245) ; Richardson, v. Hockenhull, 85 Ill. 124; Worcester Nat. Bank v. Cheney, 87 Ill. 602 ; Fellows v. Dow, 58 N. H. 21; Rumpp v. Gerkens, 59 Cal. 496; Gray v. Nelson, 77 Iowa, 68 (41 N. W. Repr. 566); Wallace v. Blair, 1 Grant, 75.
    February 25, 1907:
   Opinion by

Head, J.,

The doctrine of equitable merger has been often and clearly defined by our courts of last resort. We can therefore but restate it in the terms long since adopted and sanctioned by the highest authority and then determine how far, if at all, it is applicable to the facts of the present case.

“ Equity does not favor mergers; and, in law, mergers are said to be odious. It is generally, though not universally true, that merger depends on intention ; and it is only in those cases where it is perfectly indifferent to the party in whom the interests have united, whether the charge or term should (or should) not subsist, that in equity the term is merged Penington v. Coats, 6 Whart. 277.

“ As a merger is for the benefit of him in whom the two interests unite, it will never take place when it is against his interest, or where it is most for his advantage to keep the charge alive : Dougherty v. Jack, 5 Watts, 456 ; Helmbold v. Man, 4 Whart. 410. In such a case he may hold the estate, and also a judgment upon it: Zeigler v. Long, 2 Watts, 205. Or a mortgage and also the equity of redemption : Moore v. Harrisburg Bank, 8 Watts, 138; Wallace v. Blair, 1 Grant, 75.

“ Merger depends, generally, upon the intention of the parties to be affected by it, and an intention to prevent it will be presumed whenever it is the interest of the party that the incumbrances shall not be sunk in the inheritance : ” Kline v. Bowman, 19 Pa. 24.

“ A mortgage does not necessarily merge or become extinct by being united in the same person with the fee. When a person becomes entitled to an estate subject to a charge for his own benefit, he may take the estate and keep up the charge. The question in such ease is upon the intention, actual or presumed, of the persons in whom the estates are united: ” Bryar’s Appeal, 111 Pa. 81.

■ Samuel Doane, being the owner of a tract of land, executed and delivered to the plaintiff the mortgage in suit which became the first lien upon the premises. It seems to be a fact, practically conceded by the testimony, that the amount of the debt, secured by the mortgage, approximated, if it did not equal, the value of the property. The mortgagor then conveyed the land, thus bound, to his father, Joseph Doane, from whom the title had come to him. The land was then encumbered by judgments in favor of Shoemaker and Haverly, one of the defendants, the liens of which were subsequent to that of the mortgage, and the aggregate amounts of which exceeded that of the mortgage.

Joseph Doane, being thus heavily indebted, fell ill and an arrangement was effected, at the suggestion of Shoemaker, the junior judgment creditor, that he should voluntarily convey his equity of redemption to Dr. Pease, the mortgagee. The only avowed purpose of this was to save the expense that would result from a judicial sale of the property, by the sheriff, if it should occur in the lifetime of the owner, or by the orphans’ court in case his sickness should terminate in his death. It is not contended, from the testimony, that either of the parties to this transaction then entertained the idea, much less expressed it, that its effect would be the extinction of the mortgage and the consequent loss of the debt secured thereby. Shortly afterwards Haverly caused an execution to be issued on his judgment. This resulted in a sale by the sheriff, at which, in the face of a formal notice from the plaintiff that his mortgage was in full force and that the purchaser would be required to pay the amount secured by it in addition to his bid, the land was bought in by Haverly for the common benefit of himself and Shoemaker. They now seek to defend against the scire facias sur mortgage on the ground that, by the acceptance of the deed, the mortgage, which represented the greater part of the value of the land, was merged and drowned in the equity of redemption, which, under then existing conditions, was of no practical value at all, and thus the land, now owned by them, has been released from the burden of discharging the plaintiff’s debt. Unless it be the province of equity to do iniquity, this would be a strange result to flow from the application of the doctrine of equitable merger.

It is manifest that the merger of the mortgage would be absolutely destructive of the plaintiff’s interests. According to all the cases cited and many others, the law, under such circumstances, would raise no presumption of the existence of any such suicidal intention on the part of the plaintiff. On the contrary, the presumption would be that no such injurious intention could be reasonably predicated of his act. Of course this presumption would not be conclusive; it could be rebutted by evidence that would warrant a jury in finding that a merger had been expressly agreed to, or that the plaintiff’s conduct and actions were such as could be only fairly ascribed to such an intention existing in his mind although not formally expressed in words. As already stated there is not the slightest evidence of the expression of an intent to merge and extinguish the mortgage by either of the parties, and as the case was submitted, the verdict of the jury conclusively establishes that no such intention in fact existed, at least in the mind of Dr. Pease, the plaintiff. It is difficult to see how they could have found otherwise. Joseph Doane says the mortgage was not mentioned at the time the deed was made, and that the object in making the deed was to save the expense of a foreclosure proceeding', estimated to be about $100. Shoemaker, who suggested the arrangement and was present at its consummation, gives the following testimony on cross-examination: “ Q. It was said there by Dr. Pease, that if anyone else got their pay, they would have to pay his mortgage ? A. Yes, that is the way we understood it and that is the way we talked. Q. That if any of the other creditors of Joseph Doane got their pay they would have to first pay his mortgage ? A. Yes, pay his debt. Q. And that was agreed among all three of you ? A. Yes, sir. Q. Then there was no agreement at that time that Dr. Pease was to satisfy his mortgage, was there ? A. No, there was nothing said about the satisfaction of the mortgage.

Here certainly was a substantial foundation, in the testimony of an adverse witness, upon which the jury could rest their conclusion that the plaintiff never intended to destroy his mortgage or surrender his place as the first lien creditor. His subsequent offers to convey the land to the junior creditors or to anyone else who would pay his claim, his notice at the sheriff’s sale, his entire conduct and all his proven declarations seem to be in harmony with the conclusion reached by the jury.

The chief weight of the argument advanced by the learned counsel for appellants, in which many cases are cited, seems to be aimed at establishing the proposition that where an estate in fee is conveyed to one who already owns a lesser estate in the same land, the question of a merger of the latter in the former is one of intention of both parties to the second conveyance, whereas the trial court, so it is alleged, declared it to be a question of intention of the party in whom the two estates united. Assuming the law to be as thus contended for, which we do not concede in the absence of an express agreement to that effect, the argument seems to be more academic than practical. The burden then would be on the appellants to satisfy the jury that both Doane and Pease intended that the mortgage should be merged in the deed. The finding that one of the parties at least had no such intention is just as fatal to the defendants as, and indeed is equivalent to, a formal finding that when the deed was made it was not the intention of both the parties to it that the mortgage should be thereby extinguished.

We see no advantage to be gained by a separate discussion 'of the several assignments of error, all of which raise substantially the same question. We are all of the opinion that the vital question of fact was fairly submitted to the jury and that the record discloses ample testimony on which the verdict may securely rest.

Judgment affirmed.


author: Porter, J.,

text:
    Sullenberger, Appellant, v. Chester Traction Company.

      Negligence — Street railways — -Infant—Contributory negligence of parent.

    Where a child under seven years of age is sent by its mother on an errand which involves the child in the peril of crossing a busy street on which street cars, wagons and other vehicles frequently passed, and the child steps directly in front of a street car and is killed, the parents cannot recover from the street car company damages for the death of the child.
    The incapacity of a child under seven years of age to appreciate and avoid danger is conclusively presumed.
    Argued Nov. 22, 1906.
    Appeal, No. 207, Oct. T., 1806, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1904, No. 55, for defendant non obstante veredicto in case of Thomas M. Sullenberger and Annie M., his wife, v. Chester Traction Company.
    February 25, 1907:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for death of a child.
    Before Johnson, P. J.
    At the trial the court refused binding instructions in favor of the defendant, and the jury returned a verdict for plaintiffs for $750. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned among others was in entering judgment for defendant non obstante veredicto. (

      A. B. Geary, for appellants.
    — The court held that the parent was guilty of negligence per se in sending the child across the street.
    We respectfully submit that that was error: Penna R. R. Co. v. Lewis, 79 Pa. 33; Penna. R. R. Co. v. Brooks, 2 Walker (Pa.), 122; Knickerbocker Ice Co. v. Brooks, 4 Walker (Pa.), 265; Lederman v. Penna. R. R. Co., 165 Pa. 118; Phillips v. Traction Co., 8 Pa. Superior Ct. 210; Daubert v. Delaware, Lackawanna & Western Railroad Co., 199 Pa. 345.

      J. B. Hannum, for appellee.
    — The child was less than seven years old. The law presumes it incapable to understand and avoid danger. This is conclusive and irrebutable; when over seven years of age capacity can be proven, but under, it cannot: Parker v. Ry. Co., 207 Pa. 438.
    This being the law, it necessarily follows that if a child is conclusively presumed by law to be incapable of negligence, and of incapacity to guard against and avoid danger, a parent who sends such a child in a place of danger, without a protector, is conclusively presumed to be guilty of negligence and cannot recover in an action for its death caused by the very dangerous agency which he should have guarded the child against: Glassey v. Hestonville, etc., Ry. Co., 57 Pa. 117 ; Pittsburg, etc., Ry. Co. v. Pearson, 72 Pa. 169; Smith v. Ry. Co., 92 Pa. 450; Pollack v. R. R. Co., 210 Pa. 634.
   ' Opinion by

Porter, J.,

The appellants brought this action to recover damages for the death of their child, which was alleged to have been caused by the negligent operation of one of the defendant company’s cars. The defendant company at the trial submitted two points requesting binding instructions in its favor, and took exceptions to the refusal of said points by the court. The court submitted the case to the jury, but after a verdict in favor of the plaintiffs, upon consideration of the questions raised by the points submitted by the appellee, entered judgment in favor of the defendant, non obstante veredicto, which action is the foundation of the first specification of error.

The question raised by the prayer for binding instructions in favor of the defendant, and upon which the court subsequently entered judgment in favor of the defendant notwithstanding the verdict, was the contributory negligence of the appellants. The facts upon which the prayer for such instructions was based were not disputed. At the time of the accident the plaintiffs with their family live'd in the house No. 202 Third street, in the city of Chester, situate at the corner of that street and Penn street; on the opposite side of the street, at No. 218 Third street, distant 180 feet west from Penn street, there was a butcher shop. The defendant company operated the line of street cars on Third street over which cars passed very frequently; and the street was one of the main thoroughfares of the city of Chester, very much used by wagons and other vehicles. These facts were well known to Annie M. Sullenberger, one of the plaintiffs, who on the evening of October 18, 1904, sent the young child, a girl less than seven years of age, on an errand to the butcher shop at No. 213 Third street, the execution of which errand necessarily involved crossing the busy street and the car tracks thereon. The child safely reached the butcher shop and started to return; after stopping to talk for a short time to another child on the sidewalk, instead of going’to the crossing at Penn street, she left the sidewalk and started diagonally' across Third street towards her home, she walked slowly from the curb to the car track and stepped directly in front of a car, which had for a considerable time been in full view as it approached, and was killed. All these facts were established by the evidence produced by the plaintiffs, and were undisputed.

Had an adult stepped without looking directly in front ■ of a moving car which had long been plainly in sight, such action would have involved contributory negligence which must have defeated a recovery for the injury suffered. The rule of law as to mutual negligence between adult plaintiffs and defendants does not, however, apply to the case of a child of tender years, who is to be held only to the exercise of that degree of care and discretion ordinarily to be expected from children of that age, and had this child survived her injuries an action to recover in her own right might have been maintained: Smith v. O’Connor, 48 Pa. 218; Rauch v. Lloyd & Hill, 31 Pa. 358. Even although the parents of the child may have been negligent in permitting it to go into a place of danger, such negligence is not imputed to the child, so as to prevent a recovery by the latter: Smith v. O’Connor, 48 Pa. 218. When an action is brought by the parent for an injury to his infant child, by which the child’s services have been lost, there are other considerations to be regarded. In such a case it may be that the parent should be treated as a concurrent wrongdoer. Protection being a paternal duty, the entire failure to extend it is negligence. If a father permits a child of tender years to run at large, without a protector, in a city traversed constantly by cars and other vehicles, he fails in the performance of his duty and is guilty of negligence. It is the duty of the parent at all times to shield his child from danger, and this duty is the greater when the risk is imminent; the degree of protection is in proportion to the helplessness and indiscretion of the child. Mr. Justice Fell, in Parker v. Street Railway Company, 207 Pa. 438, said: “ The measure of a child’s responsibility for contributory negligence is his capacity to understand and avoid danger. In analogy to the common law rule of responsibility for crimes committed, a child under seven years of age has been conclusively presumed to be incapable of appreciating and guarding against danger; and after seven the presumption of incapacity, although not irrebuttable, and growing less strong with each year, continues until fourteen, when the presumption of capacity arises. But these are only-convenient points in the uncertain line between capacity and incapacity, at which the law changes the presumption. The standard of responsibility is the average capacity of others of the same age and experience, and to this standard a child should be held in the absence of evidence on the subject; ” citing Nagle v. Allegheny Valley Railroad Company, 88 Pa. 35; Kehler v. Schwenk, 144 Pa. 348. The incapacity of a child under seven years of age to appreciate and avoid danger is conclusively presumed. Between seven and fourteen years there is a prima facie presumption of incapacity, but capacity, may be shown by evidence, positive or circumstantial. It has been held that, in the absence of evidence of particular danger, it is not negligence per se to permit a child nine years of age to go upon the public highways without a protector: Pennsylvania Railroad Company v. Lewis, 79 Pa. 33; Daubert v. Railroad Company, 199 Pa. 345; Phillips v. Traction Company, 8 Pa. Superior Ct. 210. When a parent makes reasonable efforts to guard his child from dangers, but the child escapes and without the knowledge of the parent goes into a place of danger, the question of contributory negligence upon the part of the parent is usually for the jury: Lenderman v. Railroad Company, 165 Pa. 118; Pittsburg, Allegheny & Manchester Railway Company v. Pearson, 72 Pa. 169 ; Pennsylvania Company v. James, 81* Pa. 194. The present case does not fall within either of the classes of cases last cited; the child was under seven years of age and was by law presumed to be incapable of appreciating and avoiding danger, and she was sent by the parent in whose charge she was upon an errand which necessarily involved her in the peril of. crossing one of the main streets of a busy city along which street cars, wagons and other vehicles very frequently passed.

“ When the parent permits a child of tender years to run at large without a protector, in a city traversed by cars and other vehicles he is guilty of contributory negligence, in case of injuryto thechild. If thecase is barelysuch, negligence is a conclusion of law, and should not be submitted to the jury: Glassey v. Hestonville, etc., Passenger Railway Company, 57 Pa. 172; Pittsburg, Allegheny & Manchester Railway Company v. Pearson, 72 Pa. 169 ; Smith v. Hestonville, etc., Passenger Railway Company, 92 Pa. 450 ; Pollack v. Railroad Company, 210 Pa. 634. The degree of protection required of the parent being in proportion to the helplessness and indiscretion of the child, it follows that the highest degree must be exacted during that period when the child is by law presumed to be incapable of appreciating and avoiding danger, while the child is under seven years of age. The expression “ a child of tender years ” must necessarily be referred to that period of the child’s life when it is conclusively presumed by law to be unable to take care of itself. • The learned judge of the court below was .correct in holding that to send such a child upon an errand which necessarily exposed it to perils which it had not the capacity to avoid was contributory negligence. The first specification of error is dismissed.

The other specifications of error refer to the rejection of evidence, and, as the jury found in favor of the plaintiffs, it is not necessary to consider them.

The judgment is affirmed.


text:
    Corrigan v. Cambridge Mutual Beneficial Association, Appellant.

      Insurance — Life insurance — Signature to application — Estoppel.
    Where an application for life insurance is signed by the beneficiary, and not by the applicant, and the officers of the association, with full knowledge of the irregularity in the signature, issue a policy of insurance on the application, the company will thereafter be estopped from denying the validity of the policy on the ground of the irregularity in the signature.
    Argued Nov. 22, 1906.
    Appeal, No. 209, Oct. T., 1906, by defendant, from judgment of C. P. Delaware Go., Dec. T., 1904, No. Ill, on verdict for plaintiff in ease of Julia Corrigan v. Cambridge Mutual Beneficial Association.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance.
    Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for defendant for $190.53. Defendant appealed.

      February 25, 1907 :

      JError assigned was in refusing binding instructions for defendant.

      John TS. McDonough, for appellant, cited: Murphy v. Prudential Ins. Co., 30 Pa. Superior Ct. 560.

      O. B. Dickinson, with him J. 0. Taylor, for appellee, cited: Cumberland Valley Mut. Protection Co. v. Schell, 29 Pa. 31.
   Opinion by

Orlady, J.,

. The defense in this case is based upon a technicality which is wholly without merit. The person whose life was proposed for insurance was John Corrigan, a laborer, who had been importuned to take this insurance by one O'Donnell, a representative of the company, and to whom Corrigan gave, for O’Donnell to take down, his age, name, residence, where born, etc.; O’Donnell took with him the application with the statement that he “ would fix it all himself ” and later sent the policy to the beneficiary. The application is dated December 8th, 1902, and the policy was issued December 22d following. The beneficiary in both is Julia Corrigan, wife of the insured. The weekly dues were regularly paid by the beneficiary and accepted by the company for eighteen months, when the insured died. The application is signed “Julia Corrigan” and under her name there is printed “ applicant’s mark not accepted if able to write,” and at the right hand margin “ signature of the applicant to be made by the person proposed if 13 years old next birthday or over, but if younger by the parent or guardian.” The signature “Julia Corrigan” is witnessed by W. H. Taylor, who also signs a certificate as agent, in the following form: “ I certify that I have this 8th day of December 1902 personally seen and questioned the applicant herein named, and I recommend the society to accept the risk.” The application shows on its face the following indorsements: “Asst. Supt. ‘ J. O’Donnell,’ for office use, examined by ‘ J. O. D ’;“ For office use approved by ‘ R. S. M.’ ” It was admitted that Dr. R. S. Maison was the secretary of the association. Neither the certificate nor the by-laws printed thereon require the application to be signed by the applicant.

The trial in the court below opened with the following admission, “ it is agreed between counsel that the insured was in good standing at the time of his death, and that the By-laws of the association have been complied with with respect to the conditions precedent to the commencement of suit.” The application, if in any manner irregular as to the signature, was approved after it had been examined by the proper officers of the company, the policy was issued pursuant to that approval, and the dues were regularly paid thereunder. The answers in the application were in fact made by the applicant and it was signed by the beneficiary instead of by the applicant under the direct supervision of the agent of the company. The defendants contended that the marginal fine type notice on the application required the actual signature of the insured to validate it. In the light of the facts this must be considered as waived by the company, by the approval of J. O’Donnell, the assistant superintendent, and by Robt. S. Maison, who signed the policy as secretary, and issued it with full knowledge of the alleged irregularity, else it would appear to be conclusive that these officials deliberately arranged for this defense to entrap the insured, and subsequently received the dues during the applicant’s life.

It is quite true that the only safeguard such organizations have from imposition and fraud is through rigid compliance with their constitution and by-laws ; to which it may be pertinently added that in a large measure the only safeguard the members have is through the fair dealing of the agents and officers of the organization in calling the attention of applicants to such alleged irregularities, instead of sealing them with their approval until death has closed the lips of the party who could best explain the reason for the substituted name. To admit that the insured was in good standing in the company at the time of his death is inconsistent with the defense here set up, which went to the very foundation of his membership. The plaintiff did not seek to reform or contradict the contract, but relied upon it as having been secured and approved by the companjq and asserted that her name, as beneficiary, was substituted for the applicant’s with full knowledge of the officials of the company, as equivalent to the actual signature of the applicant who personally had made -true answers to all questions asked of him.

The assignments of error are overruled and the judgment is affirmed.


author: Beaver, J.,

text:
    Miller’s Estate.

      Auditor — Findings of fact — Evidence—Husband and wife.

    An auditor's finding of fact that a husband is indebted to his wife, when such finding is. based upon sufficient evidence, and is confirmed by the court below, will not be reversed by the appellate court except for manifest error!
    Where a husband receives money owing to his wife, and receipts for it as her agent, and it appears that the wife was not present when the payment was made, there is no presumption, after the husband's death, that he had paid over in his lifetime to his wife such moneys collected. The fact of payment must be proved.
    Argued Dec. 3, 1906.
    Appeal, No. 1, Oct. T., 1906, by Charles J. Miller, Trustee, from decree of C. P. Northampton Co., dismissing exceptions to auditor’s report in Estate of Jacob Miller, deceased.
    Before Rice, P! J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of J. W. Wilson, Esq., auditor.
    The opinion of the Superior Court states the case.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Harry C. Cope, for appellant.
    — It is well settled, and is undoubtedly the law, that where the wife permits her husband to receive the profits or rents of her separate estate, and they are living together, the legal presumption is that it was the intention of the wife to make a gift of the rents', etc., to her husband, and that it would be unjust to call him to account after the lapse of a number of years. The leading authorities on this point are as follows: McGlinsey’s Appeal, 14 S. & R. 64; Hauer’s Estate, 140 Pa. 420; Kittel’s Estate, 156 Pa. 445; Bubb v. Bubb, 201 Pa. 212; Mahon’s Estate, 202 Pa. 201.
    Wherever the acts of a person standing in a confidential relation may admit of two constructions, one right and the other tortious, the presumption is in favor of the former: Duff v. Wilson, 72 Pa. 447 ; Dowd v. Crow, 205 Pa. 214; Breiden v. Paff, 12 S. & R. 430 ; Horan v. Weiler, 41 Pa. 470; Farnham v. R. R. Co., 55 Pa. 53; Schum v. Penna. R. R. Co., 107 Pa. 8.
    February 25, 1907 :
    If it is a servant’s duty to collect money for his master, the presumption is that he handed it over and has acted in good faith: Turner v. Kouwenhoven,100 N. Y. 115 (2 N. E. Repr. 637).

      Nevin J. Loos, for appellee,
    cited: Wormley’s Estate, 137 Pa. 101; Stewart v. Stewart, 207 Pa. 59; Rine v. Hall, 187 Pa. 264; Wilkinson’s Estate, 192; Reber’s Estate, 143 Pa. 308; Lahr’s App., 90 Pa. 507 ; Mahon’s Est., 202 Pa. 201; Moore v. Moore, 165 Pa. 464.
   Opinion by

Beaver, J.,

The widow of decedent, who had conveyed his estate in his lifetime to a trustee, upon the trust (inter alia) “ that the said Charles J. Miller (trustee) as soon as conveniently can be done after the death of the said Jacob Miller, shall, out of said real estate and the rents, issues and profits thereof, pay all and every just indebtedness that may be due and owing by the said Jacob Miller,” etc., petitioned the court, the personal property of the decedent being insufficient for the payment of bis just debts: “ That said Charles J. Miller, trustee of the estate of Jacob Miller, and Charles J. Miller and George N. Miller, cestui que trust and heirs at law of said Jacob Miller, be made parties respondent and that a citation may be issued to them to appear in court and show cause why the indebtedness of said Jacob Miller to your petitioner should not be paid out of said real estate conveyed in trust, and that a decree may be made directing said Charles J. Miller, trustee, to pay to your petitioner the amount of the indebtedness of said Jacob Miller to her, and that an order may he made authorizing and directing said Charles J. Miller, trustee, to make sale of so much of said real estate as is sufficient for the payment of the debts of said Jacob Miller, and the costs of this proceeding.”

After an answer and replication, an auditor was appointed, who, after taking a considerable amount of testimony and k hearing, made five findings of fact, in the first two of which he found that the estate of Jacob Miller was indebted to Mary M. Miller, the petitioner, in two several amounts, which with interest from the death of the decedent aggregated $232.28. The remaining findings of fact denied the liability of the estate of the decedent to the petitioner for sums which constituted the bulk of the claim made by her. These facts being found, the conclusions of law at which the auditor arrived were fully warranted. The court below confirmed the auditor’s report.

We have read the 'testimony and find clear ground therein for the distinction made by the auditor between the moneys paid to the husband in the presence of the wife, or paid to the wife, in the husband’s presence, as rentals of her separate real estate, and those paid to the husband separate and apart from his wife, for which he receipted “M, M. Miller, per Jacob Miller,” particularly in view of the fact that at least so far as the Yotter rents were concerned he called for them at the business place of the tenant.

There is nothing in this case, as we view it, which will take it out of the established rule that the findings of fact by an auditor, approved by the court below, will not be disturbed, except for manifest error. It is not necessary to retrace the ground covered by the opinion of the court below, which is' sufficiently convincing and conclusive.

The application of the doctrine, omnia praesumuntur rite esse acta, which relates to public officers, which the appellant seeks to make here, is rather novel, and, if carried to its legitimate conclusion, would lead to the startling proposition, all men ought to pay their debts; they are, therefore, presumed to have paid them. The statement of the proposition answers itself. As the court below well observes : “ When money is thus received for the wife (under the circumstances stated above) payment to her by the husband will not be presumed. That fact must be proven.”

It is true that the wife did not receive all that she claimed. She, nevertheless, had a decree in her favor, a decree which would have carried costs in an ordinary suit in the common pleas. There is no reason, therefore, why the costs here should Hot be visited upon the contesting party, as in an ordinary suit at law.

The assignments of error are all overruled and the decree of the court below affirmed.


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    Schwindt v. Lehigh Water Company, Appellant.
    February 25, 1907 :

      Negligence — Water company — Bursting of main — Failure to inspect.

    In an action against a water company to recover damages to property resulting from the bursting of a water main in a street, a verdict and judgment for plaintiff will be sustained, where it appears that the main had been in the street for nearly fifty years, that it had originally been subjected to a pressure of sixty pounds, but that for some time prior to the accident the pressure had been increased to 110 pounds, that for two years before the accident the surface had from time to time settled in front of plaintiff's premises, indicating some trouble beneath, but that the defendant had neglected to inspect the main or remedy the trouble.
    Argued Dec. 4, 1906.
    Appeal, No. 36, Oct. T., 1906, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1905, No. 24, on verdict for plaintiff in the case of Mary Schwindt v. Lehigh Water Company.
    Before Rice, P. J., Poe-tee, Hendebson, Mobbison, Oblady, Head and Beaveb, JJ.
    Affirmed.
    Trespass to recover damages for injuries to property by the bursting of a water main.
    Before Scott, J.
    The facts appear by the opinion of the Superior Court.
    Yerdict for plaintiff for $1,035.64 on which judgment was entered. Defendant appealed.

      Error assigned was refusal to enter judgment for defendant non obstante veredicto.

      J. W. Wilson, for appellant.

      II. J. Steele, for appellee.
   Opinion by

Orlady, J.,

The defendant requested the court to give binding instructions in its favor, and not succeeding in this, entered a rule for judgment non obstante veredicto which was als'o resolved against it. The burden of its contention now is, that the court erred in both instances.

The undisputed testimony shows that its water main, a cast iron pipe, had been in the same location it occupied when the plaintiff’s premises were flooded for at least forty-six years. When originally constructed and for many years thereafter it had been under a pressure of about sixty pounds to the square inch, but for some time prior to the accident this pressure had been increased by a gravity system to 110 pounds.

At least two years before the accident happened a trench had been dug in the street in front of the plaintiff’s premises in order to effect a sewer connection, in close proximity to defendant’s water main, which -was between four and five feet beneath the surface of the street. Soon after this trench was filled up it became apparent from the persistent settling of the soil that there was some unusual condition affecting the place. The only thing done to relieve the difficulty was to deposit soil and ashes in the depression from time to time as the surface settled. The city engineer directed the plumber who had made the sewer connection to remedy the defect. The same means were applied several times, but without being successful, and the municipal authorities were notified of his inability to restore and preserve the surface. There was no attempt made by the defendant to discover the cause of this subsidence of the ground, and it contends, that as the uncontradicted testimony in the case shows that there is as yet no known limit to the life of a cast iron water pipe in the ground, it was not reasonably bound, to anticipate a break or fracture of its pipe as the cause of the settling of the street. The court could not say as a matter of law that the defendant should, or should not, have foreseen the exact cause inducing the street depression. The source of trouble was hidden, but it was right along or under the water main, and it is well known that accidents will happen in all concerns of human life, to all kinds of human agencies. The duty of the defendant under such circumstances was fairly defined by the trial judge in submitting that question of fact to the jury, viz: “ In the exercise of such care as an ordinarily prudent man would be required to make, was it incumbent upon them to make an inspection at different times and at periodical intervals along the lines upon the surface under which the pipes lay to ascertain whether or not there were any appearances of danger ? Was there any reason to apprehend injury at any point anywhere along the line of the system ? ” It must be conceded that there was some unusual agency at work under the street, and whether it was originally due to a break in the pipe, or whether the break was caused by the subsidence of the soil under or around the pipe, or induced by independent causes, is not the controlling question to determine the defendant’s liability. True, the water did not rise to the surface, but the settling of the street plainly indicated that the ground about the pipe was either settling to lower levels, or was being washed away through channels beneath the surface. This much, at least, the defendant should have known, and after two years of public notice of the facts it must be presumed to have had constructive notice of the condition then apparent to anyone. It may be that the water in the mains of such a service is not so dangerous as gas, but it may become dangerous when the pressure is practically doubled in pipes which have been in use for nearly half a century.

It is peculiarly appropriate that evidence of the character involved in this case should be submitted to the determination of a jury: Shirey v. Consumers’ Gas Co., 215 Pa. 399 ; Hartman v. Gas Co., 210 Pa. 19 ; Olive Stove Works v. Gas Co., 210 Pa. 141.

The rule of law in such cases has been frequently laid down to be that, negligence is the absence of such proper care, caution and diligence as under the circumstances reasonable and ordinary prudence would require to be exercised. It may consist as well in not doing the thing which ought to be done, as in doing that which ought not to be done, when in either case it caused the loss or damage to another : Fritsch v. Allegheny City, 91 Pa. 226; Kibele v. Philadelphia, 105 Pa. 41; Bodge v. Philadelphia, 167 Pa. 492.

In this case the cause of the plaintiff’s damage was unquestionably the broken water pipe, which is spoken of as an old fracture. There was no effort on defendant’s part to locate or stop it, though the evidence of something being wrong about the pipe was plainly visible for nearly two years. Whether such supervision of its plant was due diligence was a question of fact for the jury : Koelsch v. The Philadelphia Co., 152 Pa. 355 ; Rumsey v. Philadelphia, 171 Pa. 63 ; Morgan v. Duquesne Borough, 29 Pa. Superior Ct. 100; Devlin v. Beacon Light Co., 198 Pa. 583 ; Helbling v. Allegheny Cemetery Co., 201 Pa. 171.

None of the assignments of error can be sustained and the judgment is affirmed.