source: Caselaw Access Project

author: CIRILLO, Judge: WIEAND, Judge,

license: Public Domain

text:
    470 A.2d 634
    COMMONWEALTH of Pennsylvania v. Gerald H. KAUFFMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Dec. 30, 1983.
    Petition for Allowance of Appeal Granted July 24, 1984.

      Kenneth Lee Rotz, Gettysburg, for appellant.
    Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This appeal requires us to decide whether under certain circumstances a driver can be guilty of a violation of section 3743 of the Vehicle Code (duty to stop at the scene of an accident involving damage to attended property) despite his unawareness of having been in an accident.

On February 27, 1979, Roger T. Smith was driving his car north on South Franklin Street in Gettysburg. He stopped at the intersection of South Franklin and Chambersburg Streets, preparing to turn right onto Chambersburg Street.

At that time a moving van traveling west on Chambers-burg turned left onto South Franklin in front of Smith’s car. Smith saw that the van was turning too short and blew his horn and tried to back up. Before he could do so the left rear wheel well of the van caught the left front of Smith’s car, pushing the car about five feet and crushing its bumper and fender against its wheel. The van did not stop or slow down, but continued normally on down South Franklin Street.

Mr. Smith turned his car around and followed the van out of Gettysburg, but could not catch up with it because of traffic. He stopped at a Pennsylvania State Police barracks along the route and reported the accident. The desk officer at the barracks pursued the van and soon caught up with it. Upon stopping the van, the officer observed that it was damaged near the left rear wheel. The van driver, Gerald Kauffman, explained that he was unaware his van had struck the Smith auto. Kauffman voluntarily returned to the scene with the state trooper.

Harvey Baker, a pedestrian, and David Lutcher, driving his automobile behind the van, had also witnessed the accident. Baker saw and heard the impact and took the van’s license number. Lutcher, who had his radio on and his windows up, saw the collision but heard nothing.

Gettysburg police cited Kauffman for a violation of 75 Pa.C.S. § 3743, which reads:

Accidents involving damage to attended vehicle or property-
(a) General rule. — The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.
(b) Penalty. — Any person violating this section is guilty of a summary offense, punishable by a fine of $300 or imprisonment for not more than 90 days, or both.

Kauffman was found guilty of the offense at a hearing before a district justice, and at a trial de novo before President Judge Oscar F. Spicer of the Adams County Court of Common Pleas. Kauffman was sentenced to pay a fine of $300 and court costs, and he appealed. President Judge Spicer filed an opinion pursuant to Pa.R.A.P. 1925(c), reported at 21 Adams L.J. 154 (1980).

On appeal, we vacated sentence and remanded for filing of post-verdict motions nunc pro tunc. Commonwealth v. Kauffman, 298 Pa.Super. 375, 444 A.2d 1222 (1982).

After an evidentiary hearing, President Judge Spicer reimposed the original sentence on August 9, 1982.

Kauffman again appeals, contending that the trial court applied an erroneous standard of law to find him guilty. The court ruled that the evidence was sufficient to prove the offense where it showed that Kauffman was negligently unaware of having been involved in the accident. Kauffman, conceding the propriety of the trial court’s findings, argues that the statute requires actual knowledge on the part of the defendant that he has been in an accident.

The statute in question, 75 Pa.C.S. § 3743, was enacted as part of the Vehicle Code of 1976, P.L. 162, No. 81 (effective July 1, 1977), and derives from section 10-103 of the Uniform Vehicle Code and Model Traffic Ordinance (1968 version). On its face section 3743 prescribes no particular mental state. And although the issue of lack of knowledge has been raised before under the section, until this case our courts had not decided whether knowledge or any other culpable mental state is an element of the offense. See Commonwealth, Department of Transportation, Bureau of Traffic Safety v. Schmidt, 57 Pa.Cmwlth. 318, 426 A.2d 1222 (1981); Commonwealth, Department of Transportation, Bureau of Traffic Safety v. Adams, 53 Pa.Cmwlth. 636, 419 A.2d 233 (1980); Commonwealth v. Constabile, 21 Pa.D. & C.3d 361 (C.P. Fayette Co.1981).

However, courts in other states have interpreted similar hit and run statutes, many of them derived from the Uniform Vehicle Code, that are silent as to mental culpability. See State v. Feintuch, 150 NJ.Super. 414, 375 A.2d 1223 (App.Div.1977) (at time of decision thirty-four states had adopted hit and run statutes in substantial conformity with the Code). We should properly consider these interpretations in deciding the question before us. See 1 Pa.C.S. § 1927.

A review of other jurisdictions with statutes like ours lends substantial support to appellant’s argument. A strong majority holds that a driver must have subjective, conscious knowledge of the accident to be guilty of hit and run. The major division appears to be over the state’s burden to prove driver awareness of the injury or damage he has caused. See generally Annot., 23 A.L.R.3d 497, § 3 (1969 & Supp.1983); 7A Am.Jur.2d, Automobiles and Highway Traffic § 290 (1980 & Supp.1983).

At one extreme of the spectrum is the holding that a driver is not obliged to stop at the scene of an accident involving death or personal injury unless he is actually, consciously aware both that he has been in a collision and that death or injury has resulted. State v. Fearing, 304 N.C. 471, 284 S.E.2d 487 (1981) (plurality opinion). Accord, State v. Etchison, 188 Neb. 134, 195 N.W.2d 498 (1972); State v. Snell, 177 Neb. 396, 128 N.W.2d 823 (1964); see also State v. Parish, 79 Idaho 75, 310 P.2d 1082 (1957). Cf. 75 Pa.C.S. § 3742 (accidents involving death or personal injury).

A more widespread view finds expression in People v. Holford, 63 Cal.2d 74, 403 P.2d 423, 45 Cal.Rptr. 167 (1965), decided under section 20001 of the California Vehicle Code, making it a felony for a driver to fail to stop a vehicle “involved in an accident resulting in injury”:

[Pjrevious cases have said that knowledge of injury is an essential element of the crime proscribed by that section. Usually, however, such knowledge must be derived from the surrounding facts and circumstances of the accident. Yet the driver who leaves the scene of the accident seldom possesses actual knowledge of injury; by leaving the scene he forecloses any opportunity to acquire such actual knowledge. Hence a requirement of actual knowledge of injury would realistically render the statute useless. We therefore believe that criminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person.

63 Cal.2d at 79, 403 P.2d at 427, 45 Cal.Rptr. at 170-71 (citations omitted). Accord, People v. Ryan, 116 Cal.App.3d 168, 171 Cal.Rptr. 854 (1981). This interpretation, requiring subjective knowledge of the collision while holding the driver to a stricter reasonable man standard as to the fact or extent of injury, appears to meet with approval in the following cases: Touchstone v. State, 42 Ala.App. 141, 155 So.2d 349 (1963); Kimoktoak v. State, 584 P.2d 25 (Alaska 1978); State v. Blevins, 128 Ariz. 64, 623 P.2d 853 (Ariz.App.1981); State v. Porras, 125 Ariz. 490, 610 P.2d 1051 (Ariz.App.1980); State v. Carpenter, 334 N.W.2d 137 (Iowa 1983); State v. Miller, 308 N.W.2d 4 (Iowa 1981); State v. Wall, 206 Kan. 760, 482 P.2d 41 (1971); Herchen bach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328 (1946); State v. Sidway, 139 Vt. 480, 431 A.2d 1237 (1981).

Some courts hold that subjective knowledge of the impact alone is sufficient to require the driver to stop and investigate, apparently regardless whether a reasonable person might have thought no injury or damage was involved. People v. Nunn, 77 Ill.2d 243, 32 Ill.Dec. 914, 396 N.E.2d 27 (1979); State v. Feintuch, supra; State v. Minkel, 89 S.D. 144, 230 N.W.2d 233 (1975); Brown v. State, 600 S.W.2d 834 (Tex.Cr.App.1980); Williams v. State, 600 S.W.2d 832 (Tex.Cr.App.1980); Goss v. State, 582 S.W.2d 782 (Tex.Cr.App.1979); State v. Martin, 73 Wash.2d 616, 440 P.2d 429 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 855, 21 L.Ed.2d 773 (1969); State v. Vela, 33 Wash.App. 599, 656 P.2d 536 (1983).

In one case, the West Virginia Supreme Court appears to allow that a driver may be found guilty of hit and run even without any knowledge that he had been in an accident. In State v. Masters, 106 W.Va. 46, 144 S.E. 718 (1928), the court held that an indictment charging hit and run need not allege knowledge, since the applicable hit and run statute did not make knowledge a part of the offense. The court said:

To hold otherwise would be to defeat the very object of the statute, namely, the protection of the person and property of the traveling public from motorists who seek to dodge all responsibility in cases of accident on the highway to which they are parties. In most cases it would be impossible for the state to prove scienter beyond a reasonable doubt, while the accident itself might properly be proven.

Id. at 48, 144 S.E. at 718. See also Brumfield v. Wofford, 143 W.Va. 332, 102 S.E.2d 103 (1958).

It is unclear whether the Masters court was suggesting a reduced level of mental culpability for hit and run, such as reckless or negligent unawareness of the accident, or whether it was dispensing with mental culpability altogether and declaring an absolute liability offense whenever an accident occurred and a driver did not stop.

The view that a driver could ever be found guilty if he did not actually, subjectively know of the accident was roundly criticized in Kimoktoak v. State, supra:

We find error in the court’s instructing the jury that it could find knowledge of injury “where the circumstances were such that they would lead a reasonably prudent person to assume that an accident resulting in injury” must have occurred. It is not the reasonable person who is on trial but the defendant and it is the defendant’s knowledge which must be proved and not that of a hypothetical reasonable person. The standard we have enunciated does speak in terms of reasonableness in that the evidence must at least show that the accused knew that the accident was of the sort that one would “reasonably anticipate” would cause personal injury. However, it must be shown that the defendant knew of the nature of the accident before the jury can then determine whether such knowledge would reasonably lead one to conclude that injury had occurred.

584 P.2d at 32. The court also based its criticism of a “reasonable person” standard on the fact that the hit and run statutes impose positive duties oh the defendant to stop, give information, and render aid. The court found it illogical to impose positive duties on a person who is not consciously aware of the facts giving rise to those duties. Accord, State v. Miller, supra; State v. Snell, supra; see Goss v. State, supra; and compare State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467 (1949) (under hit and run statute with “knowing” requirement, defendant must have actual knowledge of injury, more than mere constructive knowledge or negligent failure to know) with City of North Olmsted v. Gallagher, 2 Ohio App.3d 414, 442 N.E.2d 470 (1981) (under statute with “knowing” requirement, necessary elements include knowledge of accident and awareness that personal injury is probable consequence of accident) 0but see concurring opinion by Day, P.J.). See also People v. D’Angelo, 72 A.D.2d 607, 421 N.Y.S.2d 228 (1979) (statute requiring knowledge); Cuyahoga Falls v. Wuchter, 31 Ohio App.2d 71, 286 N.E.2d 322 (1972).

Conversely, other cases support the position that it is not entirely unreasonable to hold a driver liable for failure to stop not only where he positively knows he has been in an accident, but also where the circumstances would indicate to a reasonable person that he had been in an accident. For example, in State v. Minkel, supra, the South Dakota Supreme Court, while adhering to a knowledge standard, stated that any collision serious enough to cause a death may in itself sufficiently prove knowledge on the driver’s part, absent extraordinary circumstances. Similarly, the court in State v. Feintuch, supra, stated that proof of the impact of a collision alone might raise an inference of knowledge sufficient to withstand a judgment of acquittal. And the Supreme Court of Rhode Island, interpreting a statute with an explicit knowledge requirement, said:

Under this type of statute, the requisite scienter is not limited to the actual knowledge of the driver. A violation of the statute also occurs in cases in which the evidence indicates that the driver reasonably should have known that he was involved in an accident resulting in injury or death.

State v. Szarek, 433 A.2d 193, 197 n. 5 (R.I.1981). See also People v. Nunn, 65 Ill.App.3d 981, 22 Ill.Dec. 607, 382 N.E.2d 1305 (1978), aff'd in People v. Nunn, supra.

The standard enunciated by the Szarek court — that a driver who leaves the scene of an accident will be held accountable if he knew or reasonably should have known of his involvement in the accident — is in effect the same standard used by the trial court in deciding the case now before us. The court found that Kauffman’s alleged lack of knowledge of the collision rose to the level of mental culpability described in 18 Pa.C.S. § 302(b)(4):

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

In the language of the statute, the “material element” of the offense the risk of which Kauffman negligently and unreasonably in the circumstances failed to perceive, was the fact of collision with the Smith auto.

Kauffman argues, however, that the trial court’s application of the culpability standard of section 302(b)(4) to a case of hit and run is precluded by settled Pennsylvania authority.

Under prior Pennsylvania hit and run statutes that similarly contained no knowledge requirement, our appellate courts said that knowledge of the accident or of the consequent damage or injury was an element of the offense. Hunt v. Commonwealth, Department of Transportation, Bureau of Traffic Safety, 15 Pa.Cmwlth. 505, 327 A.2d 392 (1974); Commonwealth v. Buckley, 197 Pa.Super. 266, 177 A.2d 107 (1962) (Vehicle Code of April 29, 1959, P.L. 58, § 1027, 75 P.S. § 1027); Commonwealth v. Adams, 146 Pa.Super. 601, 23 A.2d 59 (1942) (dictum); Commonwealth v. Hyman, 117 Pa.Super. 585, 178 A. 510 (1935) (Act of May 1, 1929, P.L. 905, § 1025, as amended); Commonwealth v. Zeitler, 79 Pa.Super. 81 (1922) (dictum) (Act of June 20, 1919, P.L. 675, § 23).

In Hunt the Commonwealth Court stated that “scienter” was a necessary element of leaving the scene of an accident involving property damage. However, the defendant in Hunt had admitted to police that he knew when he left the scene of the accident that he had caused property damage. The defendants in Buckley, Adams, Hyman, and Zeitler had each stopped to investigate at the scene of the personal injury accident in which he was involved. Each of these defendants, then, had some conscious awareness that there had been an accident, although he may not have known the extent of the injury or damage involved.

In none of these cases, therefore, did the court have occasion to distinguish between actual knowledge and knowledge reasonably chargeable to the defendant by virtue of the circumstances of the accident. Insofar as there was some degree of actual knowledge in each of these cases, we do not believe they can be read to rule out a conviction for leaving the scene of an accident which the defendant reasonably should know he has been involved in. Indeed, some of our lower courts have interpreted these opinions as not necessarily requiring actual, positive knowledge on the part of the defendant. Commonwealth v. English, 53 Pa.D. & C.2d 668 (C.P. Warren Co.1971) (intoxication preventing awareness); Commonwealth v. Brougher, 26 Somerset Co. 169 (1970) (know or have reason to know of vehicle coming into contact with other property); Commonwealth v. Woodward, 7 Pa.D. & C. 775 (Q.S. Montgomery Co.1926) (knows or should know); Commonwealth v. Ebersole, 2 Pa.D. & C. 782, 25 Dauph.Co. 461 (1922). Cf. Commonwealth v. Campbell, 40 Northumberland Leg.J. 192 (1968); Glassow License, 37 Pa.D. & C.2d 61 (C.P. Bucks Co.1965); Commonwealth v. Wolf, 75 York Leg.Rec. 195 (1962); Commonwealth v. Appell, 69 York Leg.Rec. 25 (1955).

It is also important to note that under our vehicular homicide act, 75 Pa.C.S. § 3732, the Supreme Court has upheld a “knew or should have known” standard of mental culpability. Section 3732 makes it a first-degree misdemeanor to unintentionally cause death while engaged in conduct constituting a motor vehicle or traffic violation. Although the statute is silent as to mens rea, the Court has held that the element is satisfied where the defendant “knew or should have known” that his conduct violated the Vehicle Code and that death was a “probable consequence” of that conduct. Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980); accord, Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983); Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980).

Leaving the scene of an accident involving damage to attended property is declared by 75 Pa.C.S. § 3743(b) to be a summary offense punishable by no more than a $300 fine and ninety days in prison. Cf, e.g., Vehicle Code of 1959, § 1027(a) (misdemeanor punishable by up to three years in prison). The culpability requirements of section 302 of the Crimes Code are applicable to summary offenses only if “the requirement involved is included in the definition of the offense or the court determines that its application is consistent with effective enforcement of the law defining the offense____” 18 Pa.C.S. § 305(a)(1). The learned president judge of Adams County determined that it was consistent with effective enforcement of the hit and run law to hold liable the operator of a motor vehicle who failed to stop at the scene of an accident because he unreasonably was not aware he had been in it. Of course, under this construction of the statute a driver who does not know of his involvement in an accident cannot be convicted of leaving the scene unless his lack of knowledge is unreasonable in the circumstances. We agree that this is the proper construction, and hold that the duty to stop under section 3743 arises whenever a driver knows, or in the exercise of reasonable care should know, that his vehicle has been involved in an accident. To hold otherwise would advise drivers to remain oblivious, howsoever unreasonably, to the effects of their driving on fellow motorists. The present case, in which the driver of a large truck rounded a corner too sharply and struck a stationary car, yet failed to respond to the impact or the noise of the blowing horn, illustrates the point.

Affirmed.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur. Common sense and justice alike dictate that a person cannot be held criminally responsible for leaving the scene of an accident when such person has no knowledge that a collision has occurred. However, absolute, positive knowledge of the accident is not essential. It is enough that the circumstances are such that knowledge on the part of the driver can reasonably be inferred. A mere denial of knowledge is not a defense. If the collision occurred under circumstances that ordinarily cause a reasonable person to believe he or she has been involved in a collision, the law imposes a duty to stop and investigate. See: Fisher, Vehicle Traffic Law, rev. ed. 1974, p. 190.

Although it must be shown that the driver knew or should have known that he or she was involved in an accident, guilt or innocence does not depend upon knowledge of injury or damage. It is enough that the driver have knowledge that he or she was involved in an accident.

      . This extreme view was opposed by three justices of the North Carolina Supreme Court, who believed that knowledge of the collision alone triggered the duty to stop. Two justices concurred in the result on grounds of stare decisis, while urging the legislature to adopt the dissenters’ view.

      . The court noted, however, that under section 20002, which like our section 3743 dealt with accidents involving only property damage, neither knowledge of injury nor knowledge of the nature of the accident is required for a conviction. Id. n. 3.


author: CERCONE, President Judge:

text:
    470 A.2d 640
    Mary ACKERMAN, Appellant, v. PORT AUTHORITY OF ALLEGHENY COUNTY.
    Superior Court of Pennsylvania.
    Argued April 28, 1982.
    Filed Jan. 6, 1984.

      Georgene Siroky, Pittsburgh, for appellant.
    Christopher M. Fleming, Pittsburgh, for appellee.
    Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.
   CERCONE, President Judge:

Appellant, Mary Ackerman, takes this appeal from the order and judgment of the lower court denying appellant’s petition to make absolute a Rule to Show Cause why appellee, Port Authority of Allegheny County, should not open a default judgment, taken on April 4, 1981. In this appeal, appellant makes two arguments: (1) Whether the court erred in its determination that the parties’ agreed-upon extention to file an answer was clearly documented; and (2) Whether the court disregarded relevant, appellate case law. The gist of both of these arguments is that the lower court erred in finding that appellant did not reasonably explain her default. We find appellant’s arguments to have merit, and we reverse.

This action had its inception on February 20, 1981, when appellee-plaintiff filed a complaint in trespass and assumpsit against appellant-defendant. On March 11, 1981, the twenty-day time period in which to file an answer expired and the next day, March 12, 1981, appellee mailed appellant notice of intent to take a default judgment within ten days. On March 18, 1981, appellant sought legal advice from present counsel, attorney Georgene Siroky. It was on this date that attorney Siroky learned of appellant’s receipt of the ten day Important Notice and of possible default. Appellant did not have a copy of the complaint with her, explaining that she lost it, whereupon attorney Siroky telephoned counsel for appellee-plaintiff and requested a copy of the complaint and an extension. Appellee’s counsel agreed to both requests, and appellant’s counsel that same day sent a letter to appellee’s counsel confirming the extension. On March 25, 1981, appellant’s counsel received a copy of the complaint and a copy of the letter she had sent appellee’s counsel, on which appellee’s counsel wrote that the extension was to run until Monday, April 13, 1981. Upon receipt of this letter, counsel for appellant inadvertently recorded the deadline on her calendar as Monday, April 20, 1981. On April 14, 1981, appellee’s counsel, having heard nothing further from appellant, entered the herewithin default judgment. Thereafter, on April 20, 1981, appellant’s counsel learned of the default judgment when filing her answer to the complaint. Accordingly, on May 1, 1981, appellant filed the instant motion to open default judgment. After hearing arguments on the matter, the court denied appellant’s petition, hence, this appeal.

It is a well-settled rule that to open a default judgment in an assumpsit action a petitioner must show that the petition was promptly filed, the petitioner has a legitimate explanation for the default, and there is an assertion of a meritorious defense to the complaint. Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Superior Ct. 331, 446 A.2d 641 (1982). In trespass actions, a meritorious defense need not be demonstrated if the equities are otherwise clear. Hutchings v. Trent, 304 Pa.Superior Ct. 376, 450 A.2d 729 (1982). Since the instant action was filed in both assumpsit and trespass, all three factors will be examined.

Appellant first argues that the Court erred in concluding that the agreed upon extension was clearly documented. In this argument, appellant for the first time contends that there was a misunderstanding between the parties regarding the length of the extension. It is appellant’s present assertion that counsel for appellant and counsel for appellee orally agreed by telephone to an extension of twenty business days from the date that appellant’s counsel received a new copy of the complaint. Appellant asserts that the copy of the complaint was not received until March 25, 1981, and that twenty business days from that date would mean the extension ran until April 21, 1981.

We find that appellant has waived this argument by failure to first raise it in. the court below. Appellant’s petition to open default judgment contains no allegation of a misunderstanding between the attorneys for the parties, only a claim that appellant-counsel erroneously listed the expiration date of the extension on her calendar. We therefore find this part of appellant’s argument to be waived. Wenzel v. Morris Distributing Company, 439 Pa. 364, 266 A.2d 662 (1970).

However, appellant argues that case law holds that attorney oversight is a permissible grounds for opening a judgment. On this issue the Supreme Court has said:

By the stipulation of facts submitted to the trial court and by his statements at the hearing, [counsel] admitted a less than careful and prudent concern for his client’s affairs. Any person entrusting a matter to an attorney in this Commonwealth should be able to believe that the matter will be competently and diligently handled. As we stated when faced with a similar situation in Stephens v. Bartholomew, 422 Pa. 311, 312-313, 220 A.2d 617, 618 (1966), however, it would be “a shame to impose a large liability upon [appellant] because of the inexcusable neglect of his attorney, especially when [appellee] will not be prejudiced if he has a meritorious claim.”
“Errors of counsel ..., which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment.” Johnson v. Yellow Cab Co., 226 Pa.Super. 270, 272, 307 A.2d 423, 424 (1973) (new counsel incorrectly assumed that responsive pleading had been filed); Stephens v. Bartholomew, 422 Pa. 311, 220 A.2d 617 (counsel failed to read complaint in time to file answer due to other business commitments); Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971) (insuranee carrier lost moving party’s court papers); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970) (insurance claims manager erroneously assumed that there was time remaining in which to respond to complaint).
Commonwealth, Dept. of Transportation v. Nemeth, 497 Pa. 580, 442 A.2d 689, 691 (1982) (emphasis added).

Cases which have rejected the excuse of attorney mistake are generally cases in which the attorney continued to delay filing an answer despite numerous extensions and requests by opposing counsel, Kennedy v. Black, 492 Pa. 397, 424 A.2d 1250 (1981), or where counsel delayed filing an answer for an unduly long time, Wallingford-Swarthmore School District v. Echternach, 68 Pa. Commonwealth 152, 448 A.2d 685 (1982) (delay of two and one-half years), or where counsel made a deliberate decision not to defend Keystone Boiler v. Combustion & Energy Corp., 294 Pa.Superior Ct. 145, 439 A.2d 792 (1982). None of these situations are like appellant’s case, where the delay caused by appellant was brief and where there was no attempt by appellant’s counsel to deliberately stall the proceeds. Instead, it appears that the case at bar is one of “oversight rather than a deliberate decision not to defend.” Commonwealth, Dept. of Transportation v. Nemeth, supra, 497 Pa. at 584, 442 A.2d at 691.

We further conclude that appellant has made out the remaining two factors in the requirements for opening a judgment. Upon learning of the default judgment, counsel for appellant immediately telephoned counsel for appellee and asked if he would voluntarily open judgment, to which counsel replied that he was personally agreeable but he needed his client’s consent. Two days later, appellee-counsel verbally informed appellant-counsel that the former’s client would not consent to voluntarily opening judgment, whereupon appellant-counsel filed the herewithin petition on May 1, 1981, eleven days after counsel learned of the default. Based on these facts, we find that the petition to open was timely filed.

Similarly, we find that appellant has alleged a meritorious defense. The case in chief as asserted in the complaint centered around an automobile accident between a bus, owned by appellee, and an automobile in which appellant was a passenger. It was claimed in the complaint that despite appellant’s previous assertions to the contrary, appellant was the owner of the automobile and carried insurance for that vehicle. Thus, it was claimed that appellant wrongly collected insurance benefits from appellee’s insurer. Appellant, in her answer and her petition to open, denies being the owner of the vehicle in question and denies holding a policy of insurance on the vehicle. Appellant’s assertions, if proved, would be a meritorious defense to the lawsuit, and we therefore find that this third part of the requirements for opening judgment has been satisfied.

Accordingly, we reverse the order and judgment of the court below and direct that default judgment, entered April 14, 1981, be opened.

       Both of these issues raise many of the same points and we therefore will address them jointly.

        See also, Toplovich v. Spitman, 239 Pa.Super. 327, 330, 361 A.2d 425, 426 (1976) ("Appellant’s position should not be prejudiced by attorney carelessness to observe professional standards.”); Campbell v. Heilman Homes, Inc., 233 Pa.Super. 366, 335 A.2d 371 (1975) (defending party's employee failed to forward complaint to main office); Samuel Jacobs Distributors Inc. v. Conditioned Air, Inc., 223 Pa.Super. 466, 301 A.2d 907 (1973) (attorney mistakenly concluded that client had not been properly served).


author: HESTER, Judge:

text:
    470 A.2d 970
    Beverly P. LOWENSCHUSS, v. Fred LOWENSCHUSS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1983.
    Filed Dec. 23, 1983.
    Reargument Denied Feb. 22, 1984.
    Petition for Allowance of Appeal Denied June 7, 1984.

      Jack M. Bernard, Philadelphia, for appellant.
    Albert Momjian, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and HESTER, JJ.
   HESTER, Judge:

On September 28, 1981, appellee, Beverly P. Lowenschuss, filed a complaint in divorce in Montgomery County, Pennsylvania, requesting a divorce from appellant, Fred Lowenschuss, under § 201(a)(6), § 201(c) and § 201(d), alternatively, of the Pennsylvania Divorce Code. Additionally, appellee requested equitable distribution of the marital property, child support, child custody, alimony, alimony pendente lite, and counsel fees, costs and expenses.

Appellee’s claims for child support and alimony pendente lite came before the Domestic Relations Office of Montgomery County on January 8, 1982. At that time the parties appeared before a hearing officer for a non-record conference. In his recommendation, the hearing officer noted appellant’s refusal to disclose information concerning his assets and earnings. Appellee alleged monthly expenses of $7,037.00 per month for herself and three children and an earning capacity of $1,018.00 per month. In response to this information and appellant’s representation that he had sufficient resources to pay any amount ordered, the hearing officer recommended to the court that alimony pendente lite in the amount of $1,650.00 per month and child support in the amount of $4,367.00 be ordered. The court did indeed enter an order upon the recommendation on the same day, January 8, 1982. Appellant promptly filed exceptions from that recommendation and requested a de novo hearing before a Montgomery County judge. The de novo hearing was scheduled for March 4, 1982.

Despite appellant’s demand for a de novo hearing, the January 8, 1982 order was not stayed. Consequently, appellant’s failure to pay support and alimony pendente lite in accordance with that order prompted appellee to exercise her rights pursuant to the local Montgomery County rules governing support actions. In doing so, appellee petitioned for an emergency hearing on alimony pendente lite and child support while the de novo hearing was pending. At the conclusion of this emergency hearing on February 4, 1982, a temporary child support order of $3,050.00 per month, or 75% of the hearing officer’s recommendation, and a temporary alimony pendente lite order of $800.00 per month, or 50% of the recommendation, were entered. Appellant filed a notice of appeal from this order on February 19, 1982; however, said appeal was quashed by this Court on June 3, 1982. No supersedeas was placed on the temporary order of February 4, 1982; consequently, appellant was obligated to make payments pending the appeal.

On May 19, 1982, appellee filed a petition for civil contempt due to appellant’s continuing failure to make payments in accordance with the temporary order of February 4, 1982. Appellant’s petition to vacate the order was denied and he was directed to pay $6,000.00 on arrearages or undergo imprisonment for 30 days. On June 3, 1982, appellant was ordered to jail for failure to comply with the order to pay $6,000.00 on arrearages; however, on that same date, the contempt order for payment of $6,000.00 on arrearages or 30 days imprisonment was stayed by this Court upon appellant’s payment of $2,500.00 to appellee. This Court also remanded for a hearing on appellant’s ability to pay alimony pendente lite and child support.

On July 8, 1982, appellee filed a second petition for civil contempt as a result of appellant’s persistence in refusing to pay alimony pendente lite and child support. Shortly thereafter, on July 28, 1982 and prior to the hearing on appellee’s second petition for civil contempt, appellant was ordered to pay the sum of $10,000.00 in preliminary counsel fees and $2,500.00 for preliminary costs and expenses. In lieu of the hearing for contempt, the parties agreed on October 22, 1982 that appellant would pay, within 5 days from that agreement date, a sum of $7,500.00 on arrearages under the temporary order of February.4, 1982. In return for said payment, appellee agreed not to prosecute outstanding petitions for contempt. Additionally, and pursuant to this Court’s order of June 3, 1982, the parties agreed to schedule a hearing on child support and alimony pendente lite before Judge Yohn of the Court of Common Pleas of Montgomery County for the end of November, 1982. Finally, the agreement reflected appellee’s stipulation that no further petition for civil contempt would be filed until the de novo hearing on alimony pendente lite and child support occurred.

Said hearing was not scheduled for November or December of 1982 as a result of Judge Yohn’s congested calendar. Neither party scheduled the hearing de novo following 1982, and appellant’s non-compliance with the temporary order for alimony pendente lite and child support continued. As a result, appellee filed a third petition for civil contempt on March 3, 1983. This petition included allegations not only of appellant’s failure to pay the temporary alimony pendente lite and child support order, but also for his failure to pay counsel fees, costs and expenses as set forth in the July 28, 1982 order. On April 13, 1983, the lower court ordered prompt payment of $7,500.00 for arrearages on these two orders and instructed both parties to consult the Court Administrator with respect to scheduling a de novo hearing on alimony pendente lite and child support.

Finally, on August 2, 1983, after much delay, a lower court proceeding was conducted for the purposes of determining appellant’s ability to pay and whether or not he should have been held in contempt. In finding appellant capable of making payments in the amounts ordered, the lower court deemed him to have willfully disobeyed the orders of February 4, 1982 and July 28, 1982. Appellant was ordered to pay $52,912.19, plus interest, by August 19, 1983 to purge himself of contempt. Appellant filed this appeal from the order of August 2, 1983.

Appellant first argues that the contempt proceeding was not conducted in conformity with Pa.R.C.P. No. 1910.21. Prior to the promulgation of Pa.R.C.P. No. 1910.21, contempt proceedings for the alleged failure to make support payments followed a five-step procedure: “(1) a rule to show cause why an attachment should not issue, (2) and answer and hearing, (3) a rule absolute (arrest), (4) a hearing on the contempt citation, (5) an adjudication of contempt.” Crislip v. Harshman, 243 Pa.Super. 349, 352, 365 A.2d 1260, 1261 (1976); Simmons v. Simmons, 232 Pa.Super. 365, 335 A.2d 764 (1975). Rule 1910.21 “streamlines” this five-step procedure. Under the simplified procedure now in effect, a petition for civil contempt, with a statutorily-prescribed notice, must be filed and served on the alleged contemnor. Furthermore, a hearing shall not occur prior to the expiration of a seven-day period commencing with the service of the petition. The providing of a petition, notice and hearing is sufficient to protect constitutional rights; the earlier five-step procedure is no longer a prerequisite to an adjudication of contempt. Explanatory note on rules governing actions to enforce a duty of support, Civil Procedural Rules Committee, 42 Pa.C.S.A. Rule 1910.1 et seq., pocket part, p. 337.

According to appellant, the lower court proceeding failed to satisfy even the “streamlined” procedure of Rule 1910.-21. Particularly violative in appellant’s mind, was the personal service of the petition on him at the hearing; accordingly, the mandatory seven days between service and hearing did not run. Moreover, the prescribed notice set forth in Pa.R.C.P. No. 1910.21(a) was omitted in appellee’s petition.

Were we to isolate that portion of these proceedings which entails the service of one petition for civil contempt and the hearing thereon, both of which did indeed occur on August 2, 1983, Rule 1910.21 appears to have been violated. However, to do so would ignore the fact that appellant had been apprised for many weeks of a pending contempt proceeding and was awarded sufficient preparation time. As alluded to above, several petitions for civil contempt were filed and served upon appellant prior to the hearing on August 2, 1983. Appellee filed petitions for civil contempt on May 19, 1982 and July 8, 1982 for appellant’s failure to pay on the alimony pendente lite and child support temporary order of February 4, 1982. Each of these petitions resulted in orders directing appellant to make certain payments on arrearages. In fact, on one occasion, appellant was ordered incarcerated. A third petition for civil contempt was filed on March 3, 1983 as a result of appellant’s failure to pay child support, alimony pendente lite and counsel fees, costs and expenses. Again, this third petition for civil contempt resulted in appellant being the obligor for the payment of arrearages.

Appellant developed a pattern of paying arrearages only to avoid incarceration. He occasionally made payments of $1,000.00 per month, however, the court-ordered amount was four-fold these actual payments. Additionally, there is some confusion as to whether appellant actually made full payment on the arrearages as ordered on several occasions by the court.

Appellant is correct insofar as he did not receive the contempt petition at least seven days in advance of the hearing; nevertheless, he had ample opportunity to prepare. His position was that he did not have the income to pay the amounts ordered. Furthermore, he averred that appellee had enough income to support herself. These arguments are applicable to ability to pay as well as contemptuous conduct, and appellant does not claim that notice was insufficient for a hearing on ability to pay.

The hearing on August 2, 1983 was scheduled originally for determining only appellant’s ability to pay; however, the court’s decision to conduct a contempt hearing also was not reversible error. Appellant was informed by appellee and the court, through petitions for civil contempt and orders thereon, that his behavior was non-conforming. He never denied his disregard of prior orders; instead, he merely questioned the propriety of the orders. The special circumstances of this case convince us that appellant was not denied sufficient preparation time for the contempt aspect of the August 2, 1983 hearing. Consequently, a failure to give a seven-day notice of the contempt issues was not error justifying reversal and remand. See Crislip v. Harshman, supra. For these same reasons, the omission of the statutorily-required notice was harmless. Appellant was thoroughly apprised of contempt proceedings; a notice designed to inform the respondent of the nature of the contempt proceedings commenced against him becomes superfluous under these circumstances. Its omission was harmless error. See Campbell v. Commonwealth, Dept. of Environmental Resources, 39 Pa.Cmwlth. 624, 396 A.2d 870 (1979).

Next, appellant argues that the lower court disregarded the order of this Court, dated June 3, 1982, which remanded for a hearing on his ability to pay alimony pendente lite and child support. Such disregard is allegedly displayed through the conducting of the contempt hearing on April 13, 1983 prior to the hearing ordered by this Court on appellant’s ability to pay.

We will not subscribe to this argument. This Court, in its order of June 3, 1982, did not reverse the temporary order for alimony pendente lite and child support. It reduced the amount which appellant was previously ordered to pay on arrearages; as a result, appellant was accorded an easier means to remove himself from jail. Furthermore, this Court recognized that a final hearing on alimony pendente lite and child support was necessary due to the temporary nature of the existing order. When that hearing took place depended upon the schedules of both the parties and Judge Yohn. Due to Judge Yohn’s congested calendar and the apparent dilatory practice of appellant, that hearing did not occur for fourteen months following the temporary order of February 4, 1982. What is important, however, is that the temporary order remained in effect during this fourteen-month hiatus. This Court’s remand did not affect appellant’s continuing obligation to comply with the temporary order. His non-compliance justified the contempt hearing, and the scheduling of that hearing did not disregard any order of this Court.

It is also appellant’s contention that the temporary alimony pendente lite and child support order was valid only until a hearing de novo could establish the proper payments. Appellant points out the temporary order was entered upon a hearing officer’s recommendation which followed a conference but not the taking of testimony. As a result, appellant is of the belief that an order based on little or no evidence should not be effective for fourteen months. Presumably, he contends that one cannot be in contempt of an order that must necessarily die through lack of prosecution.

The Court of Common Pleas of Montgomery County, Pennsylvania did not adopt the procedure of support actions provided by Pa.R.C.P. No. 1910.12; consequently, it was obligated to follow the procedure of Pa.R.C.P. No. 1910.11. In compliance with Rule 1910.11, the parties scheduled an office conference with the Montgomery County hearing officer on January 8, 1982. Appellee submitted her most recent tax return, pay stubs for the preceding six-months and an income and expense statement. Appellant submitted none of these statutorily-required items; nevertheless, he informed the officer that he was able to pay any support order entered. The parties did not reach an agreement on alimony pendente lite and child support; therefore, the hearing officer recommended to the court that appellant pay monthly amounts of $4,367.00 in child support and $1,651.00 in alimony pendente lite. The court entered an order upon this recommendation on January 8, 1982 and informed appellant of his right to file a written demand for a hearing de novo before the court. Appellant filed said demand and a hearing was scheduled for March 4, 1982.

Unless the court directs otherwise, a party’s demand for a hearing de novo does not stay the order. Pa.R.C.P. No. 1910.11(g). The lower court made no such direction here; consequently, appellant was obligated to pay on the January 8, 1982 order despite his request for a hearing de novo. He did not do so; therefore, appellee requested an emergency hearing for child support and alimony pendente lite pursuant to Montgomery County Rules of Civil Procedure 1920.93. A temporary order in the amount of 75% of the child support recommendation and 50% of the alimony pendente lite recommendation was entered on February 4, 1982. The original de novo hearing date, set for March 4, 1982, was continued due to appellant’s appeal from the February 4th temporary order. Not until June 3, 1982, when the appeal was quashed, was the lower court free to schedule the de novo hearing. Thereafter, the parties litigated the counsel fees and expenses claims on June 28, 1982 and entered into an agreement in October, 1982 wherein they stipulated, inter alia, to schedule the hearing prior to year’s end before Judge Yohn.

We find no authority for the conducting of a de novo hearing within a certain period of time under Rule 1910.11. Moreover, we are unwilling at this time to set a limitations period after which a temporary child support and alimony pendente lite order becomes inoperative. We do find, however, that where the party requesting a de novo hearing on support files an appeal from a temporary support order to the Superior Court, enters into an agreement to have a designated judge preside at such de novo hearing and does not pressure the court to schedule the hearing before another judge where said designated judge’s schedule is not accommodating, it is not acceptable for that party to assert that an unduly long period of time lapsed between the temporary order date and the de novo hearing. In other words, appellant was chiefly responsible for said delay; he can not now benefit from his strategy of delaying and confounding proceedings.

Appellant next contends that Local Rule 1920.93 is mooted by Pa.R.C.P. Nos. 1910.10 and 1910.11; therefore, the temporary alimony pendente lite and child support order was invalid. Although it is difficult to detect the exact tenor of appellant’s argument here, he apparently is of the opinion that Montgomery County’s provision for emergency hearings of temporary orders for alimony pendente lite and child support are unnecessary due to a de novo hearing provided by Supreme Court Rule 1910.11(f). Montgomery County Local Rule of Civil Procedure 1920.93 provides as follows:

“If, after the domestic relations office conference, the hearing officer certified the issue of child support and/or alimony pendente lite for hearing before the City Master, and if the court within 5 days of the conference has not entered a temporary order pending the hearing, either party may request a conference before a judge who, after conference, may enter a temporary order.”

Local courts are empowered to promulgate local rules of procedure “as the interest of justice or the business of the court may require.” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 323. Local rules are invalid only to the extent that they conflict with Pennsylvania Supreme Court rules. Acri v. Wintermeyer, 285 Pa.Super. 486, 428 A.2d 150 (1981).

Local Rule 1920.93 provides any party with an opportunity to acquire a hearing for a temporary order on alimony pendente lite and child support where a de novo hearing is pending and the court did not enter a temporary order within five days of the conference recommendation. Rule 1910.11(g) provides for stays of orders where a de novo hearing is requested but does not provide for stays of the hearing officer’s recommendations. As a result, we see no conflict between local rule 1920.93 and Supreme Court rule 1910.11. Here, an order was entered on the hearing officer’s recommendation. That order was not stayed pending the de novo hearing due to the fact that the court did not direct otherwise. It was not necessary for appellee to seek a temporary order; she could have filed a contempt petition based upon the January 8, 1982 order alone. Appellant should not protest too vehemently here. He has been adjudicated in contempt of an order that was 75% and 50% respectively of the amounts for alimony pendente lite and child support ordered upon the hearing officer’s recommendation. He actually gains a windfall here due to' the fact that the contempt order could just as easily been entered on the higher January 8, 1982 order, instead of the lower temporary order of February 4, 1982.

Finally, appellant complains that he was denied due process of law due to the fact that he was prevented by the lower court from presenting evidence at the August 2, 1983 hearing. Appellant was adjudicated in contempt of the orders of February 4, 1982 and January 28, 1982 following a determination of his ability to pay. There was evidence that appellant made a $2,000.00 payment in December, 1982 on a large pledge to the University of Pennsylvania; that he opened substantially-funded custodial accounts for his children in July, 1982; and that his pension fund contained proceeds in the amount of $3,000,000.00. Following the lower court’s finding of contempt, appellant attempted to demonstrate that the custodial accounts were funded with monies realized upon the exercise of stock options owned exclusively by his children.

Our perusal of the record convinces us that appellant had sufficient opportunities throughout the three and one-half hour proceeding to rebut the evidence presented on the children’s custodial accounts. There is no justification for his waiting until the court’s ruling to ask for additional time to present evidence on the origin of the funds in the custodial account. We are inclined to believe that appellant’s proffered evidence following the court’s ruling was merely a last-ditch attempt to salvage a losing position that he himself constructed through contemptuous behavior.

Order affirmed.

      . The de novo hearing was not conducted on March 4, 1982 due to appellate proceedings and other delays.

      . We will not attribute this delay to the behavior of appellee. After all, the request for said hearing de novo was made by appellant only and we place upon him the sole obligation of proceeding forward.


author: WIEAND, Judge:

text:
    470 A.2d 976
    COMMONWEALTH of Pennsylvania v. Edward NEWMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 5, 1983.
    Filed Jan. 6, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Following trial by jury, Edward Newman was acquitted on a charge of riot but convicted of recklessly endangering another person and disorderly conduct. Post-trial motions were denied, and Newman was sentenced to pay total fines of $2,000.00 and to serve consecutive periods of probation totalling three years. On direct appeal, Newman’s principal argument is that videotape evidence established incontrovertible physical facts and that, therefore, the trial court erred (1) when it denied a defense request for a directed verdict and (2) when it refused to instruct the jury that videotape evidence constituted proof of incontrovertible physical facts. He also contends that the trial court erred in refusing a requested instruction pertaining to his right of assembly. There is no merit in these contentions. For sentencing purposes, however, the conviction for disorderly conduct merged into the conviction for recklessly endangering another person. Therefore, we must remand for resentencing.

During the early evening hours of August 25, 1980, a demonstration and rally took place at 18th and Diamond Streets in the City of Philadelphia, the purpose being to protest the shooting of a young black male by an arresting policeman on the prior day. A pick-up truck arrived, equipped with loud speakers and amplifiers and carrying several persons who incited and led a march of 500 to 1000 persons to the police station on 17th Street. There, the crowd eventually became ugly. The police station and an approaching fire truck were pelted with rocks, bottles and bricks, and a general melee ensued. When police, equipped with riot gear, attempted to clear the intersection, they were also pelted with thrown missiles. Appellant was observed throwing a brick which struck a policeman in the chest. He was immediately placed under arrest.

At trial, two police officers testified that they had seen appellant, who was shirtless and wearing blue pants and a necklace, hurl a brick over their heads and into the ranks of policemen. Officer Robert Adelsburger testified that he observed appellant throw a brick from a point near the northeast corner of 17th and Montgomery Streets. When appellant turned to run, Adelsburger pursued him, placed him under arrest, and returned him to the district headquarters. Officer Henry Bruhl, called as a witness by the defense, testified that he, too, had observed appellant throw a brick from the northeast corner of the intersection. He said that the brick had struck Officer Richard O’Neill in the chest. He also said that he observed Adelsburger make the arrest.

Appellant produced videotaped, short clips which TV stations had used in news programs. He contended that this photographic replay depicted incontrovertibly (1) that appellant had not been arrested at the location testified to by the police officers and (2) that Officer Bruhl had not been where he said he was and could not have observed the occurrences to which he testified. This evidence, appellant argued, proved that the police witnesses had falsified their testimony or were mistaken and confirmed his contention that he was engaged solely in lawful activity.

The incontrovertible physical facts rule is a well established part of the law in Pennsylvania, having its principal application in tort cases. In Lamp v. Pennsylvania R.R., 305 Pa. 520, 158 A. 269 (1931), the Supreme Court said:

“It is now the established law of this State that where the testimony of a witness is contradicted by incontrovertible physical facts, the testimony of such witness cannot be accepted, it being either mistaken or false, and a verdict based on it will not be sustained: Grimes v. P. R. R. Co., 289 Pa. 320 [137 A. 451]; Hartig v. American Ice Co., 290 Pa. 21 [137 A. 867]; Folger v. Pittsburgh Rys. Co., 291 Pa. 205 [139 A. 858]; Miller v. P. R. R. Co., 299 Pa. 63 [149 A. 85]. ‘Courts are not required to believe that which is contrary to human experience and the laws of nature, or which they judicially know to be incredible’: Lessig v. Reading Transit & Light Co., [270 Pa. 299, 113 A. 381]; Seiwell v. Hines, Dir. Gen., 273 Pa. 259 [116 A. 919]; Maue v. Pittsburgh Rys. Co., 284 Pa. 599 [131 A. 475].”

Id. 305 Pa. at 525, 158 A. at 271. See also: Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 (1975); MacDonald v. Pennsylvania Railroad Co., 348 Pa. 558, 36 A.2d 492 (1944). However, the incontrovertible physical facts rule can be applied only where the facts are positive, clear, indisputable and certain. Long v. Pennsylvania Truck Lines, Inc., 335 Pa. 236, 240, 5 A.2d 224, 225-226 (1939); Algeo v. Pittsburgh Railways Co., 202 Pa.Super. 548, 553, 198 A.2d 415, 417 (1964). See also: Stacy v. Thrower Trucking, Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978). The rule is inapplicable when the facts depend upon estimates of distances. Streilein v. Vogel, 363 Pa. 379, 385, 69 A.2d 97, 100 (1949). Moreover, the rule does not confer infallibility upon photographic evidence. “A photograph is merely pictorial testimony. While it is properly assumed. that the lens of a camera will not lie, the reliability of the resulting product, insofar as evidence in a factual controversy is concerned, depends on many factors which have little or nothing to do with the fidelity of the mechanical process which transfers a physical object from tangible reality to an intangible image on paper. Many questions must be answered before a photograph may be accepted as incontrovertible.” Heimbach v. Peltz, 384 Pa. 308, 311-312, 121 A.2d 114, 116 (1956). See also: Krobot v. Ganzak, 194 Pa.Super. 49, 52, 166 A.2d 311, 312 (1960). A videotape recording, although capable of a more sequential reproduction than a still photograph, is nevertheless subject to the same uncertainties that render photographic evidence fallible.

The videotape offered as evidence in the instant case was not complete; it covered only a small portion of the events covered by the testimony of witnesses. Moreover, as several witnesses complained, the tape was not sufficiently clear and did not allow ready identification of the persons appearing thereon. Finally, even if the police officers were contradicted concerning their recollection of some of the details, it does not follow that the court or jury was required to reject all that they said. The jury could accept all, some or none of their testimony. Commonwealth v. Curry, 318 Pa.Super. 490, 495, 465 A.2d 660, 662 (1983); Commonwealth v. Owens, 315 Pa.Super. 400, 404, 462 A.2d 255, 257 (1983); Commonwealth v. Wilcox, 310 Pa.Super. 331, 335, 456 A.2d 637, 639 (1983). The credibility of the oral testimony was properly left to jury determination upon full and complete instructions by the trial court.

The doctrine of incontrovertible physical facts was not applicable to the instant case. Therefore, the trial court was not required to direct a verdict of acquittal for this reason. Moreover, because the rule was not applicable, the trial court was not required to charge the jury thereon. See: Middleton v. Glenn, 393 Pa. 360, 362, 143 A.2d 14, 16 (1958).

Appellant also complains that the trial court erred in refusing a requested jury instruction as follows:

The First Amendment of the United States Constitution and Article 1, Section 7 and 20 of the Pennsylvania Constitution protect the rights of persons to free speech and assembly____ The right of peaceable assembly to petition for redress of grievances is closely related to the right of free speech, and is equally fundamental. When the group activity (such as the demonstration in the case at bar) out of which the alleged offense develops can be described as involving elements of both legal and illegal purpose and conduct, and as being within the shadow of the First Amendment, the factual issues as to the alleged criminal conduct and intent must be judged strictissimi juris or with the greatest of care. This is necessary to avoid punishing one who participates in such an activity and is in sympathy with its legitimate aims, but does not intend to accomplish them by unlawful means. Each defendant is entitled to a careful distinction between responsibility for the lawful and constitutionally protected demonstration, and responsibility for the activity for which the law provides a penalty.

This language was derived from an opinion of the Court of Appeals of the Seventh Circuit in United States v. Dellinger, 472 F.2d 340 (7th Cir.1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). The issue in that case, however, was not the content of the trial court’s jury instructions but the sufficiency of the evidence to sustain the conviction.

In the instant case, the trial court refused the point as submitted by appellant’s counsel but, instead, charged the jury as follows:

The First Amendment of the United States Constitution and Article 1, Section 7 and 20 of the Pennsylvania Constitution protect the rights of persons to free speech and assembly. The right of peaceable assembly to petition for redress of grievances and the right of free speech are fundamental. Therefore, the factual issues as to the alleged criminal conduct and intent of the defendants must be judged with the greatest of care. This is necessary to avoid penalizing one who legitimately and lawfully exercises his First Amendment rights. Each defendant is entitled to a careful distinction between responsibility for the lawful and constitutionally protected demonstration and responsibility for the activity for which the law provides a penalty.

A “trial court is not required to accept the language of [a] point submitted by counsel but rather is free to select its own form of expression. The only issue is whether the area is adequately, accurately and clearly presented to the jury for [its] consideration.” Commonwealth v. McComb, 462 Pa. 504, 509, 341 A.2d 496, 498 (1975); Commonwealth v. Hayes, 314 Pa.Super. 112, 118-19, 460 A.2d 791, 794 (1983); Commonwealth v. Parks, 281 Pa.Super. 38, 421 A.2d 1135 (1980). Moreover, a charge must be read as a whole and will be found adequate if it correctly reflects the law and is sufficient to guide the jury in its deliberations. Commonwealth v. Stauffer, 309 Pa.Super. 176, 186, 454 A.2d 1140, 1146 (1982); Commonwealth v. Jones, 300 Pa.Super. 338, 346, 446 A.2d 644, 648 (1982); Commonwealth v. Peterson, 271 Pa.Super. 92, 97-98, 412 A.2d 590, 593 (1979). See also: Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). In charging a jury, it is the principal duty of the trial court to clarify the issues so that the jury may understand the questions to be resolved. Commonwealth v. Jones, supra.

The instructions to the jury in the instant case complied fully with these requirements. The court’s response to appellant’s specific request and the charge as a whole made it abundantly clear that the issues to be decided by the jury were whether appellant had thrown a brick and whether his conduct was such as to constitute the offenses of disorderly conduct and recklessly endangering another person. The court told the jury that appellant could not be convicted merely because he was present during the riot or because he was participating lawfully in a peaceful demonstration. These instructions were adequate and accurate. There was no error.

Finally, we must determine whether the trial court could properly impose separate sentences on the convictions for recklessly endangering and disorderly conduct. The Supreme Court has- held that only one penalty may be imposed after conviction where the crimes charged arise from the same transaction and differ only in degree. Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981); Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190 (1941). “[I]n merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.” Commonwealth v. Flynn, 314 Pa.Super. 162, 176, 460 A.2d 816, 823 (1983), quoting Commonwealth v. Crocker, 280 Pa.Super. 470, 475, 421 A.2d 818, 820-821 (1980). See also: Commonwealth v. Boettcher, 313 Pa.Super. 194, 204, 459 A.2d 806, 810 (1983). In deciding whether merger is required, a court is obliged to interpret the verdict not in the light-of theoretical possibilities but rather in the light of common sense. Commonwealth v. Buser, 277 Pa.Super. 451, 459, 419 A.2d 1233, 1237 (1980).

A common sense approach to the evidence in the instant case suggests overwhelmingly that it was the single act of throwing a brick which resulted in convictions for recklessly endangering and for engaging in disorderly conduct. The basis of the latter conviction was alleged to be appellant’s engaging in violent or tumultuous behavior. This occurred prior to appellant’s arrest when he allegedly threw a brick and not following arrest as the Commonwealth now argues. Not only the evidence but also the prosecutor’s closing jury argument permit no other interpretation of the jury’s verdict.

The trial court imposed separate sentences which included two, distinct fines and consecutive periods of probation. It is not clear that the court, if it had been required to impose a single sentence for the more serious offense of recklessly-endangering another person, would have imposed the same sentence for that crime. Under these circumstances we will remand for resentencing. See: Commonwealth v. Radogna, 317 Pa.Super. 586, 464 A.2d 478 (1983); Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979).

Judgment of sentence vacated, and case remanded for resentencing in accordance with this opinion. Jurisdiction is not retained.

SPAETH, J., concurs in the result.

      . 18 Pa.C.S. § 5501.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 5503.

      . Tapes not used for TV viewing had been destroyed prior to trial.

      . Appellant’s failure to argue merged offenses in the trial court did not waive this issue for appeal purposes. Commonwealth v. Franklin, 306 Pa.Super. 422, 430 n. 4, 452 A.2d 797, 801 n. 4 (1982).


author: CIRILLO, Judge:

text:
    470 A.2d 981
    Nanci Ann HOPKINSON v. John Hebden HOPKINSON, III, Appellant. Nanci Ann HOPKINSON v. John Hebden HOPKINSON, III, Appellant. Nanci Ann HOPKINSON v. John Hebden HOPKINSON, III. Appeal of ABINGTON OB/GYN, LIMITED PENSION PLAN.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1983.
    Filed Jan. 6, 1984.
    Petition for Allowance of Appeal Denied May 11, 1984.

      Frank L. Newburger, III, Philadelphia, for appellant (at Nos. 1501 & 1662) and for appellee (at No. 1786).
    Randal J. McDowell, Jenkintown, for appellant (at No. 1786).
    John H. Martin, III, Norristown, for Nanci Hopkinson, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge:

The parties in this action were married on June 22, 1957 and divorced on May 1, 1978. They adopted two children, John and Elizabeth, during the marriage, both of whom are minors. On February 28, 1978 the parties entered into a written agreement which, inter alia, provided that the husband pay to the wife an annual sum of $23,500.00, installments to be paid weekly, together with an amount equal to the federal, state and local income taxes owed by the wife. In addition, the agreement stipulated that the husband was to pay the wife $5000.00 per year, payable weekly, as support for each unemancipated child. Pursuant to the agreement, the wife had custody of both children. Subsequent to the divorce, however, John expressed a desire to reside with the husband. Consequently, the parties entered into an agreement on April 12, 1979 which ratified the earlier agreement, except for the change in John’s custody. Included in this second agreement was a provision that, notwithstanding the change in custody, the husband was still required to pay $5000.00 per annum to the wife for the support of their son John.

The wife filed a Complaint in Equity in the Court of Common Pleas of Montgomery County on June 5, 1981, alleging that the husband was in breach of his obligations under the property settlement agreement. On February 11, 1982 the parties appeared before the Honorable Horace A. Davenport and agreed to the entry of a consent decree. Judge Davenport’s decree, dated February 12, 1982, ordered the husband to pay the wife the sum of $21,541.91 forthwith and to comply thereafter in all respects with the agreement of February 28, 1978, as amended on April 12, 1979.

On August 13, 1982 the wife filed a petition for reduction of arrearages to judgment. The court entered an order on August 27, 1982 directing that judgment be entered against the husband in the amount of $12,642.18. This total represents arrearages due under the consent decree for the period of February 12, 1982 through August 20, 1982.

On October 20, 1982 the wife filed a petition seeking to hold the husband in contempt of court based on his willful violation of the consent decree. A hearing was held on November 23, 1982 before the Honorable Louis D. Stefan. At the hearing the wife established the claims of nonpayment set forth in her petition while the husband testified as to his inability to meet his obligations. At the conclusion of this hearing, the court decided that the husband had failed to make a reasonable attempt at complying with the consent decree and found him in contempt. By Order dated March 2, 1983, the husband was to pay $5000.00 to the wife within 30 days and the remaining arrearages within 120 days, and to comply with the terms of the consent decree in a timely fashion thereafter. The husband appealed this Order to the Superior Court. By an Order dated April 27, 1983, this Court quashed the appeal. A hearing was then held before Judge Stefan to determine the sanctions to be imposed by reason of the husband’s failure to comply with the Order of March 2, 1983. By Order of June 8, 1983 Judge Stefan committed the husband to the county prison each weekend, until such time as he purged himself of the contempt by paying the sum of $5000.00 to the wife. The husband appealed this Order to the Superior Court.

Meanwhile, in November, 1982 a Writ of Execution was served, inter alia, on Abington OB/GYN, Ltd. Pension Plan and Profit Sharing Plan and interrogatories addressed to the garnishee were propounded. Both the husband and the garnishee filed preliminary objections to the interrogatories, alleging that the Writ of Execution and the interrogatories were improperly served and that the pension fund is immune from attachment. These preliminary objections were dismissed by the Honorable Samuel W. Salus, II in an Order dated June 2, 1983. The husband and the garnishee appealed this Order to the Superior Court. All appeals were subsequently consolidated for disposition by this Court. See: Pa.R.A.P. 513; 42 Pa.C.S.A.

The first issue on appeal concerns the propriety of the lower court order holding the husband in contempt and the sanction of imprisonment on weekends until he purges himself of the contempt. The lower court relies on Section 501(f) of the Divorce Code as authority to imprison the husband. This section provides:

(f) Whenever the court shall approve an agreement for the payment of alimony voluntarily entered into between the parties, such agreement shall be deemed the order of the court and may be enforced as provided in section 503.

The lower court concluded that the consent decree, ordering the husband to comply with the terms of the property settlement agreement, constituted court approval under section 501(f), and thus, the agreement may be enforced pursuant to Section 503 of the Divorce Code. This section authorizes imprisonment for willful failure to comply with ¿ court-approved agreement for the payment of alimony. However, Section 103 of the code provides in pertinent part:

... The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act. This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.

The parties were divorced and the property settlement agreement was executed and amended before the Divorce Code became effective in July of 1980. Therefore, the court improperly based its actions on this statute.

We may affirm the lower court, though, if its decision can be sustained on any ground whatsoever, without regard to the reason the trial court relied upon. In re: Martorano, 464 Pa. 66, 346 A.2d 22 (1975); Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981); Sones v. Aetna Cas. & Sur. Co., 270 Pa.Super. 330, 411 A.2d 552 (1979).

The power to punish for contempt, including the power to inflict summary punishment, is a right inherent in the courts and is incidental to the grant of judicial power under the Constitution. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); Commonwealth v. Haefner, 470 Pa. 392, 368 A.2d 686 (1977). A court may exercise its civil contempt power to enforce compliance with its orders or decrees if its purpose is to compel performance and not to inflict punishment. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Petition of Specter, 439 Pa. 404, 268 A.2d 104 (1970); Commonwealth v. Feick, 294 Pa.Super. 110, 439 A.2d 774 (1982). The characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of civil contempt by complying with the court’s directive. In re Martorano, supra; Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). A consent decree, although negotiated by the parties, is a judicial act which is enforceable via the court’s contempt power. Usery v. Chef Italia, 540 F.Supp. 587 (E.D.Pa.1982); Delaware Valley Citizens’ Council v. Commonwealth of Penn sylvania, 533 F.Supp. 869 (E.D.Pa.1982), aff'd, 678 F.2d 470 (3rd Cir.1982).

It is clear that the husband’s flagrant and willful disregard of the lower court’s orders in this matter, by his inaction in fulfilling his duties of support, justify his adjudication of contempt. So too, his imprisonment on weekends, until he purges himself of contempt, is a proper sanction to be imposed by the lower court for this civil contempt. To hold otherwise would render the Court of Common Pleas powerless to effectively implement its directives while, at the same time, allow the husband to escape his obligations under a valid, counselled separation agreement.

The husband argues that he attempted, in good faith, to comply with the lower court orders, but due to his financial situation, he is unable to perform.

... [T]he justification for imprisonment in civil contempt ceases once it becomes apparent that the contemnor lacks the present ability to purge himself and thereby bring himself into compliance with the order; a court should not in effect convert civil proceedings into criminal ones by imposing terms for compliance which are apparently impossible for the contemnor to perform.

Muraco v. Pitulski, 470 Pa. 269, 273, 368 A.2d 624, 626 (1977); See also: Yurt v. Brumage, 289 Pa.Super. 88, 432 A.2d 1064 (1981); Biggan v. Foster Twp. Zoning Hearing Bd., 272 Pa.Super. 513, 416 A.2d 575 (1979).

The lower court, in an Opinion authored by Judge Stefan, found as follows:

The instant record supports the Court’s finding that the defendant has not made a good faith effort to comply with the consent decree. (Findings of Fact 5, 11/23/82). The defendant has failed to demonstrate financial inability to perform. By way of examples, the defendant has maintained a membership at a country club at a cost of $1800 per year (N.T. 95, 125, 11/23/82) and purchased season tickets for professional ice hockey games (N.T. 112, 125, 11/23/82).

(Lower Ct. Slip Op. at 4). See: Commonwealth ex rel. Novack v. Novack, 310 Pa.Super. 112, 456 A.2d 208 (1983).

We have reviewed the record in this matter and agree with the lower court’s findings. We have found nothing in the record occurring in June, 1981 which would have worsened the husband’s financial position and caused him to reduce his weekly child support and alimony obligations from $644.00 to $96.00. The husband voluntarily incurred a substantial debt when in June of 1979, after his divorce and well after he entered into the property settlement agreement, he entered into an agreement to purchase certain real estate, which amounted to indebtedness of $163,000.00. flowever, the husband assumed this debt knowing full well his support obligations under the property settlement agreement. There is no evidence that the husband has tried to meet his obligations, yet there is substantial evidence that he has the monetary capacity to do so in light of his lucrative medical practice. Moreover, the husband has not demonstrated a good faith effort to even comply with the consent decree to the extent he is able. See: Department of Environmental Resources v. Pennsylvania Power Company, 461 Pa. 675, 337 A.2d 823 (1975). It appears from the record that the husband simply does not want his familial support responsibilities to interfere any longer with his current lifestyle. The defense of financial inability to comply with the court order is, thus, not applicable to the husband. Compare: Muraco v. Pitulski, supra. Accordingly, we affirm the Order of the lower court, dated June 8, 1983.

The next question for our review is whether the service of the Writ of Execution, directed to the garnishee, Abington OB/GYN Ltd. Pension Plan and Profit Sharing Plan, was sufficient to confer jurisdiction in the lower court over the pension fund of the professional corporation.

As regards service upon a garnishee, we look to Pa.R. C.P. 3111(a) which provides in pertinent part:

(a) The writ shall be served upon the garnishee in the same manner as a writ of summons in assumpsit except as otherwise provided by Rule 8112 and 3113.

Service in an assumpsit action is dealt with in Pa.R.C.P. 1009(d) as follows:

(d) Service upon the following defendants may be made as provided by the following rules: A political subdivision, Rule 2104; a partnership, Rule 2131; an unincorporated association, Rule 2157; a corporation or similar entity, Rule 2180.

Our Supreme Court has held that a pension fund is considered a “similar entity.” Myhalyk v. Lewis, 398 Pa. 395, 158 A.2d 305 (1960). Consequently, service of the Writ of Execution in this case must be made in compliance with Pa.R.C.P. 2180 which, in relevant part, reads as follows:

(a) Service of process within the county in which the action was commenced shall be made upon a corporation or similar entity by the sheriff of that county by handing an attested or certified copy of the process, as prescribed by Rule 1008,
(1) to an executive officer, partner or trustee of the corporation or similar entity; or
(2) to an agent or person for the time being in charge of, and only at, any office or usual place of business of the corporation or similar entity; or
(3) to an agent authorized by the corporation or similar entity in writing to receive service of process for it.

Service was made upon one Sue Caum, the receptionist at the offices of Abington OB/GYN Ltd. corporation. The Sheriffs return of service clearly indicates that Ms. Caum represented to the deputies that she was the person in charge at the time of service. Therefore, under Pa.R. C.P. 2180(a)(2), service was made upon a proper person of the similar entity.

So too, service was properly made at 1245 Highland Avenue, Abington, Pennsylvania, the office of Abington OB/GYN Ltd. The pension plan trustees are the husband and his two partners, collectively known as Abington OB/GYN Ltd., P.C. The pension fund was created by thesé trustees and each maintains his principal office at the address where the Writ of Execution was served. It is obvious that the place where the service was made was also the office of the pension fund. Hence, service of the Writ of Execution was sufficient to enable the lower court to exercise jurisdiction.

The husband also argues that the property sought to be garnished is exempt from attachment pursuant to Section 1056(d) of the Employee Retirement Income Security Act of 1974 (ERISA). The Abington OB/GYN Ltd. retirement trust agreement provides in Paragraph 10.1 as follows:

To the extent permitted by law, the benefits or payments or proceeds and any allocated or unallocated portion of the assets in the Fund and any interest of any Participant or Beneficiary arising out of or created by the Plan or Plans either before or after retirement shall not be subject to execution, attachment, garnishment or other legal or judicial process whatsoever by any person, whether creditor or otherwise, except the Plan or Plans and Trust, and then only as to indebtedness of the Participant due it, claiming against such Participant or Beneficiary.

In the case of American Telephone & Telegraph Company v. Merry, 592 F.2d 118 (2nd Cir.1979), the court held that ERISA does not preempt state law with respect to family support orders and that the alienation and assignment prohibitions of ERISA do not apply to such orders. The court reasoned:

The purpose of the proscription on alienation and assignment is to protect an employee from his own financial improvidence in dealings with third parties. The provision is not intended to alter traditional support obligations but rather to assure that the employee and his beneficiaries reap the ultimate benefits due upon retirement. See Cody v. Riecker, 454 F.Supp. [22] at 25.
Our finding of an implied exception is not only in furtherance of Congress’s concern for the well-being of employees and their dependents as expressed in ERISA § 2(a), 29 U.S.C. § 1001(a), but is also consistent with the federal policy of enforcing support obligations...

592 F.2d at 124.

The consent decree of February 12, 1982 concerned the payment of alimony, child support and taxes. Thus, under the holding and reasoning of the court in Merry, the pension and profit sharing plans are garnishable for the purpose of fulfilling the husband’s support obligations under the consent decree. See also: Knapp v. Johnson, 301 N.W.2d 548 (Minn.1980) (The dependent of a beneficiary was entitled to garnish the beneficiary’s interest in an ERISA-regulated plan for the purpose of satisfying support and alimony obligations).

Finally, the husband contends that the pension and profit sharing plans are exempt from attachment pursuant to 42 Pa.C.S.A. § 8124(b). In germane part, this section reads:

(b) Retirement funds and accounts.—
(1) Except as provided in paragraph (2), the following money or other property of the judgment debtor shall be exempt from attachment or execution on a judgment:
(vii) Any pension or annuity, whether by way of a gratuity or otherwise, granted or paid by any private corporation or employer to a retired employee under a plan or contract which provides that the pension or annuity shall not be assignable.
(viii) Any retirement or annuity fund of any self-employed person (to the extent of payments thereto made while solvent, but not exceeding the amount actually excluded or deducted as retirement funding for Federal income tax purpose) and the appreciation thereon, the income therefrom and the benefits or annuity payable thereunder.

With regard to the predecessor of Section 8124(b), this Court (per Judge HESTER) opined:

Clearly, these types of statutes were specifically drawn to protect the beneficiary’s family so he (or she) could not voluntarily or by means of creditor judgments, dissipate the assets and leave his family without a means of support. In view of this, we decline to interpret the Act of 1917, supra to protect a delinquent husband’s pension funds from attachment for support.

Commonwealth ex rel. Magrini v. Magrini, 263 Pa.Super. 366, 370-71, 398 A.2d 179, 181 (1979).

We agree with this rationale. If the purpose of exemption clauses, like the one in section 8124(b), is to prevent the dissipation of one’s pension so that he can support his family, then to prevent an attachment, whose purpose is to discharge the same obligation that the exemption clause was created to protect, would be unjust. See: Commonwealth ex rel. Magrini v. Magrini, supra.

Accordingly, we hold that in this instance, in an effort to satisfy familial support obligations, the husband’s share of the professional corporation’s pension and profit sharing plans are not exempt from attachment under 42 Pa.C.S.A. § 8124(b). The Order of June 2, 1983 is hereby affirmed.

Order affirmed.

      . Act of April 2, 1980, P.L. 63, No. 26, § 501, 23 P.S. § 501(f)..

      . Id., 23 P.S. § 503(1).

      . Id., 23 P.S. § 103.

      . A consent decree, in the absence of fraud or mistake, is conclusive and binds the parties. Sarsfield v. Sarsfield, 251 Pa.Super. 516, 380 A.2d 899 (1977); See: GOODRICH AMRAM 2d, § 1519(a):!.

      . 29 U.S.C.A. § 1056(d).

      . This predecessor section stated in relevant part:
      ... and any annuity or pension, whether by way of a gratuity or otherwise, granted or paid by any private corporation or employer or out of a trust fund established by any private corporation or employer to a retired employe, being a citizen of this Commonwealth, under an agreement, plan or trust indenture which provides that the same shall not be assignable or subject to execution or attachment, shall be exempt and free and clear from the claims of all his or her creditors, and from all legal and judicial processes of execution, attachment, or otherwise, whatsoever.
      Act of May 3, 1917, P.L. 112, § 1, as amended, 40 P.S. § 515.


author: WICKERSHAM, Judge:

text:
    470 A.2d 988
    COMMONWEALTH of Pennsylvania, Appellant, v. John G. MARGETAS.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1983.
    Filed Jan. 13, 1984.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Com., appellant.
    William Costopoulos, Lemoyne, for appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   WICKERSHAM, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas, Criminal Division, of York County directing that the charges of arson and related offenses be dismissed with prejudice because of the violation of Rule 1100. For the reasons set forth below, we reverse.

In the instant case, the written complaint was filed against the appellee on January 13, 1981. The run date under Rule 1100 was July 13, 1981. There were no orders extending the commencement of trial.

A plea bargain agreement was entered into on April 15, 1981 and was presented to the court on May 1, 1981 before the Honorable Joseph E. Erb who indicated that he would require a pre-sentence investigation, but accepted a nolo contendere plea with the appellee having the right to withdraw his plea in the event the plea bargain was not accepted. On June 26, 1981, Judge Erb advised the appellee that he would not accept the plea bargain because of the provision of “no jail” time.

The lower court found that the Commonwealth filed an application for extension of time for commencement of trial after the July 13, 1981 run date. The lower court, in denying the Commonwealth’s application for an extension, held that there was no excludable time because the acceptance of the plea of nolo contendere, subject to the terms of the plea bargain, did not signify “commencement of trial” for Rule 1100 purposes. Lower ct. op. at 7. Therefore, on September 17, 1981, the lower court dismissed with prejudice the charges against the appellee on the ground that Rule 1100 had been violated. The Commonwealth timely appealed.

The Commonwealth presents the sole question to be considered on appeal as follows:

Whether the lower court erred in dismissing the charges with prejudice against Appellee pursuant to “Pa. R.Crim.P. 1100”?

Brief for Appellant at iv.

To resolve this issue, we must determine whether the acceptance of the plea of nolo contendere, subject to the terms of a plea bargain, signified the “commencement of trial” for Rule 1100 purposes.

The lower court opinion refers to its opinion in a companion case, Commonwealth v. Harileaos G. Margetas, 203 Hbg. 1981 (181-A Criminal Action 1981). The opinion, in that case relied on the decision in Commonwealth v. Cox, 276 Pa.Super. 29, 419 A.2d 78 (1980). In that case, a panel of this court held that acceptance of the defendant’s guilty plea did not signify “commencement of trial.” However, Cox was expressly overruled by an en banc panel of this court in Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982). Lewis held that a tender of a plea of guilty signifies “commencement of trial.”

In short, the tendering of a guilty plea triggers immediately the guilt-determining process, and trial thereupon commences for purposes of determining compliance with Rule 1100. It matters not whether the trial court accepts the guilty plea immediately or takes it under advisement in order to study further the terms of the plea bargain and prepare for sentencing.

Id., 295 Pa.Superior Ct. at 67, 440 A.2d at 1226.

Lewis is consistent with the amendment to Rule 1100 which specifically states when trial begins for purposes of the rule:

(b) For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.

Pa.R.Crim.P. No. 1100(b) (emphasis added).

Although Cox was the law at the time the trial court judge dismissed the charges, we believe we should apply the amended rule and recent case law. The Lewis case noted that Cox was inconsistent with the intent of Rule 1100. We will not apply the reasoning of a case that incorrectly interpreted Rule 1100.

Therefore, we hold that Margetas’ trial commenced when he tendered his plea of nolo contendere.

The Comment to Rule 1100 was amended to say that . rejection of ... a guilty plea should be considered the granting of a new trial for purposes of this rule.” Pursuant to this amendment, when Judge Erb rejected Margetas’ plea, the Commonwealth should have been given 120 days to commence a new trial. See Pa.R.Crim.P. No. 1100(e)(1).

The order of the lower court is reversed and the case remanded for a new trial. Jurisdiction is relinquished.

      . The 180th day would have been July 12, 1981, a Sunday. The Rule 1100 run date therefore falls on the next day, July 13, 1981.