author: JOHNSON, Judge: CIRILLO, Judge,

text:
    475 A.2d 825
    Harry ECK v. Thelma ECK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1983.
    Filed April 27, 1984.
    Petition for Allowance of Appeal Denied Oct. 9, 1984.

      Jerome L. Cohen, Wilkes-Barre, for appellant.
    Gifford R. Cappellini, Wilkes-Barre, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

This appeal arises from the trial court’s order of March 19, 1982, denying alimony to appellant, Thelma Eck.

The parties were married in 1946 and three children were subsequently born. Upon their separation in July of 1966, two children had attained their majority; appellant retained custody of the remaining minor child. The marital home was sold and the proceeds (approx. $4,000) divided equally between the parties, with appellant retaining various items of personal property. Appellant commenced a support action in 1971 and appellee was ordered to pay $75.00 per week for the support of appellant and the minor child. That order was modified to $45.50 per week spousal support upon the minor child attaining his majority. Said support payments continued until 1981. Appellant returned to the state of Washington in 1977, her premarriage residence, to care for her aged, blind mother. Appellee remarried in 1981 while appellant has not.

Appellee initiated a divorce action in October of 1980 and appellant filed an answer and counterclaim requesting, inter alia, alimony. A divorce decree was entered on June 9, 1981 and a master’s hearing regarding alimony in August of 1981.

The master’s report indicated that, at the time of the hearing, appellant was 54 years old and appellee 57 years old. Appellee was employed with a net income of $349.22 per week. He provided support for his second wife and one minor daughter. Appellant was found to have no current income, with the exception of occasional babysitting jobs which rendered $25.00 per week when appellant could engage them. Otherwise, appellant cared for her mother.

Appellant owns no real estate, little personal property, and has no inheritance expectancies. She does not own an automobile. Her monthly expenses amount to $201.00 and has relied on appellee’s support payments since the parties’ separation. She has an eleventh grade education and no employment skills, having not been employed since marrying appellee. Prior to their marriage, appellant had been employed in a tuna cannery.

The master determined that appellant should be awarded alimony in the sum of $45.50 per week, based on a finding that appellant lacked sufficient property to provide for her reasonable needs and was, and would be, unable to find appropriate employment or develop appropriate employable skills. The master’s determination also recommended appellee pay $10 per week arrearages from the date of the divorce and that appellant report to the Domestic Relations Office one year from the date of the alimony order as to her attempts at securing employment as well as all income from any source.

Following the filing of appellee’s exceptions, the trial court entered an order denying alimony and dismissing the counterclaim. On appeal, appellant alleges that, under the circumstances of this case, the trial court abused its discretion in denying alimony. We agree and reverse.

We note initially that a trial court’s order concerning an alimony award should be reviewed only for an abuse of discretion. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

Section 501(a) of the Divorce Code sets forth the criteria concerning alimony:

§ 501. Alimony
(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.

The fourteen factors listed in section 501(b) are also to be considered in determining whether alimony is necessary. Bickley v. Bickley, 301 Pa.Super. 396, 447 A.2d 1025 (1982).

In its opinion in support of its order, the trial court held that appellant had failed to demonstrate that she is not able to obtain appropriate employment, based on her voluntary decision to care for her mother. The court also stated that:

Undoubtedly, several of [the § 501 factors] point to an alimony award for Mrs. Eck. However, on balance it is our view that by virtue of Mr. Eck’s long years of support payments to her and Mrs. Eck’s decision not to seek further education or training for employment, Mr. Eck’s obligations under § 501 must be deemed to have been fully satisfied.

The trial court, in its opinion, also states that it was informed by letter that appellant’s mother died subsequent to the master’s hearing. However, a trial court may not consider facts or evidence dehors the record in making its determination. Cf. Commonwealth ex rel. Bowers v. Widrig, 318 Pa.Super. 198, 205, 464 A.2d 1299, 1302 (1983). Nor may this court uphold a trial court’s order on the basis of off-the-record facts. In re Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980).

Appellant has met the test of section 501(a)(1) regarding lack of sufficient property, for she has no significant property of her own, nor any expectancy of receiving property in the future. Clearly, the division of the proceeds from the sale of the marital home do not constitute sufficient property, in light of appellant’s lack of a current source of income.

Our focus must therefore be directed to section 501(a)(2) to determine whether appellant proved that she is unable to support herself through appropriate employment. The trial court determined that appellant’s failure to seek further education or training for employment, coupled with her voluntary decision to care for her aged, blind mother indicated a failure of proof as to this factor. We disagree.

The master’s report indicates that appellant was 55 years old at the time of the hearings, lacks a high school education and lacks work experience. We agree with the master that these impediments would likely prevent her from obtaining gainful employment.

Secondly, as a matter of both public policy and interpretation of the alimony provisions of the Divorce Code, we believe appellant was justified in not seeking employment in order to care for her aged, blind mother under the instant circumstances. It is inconceivable that a party should be penalized for fulfilling such a crucial familial obligation by being refused alimony, in part, on this basis. We note that section 501(c) of the Divorce Code states:

(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill, (emphasis added)

We believe that appellant’s caring for her mother was just such a compelling impediment to gainful employment, as was her lack of employment skills, lack of education, lack of work experience and her age.

The trial court viewed any award of alimony as an unfair imposition of the “burden of parental support” upon the appellee. The facts developed by the master do not support such a characterization. Where, as here, the party seeking alimony had received the sum of $45.50 as support over a period of ten years, had returned to her native Northwest to care for her blind, aged mother (89 years old), had not worked other than as an occasional babysitter since entering marriage thirty-five years ago, and had no retained employable skills, we have no difficulty in concluding, as did the master, that appellant’s ability to provide for her own reasonable needs through employment had been substantially diminished by reason of age (55 years), lack of completed high school education, lack of work experience, and other compelling impediments to gainful employment.

The master, based upon the facts then before him, wisely recommended that appellant be required to report, one year from the date the proposed alimony order would be entered, all steps taken to secure employment, with a list of all income from any sources. Had this recommendation been adopted by the trial court, appellant would have received what was her present right to alimony under the Divorce Code, while having to respond to the overall objectives and purposes of the Code.

We therefore reverse the trial court’s order and remand for entry of an appropriate order awarding alimony. Jurisdiction is not retained.

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

CIRILLO, Judge,

concurring and dissenting:

I agree with the majority that the order of the hearing court, denying alimony, should be reversed. I disagree, though, with the conclusion that we should adopt the recommendation of the Master. Instead, an evidentiary hearing is required to determine if the appellant is able to support herself through appropriate employment.

The majority concludes that the appellant’s age, lack of education and lack of work experience would “likely” prevent her from obtaining gainful employment. However, there is nothing in the record indicating that the appellant made any attempt to seek employment or further education or training for employment. Clearly, the appellant is obligated to make reasonable efforts to support herself through profitable employment. See: Act of April 2, 1980, P.L. 63, No. 26, § 501, 23 P.S. § 501(a)(2).

Moreover, I cannot conclude as a matter of public policy that the appellant was justified in not seeking to procure some form of employment under the circumstances. The appellant received some property from equitable distribution, she lives rent-free with her brother, she possesses some personal property, she lives near other family members in Washington, and her decision to remove herself from the job market was voluntarily made. Additionally, for approximately ten years, the appellee paid the appellant $45.00 a week in support.

The appellant’s decision to care for her blind, aged mother was indeed commendable. However, in noting that one of the expressed intentions of the legislature in promulgating the Divorce Code is to “effect economic justice between parties who are divorced”, Act of April 2, 1980, P.L. 63, No. 26, § 102, 23 P.S. § 102, I agree with the trial court’s view that the burden of parental support which the appellant undertook should not be imposed upon the appellee.

      . Act of April 2, 1980, P.L. 63, No. 26, § 501, 23 P.S. § 501(a), eff. July 1, 1980.

      . While the author of the concurring and dissenting opinion agrees that the order denying alimony must be reversed, he believes that an evidentiary hearing is required before any order of alimony support may be entered. Our review of the entire record persuades us that the evidence was sufficient, on August 10, 1981 when the master’s report was filed, to support an award of alimony at that time. Section 501(e) of the Code provides:
      (e) Any order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon such order may be modified, suspended, terminated, reinstituted, or a new order made. Any such further order shall apply only to payment accruing subsequent to the petition for the requested relief----
      Thus, appellee remains free to secure trial court review of the present circumstances of either party, even as appellant’s right to support based upon the facts preserved in the record is sustained. The recommendation of the master was wholly consistent with this analysis and did no violence to the expressed intentions of the legislature in promulgating the Code.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    475 A.2d 829
    Anna GILHAM, Appellant, v. Henry GILHAM.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1984.
    Filed May 4, 1984.

      Eugene J. Julian, Washington, for appellant.
    John P. Liekar, Jr., Canonsburg, for appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   BROSKY, Judge:

Appellant, the former wife of appellee, seeks the enforcement in a Pennsylvania court of an “alimony” award granted to her in Ohio in 1978. The lower court declined to implement the enforcement procedures of the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) because Mr. and Mrs. Gilham were divorced by decree of the Court of Common Pleas of Allegheny County in 1979. We affirm.

Prior to their divorce Mr. and Mrs. Gilham apparently lived in Ohio where Mrs. Gilham continues to reside. In March of 1978 the Court of Common Pleas of Belmont County, Ohio issued an order directing Mr. Gilham to pay support to his wife in the amount of $500.00/month and to pay the mortgage payments due on the residence occupied by Mrs. Gilham.

In 1980 and again in 1981 the Ohio court awarded Mrs. Gilham judgments in the amounts of $5,112.43 and $8,382.00, respectively, because it found appellee to have accumulated arrearages in those amounts.

In May, 1982 the petition which is the basis of this appeal was filed in the Court of Common Pleas of Washington County, Pennsylvania. In her petition Mrs. Gilham seeks enforcement of the $500.00/month Ohio support order and $8,382.00 arrearages judgment.

The lower court denied the petition because it concluded that since the parties were divorced in Pennsylvania at a time when there was no obligation to pay post marital support, appellant could not enforce her support order by means of RURESA.

It is true that prior to the enactment of the Divorce Code of 1980 there was no obligation to support a former spouse. See Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974). In Appeal of Bona Lynn Werline, 280 Pa.Super. 572, 575 n. 4, 421 A.2d 1080, 1081 n. 4 (1980), we explained that consistent with Pennsylvania’s policy that an obligation to support a former spouse is created only by contract, our courts would not recognize, as enforceable under RURESA, a foreign court order awarding alimony.

The Werline opinion explained that the proper remedy for a former spouse seeking to enforce a foreign alimony award in Pennsylvania was through an assumpsit action or an action for specific performance in equity.

Appellant argues that since this state’s policy towards alimony has changed, so too, should its policy towards enforcing foreign alimony/support decrees.

The Divorce Code provides for alimony awards (23 P.S. §§ 501); the enforcement of alimony arrearages (23 P.S. § 503) and the enforcement of foreign alimony awards (23 P.S. § 506).

The Divorce Code defines alimony as, “An order for support granted by this or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.” (23 P.S. § 104).

The award granted by the Ohio court was not granted in conjunction with the divorce decree which was entered a year later in Pennsylvania. Instead, though denominated “alimony” the award seems to have been in the nature of a support order, (see footnote 3, ante).

It was granted prior to entry of a divorce decree on the basis of appellee’s “gross neglect of duty.” Not having been entered in connection with a divorce decree and arising, as the order did, from appellee’s duty to support appellant, we believe that the order is not of the type governed by the Divorce Code.

Nor, we must conclude, can we enforce the support order through the provisions of RURESA.

The $500.00/monthly support order which appellant asks us to enforce was entered in Ohio prior to the parties’ divorce. When the parties were divorced, this state no longer recognized a duty on Mr. Gilham’s part to support his former wife. In 1979, then, it is clear that Mrs. Gilham could not have succeeded in having this court enforce the support order.

We cannot agree that enactment of the Divorce Code calls for a different result in this case. The Code itself provides at 23 P.S. § 103 that its terms do not apply to cases in which a decree was entered prior to the effective date of the Act. While appellant does not seek enforcement of the “alimony” award according to the provisions of the Divorce Code, she does base her argument that she is entitled to enforcement of the award on the policy evidenced by the Code.

If we were to remand this case as requested by Mrs. Gilham we would be effecting the result which our Divorce Code specifically prohibited. We would be permitting a spouse divorced under the former law to receive support payments after the entry of the divorce. We cannot read the statute in such a way as to ignore its clear terms.

Order affirmed.

      . 42 Pa.C.S. §§ 6741 to 6780.

      . We construe the lower court’s order of November 18, 1982 as dismissing the petition.

      . The Ohio court termed the payments "alimony”. Apparently Ohio's courts have used that term to refer to support payments ordered both during and after the termination of a marriage. See e.g. Wolfe v. Wolfe, 46 Ohio St.2d 399, 350 N.E.2d 413 (1976).

      . Attached to appellant’s testimony and petition is a certificate signed by a judge of the Court of Common Pleas of Belmont County, Ohio in which the court says appellant needs $500.00/month support, $192.00/month house payment and payment on arrearages of $16,- . 500.00. We do not understand the discrepancy in the figures requested in the testimony, petition and certificate.

      . 23 P.S. §§ 101, et seq., Act of April 2, 1980, P.L. 63, No. 26.


text:
    475 A.2d 831
    David A. PORCH v. Kimberley A. PORCH, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1984.
    Filed May 4, 1984.

      Cynthia A. Sheehan, Indiana, for appellant.
    Philip N. Shelapinsky, Greensburg, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   BROSKY, Judge:

Before us is a custody dispute involving the three daughters of the appellant and her husband, the appellee. The lower court granted custody of the girls, Angela, Erica and Nicole, to their father. Mrs. Porch argues that the court erred in that it should have treated the dispute as one between the childrens’ mother and paternal grandparents, rather than as one between the parents. Her contention is that if the case were viewed in that light she would be entitled to custody since in a contest between a parent and a third party, a parent has a prima facie right to custody which will be forfeited only if convincing reasons appear that the childrens’ best interest will be served by an award to the third party. While we would agree with appellant’s statement of the burden placed on third parties, see e.g. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980), we conclude that the lower court correctly treated this dispute as being between the parties and properly granted custody to appellee. In a dispute between parents, each parent shares the burden of proving, by a preponderance of the evidence, that an award of custody to him or her would serve the best interests of the child. Witmayer v. Witmayer, 320 Pa.Super. 372, 467 A.2d 371 (1983).

Our court has recently discussed at length the scope of review to be used by us in custody cases. In In Re Donna W, 325 Pa.Super. 39, 472 A.2d 635 (1984), we explained that the Court must use a broad scope of review and exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate. Our paramount concern is with the best interests of the children. The In Re Donna W opinion makes clear that although we are bound by findings of fact made by the trial court, we are not similarly bound by the inferences and deductions drawn from those facts by the trial court.

In Donna W we used a four step review process which involves a determination first that the record indicates that the procedural prerequisites to a custody award have been satisfied.

In the instant case, we find the record to contain sufficient testimony and the trial court opinion adequate.

The next step outlined in Donna W requires that we determine whether the factual findings made by the lower court are supported by the record.

In this case we find support for all of the factual findings.

The parties were married on July 19, 1975. They separated in March, 1982. Since the separation, the children have resided with their paternal grandparents in Saltsburg, Indiana County. Their father continues to reside in the marital residence, which is next door to his parents’ home.

Appellee, Mr. Porch is employed by the Helvetia Coal Company and works three shifts, on a revolving basis.

The childrens’ mother lives with her parents in Cherry Tree, also in Indiana County.

At the time of the hearing, Mrs. Porch worked on Friday and Saturday evenings as a waitress.

When the children stay with their mother at her parents’ home, two of the girls share a room while the third shares a sofa bed with her mother in the living room.

The lower court noted that there was no evidence that the paternal grandparents’ home was inadequate physically to meet the needs of the children.

The children appeared to the trial court to be well dressed, groomed, nourished, adjusted and happy.

Finally, the court noted that the two oldest girls, then aged 7 and 6, expressed a desire to remain in Saltsburg, although the court did note that they seem to get along with both of their parents and grandparents.

The next step in the analysis involves our determining whether the lower court committed any error of law. We find no such error here and therefore proceed to the final stage of review which requires us to determine what inferences and deductions to draw from the facts.

Appellant argues that the trial court erred in finding this to be a dispute between the parents. She contends that we should place on the father the heavy burden that is placed on third parties who seek custody in a dispute with parents. See Ellerbe v. Hooks, supra, Moorman v. Tingle, 320 Pa.Super. 348, 467 A.2d 359 (1983).

We disagree and conclude that this dispute is only between the parties and that an award to the father is not in reality an award to the grandparents.

Appellant attempted to join the grandparents and the lower court directed the grandparents to appear at a hearing on March 31, 1983 if they wished to have custody of the girls. The grandparents apparently made no appearance. Nor are they parties to this appeal. Of course, we will not exhalt form over substance and reject appellant’s argument merely because the grandparents are not named parties. See Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980). Instead, we believe that the facts presented below indicate that custody of the girls will actually rest with the father, with the grandparents helping him to care for them.

The children live in a residence separate from their father’s home only because of his erratic work schedule. As Mr. Porch explained, if the children were to sleep in his home, they would have to be awakened at 12:30 a.m. and returned home from their grandparents on those occasions when their father works until that hour. They would be similarly uprooted to meet his schedule when he worked from midnight to 8:00 a.m. In short Mr. Porch has been able to rely upon his parents as caretakers. Instead of providing only day care they have taken it upon themselves to provide babysitting services at night as well in order to meet the needs of their son. They live next door to Mr. Porch who spends time with his children at his parents’ home and who, the court found, takes his meals at his parents’ home with his children. This is not a case in which control of the children has been surrendered to the grandparents, rather, it is one in which a single father has sought and received help in the care of his children.

Applying, then, the standard to be used in disputes between parents, we agree with the trial court’s decision to place the children in their father’s custody.

As the court noted in its opinion, while both parents expressed a sincere interest in caring for the girls, there was testimony by both the father and several other witnesses to the effect that during the period when Mrs. Porch was the primary caretaker, the children were often given inadequate care. Specifically, the court cited testimony that the children were not bathed regularly nor properly fed.

While Mrs. Porch now resides with her parents and may be able to provide better care to the girls than they received in the past, we find nothing in the facts to demonstrate her caretaking abilities.

In contrast, the evidence presented at the hearing suggests that under the care of their father, with the help of his parents, the girls are well groomed and their needs met. The record indicates that under the present arrangement the girls are doing quite well. Erica and Angela are doing well in school.

We agree that the preponderance of the evidence indicates that the girls should remain in their father’s custody and the stable environment in which they presently reside.

Order affirmed.

      . There was some dispute as to whether the separation actually began in January, 1982 and there was evidence, not mentioned by the trial court, of a short reconciliation but there was certainly support for the finding of the court.


author: MONTEMURO, Judge:

text:
    475 A.2d 834
    COMMONWEALTH of Pennsylvania v. Rick Lee WOOD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1983.
    Filed May 4, 1984.
    Petition for Allowance of Appeal Denied Oct. 25, 1984.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

The appellant, Rick Lee Wood, was convicted of recklessly endangering another person after a jury trial in the Lancaster County Court of Common Pleas. Post verdict motions were denied by the trial court. On July 6,1982, the appellant was sentenced to three (3) to twenty-three (23) months imprisonment. This appeal followed.

The appellant contends that the trial court erred in refusing to instruct the jury on the offense of reckless driving, which he maintains is a lesser included offense of recklessly endangering under the circumstances of this case. We agree.

The facts relevant to this appeal are as follows: On May 27, 1981, two young men, Franklin Ayres and William Hummel, rode their bicycles into the Turkey Hill Minit Mart in Landisville, Lancaster County. At the same time, the appellant was at the market purchasing some iced tea. The appellant was driving a 1969 Chevrolet Coupe, and as he pulled away from the market, he made an obscene gesture toward Hummel. Hummel returned a derogatory witticism pertaining to the appellant’s intelligence.

Shortly thereafter, Hummel and Ayres were riding their bicycles toward Hummel’s house when they were overtaken by the appellant. The appellant got out of his vehicle and challenged Hummel and Ayres to fight. The two cyclists refused and proceeded down the road. They then heard the appellant’s car accelerate toward them. Hummel moved off the road and attempted to jump the curb with his bicycle, but negotiated the jump improperly and fell to the ground. Ayres remained on the road and was struck a glancing blow by the side of appellant’s vehicle knocking him to the ground. Neither Ayres, nor Hummel was injured in the incident. We would conclude under these facts that a charge to the jury on reckless driving was warranted.

The test for determining whether an offense is a lesser included offense is whether all the essential elements of the lesser offense are included in the greater offense. Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982); Commonwealth v. Wise, 298 Pa.Super. 485, 444 A.2d 1287 (1982); Commonwealth v. Gouse, 287 Pa.Super. 120, 429 A.2d 1129 (1981). See also Commonwealth v. Thomas, 482 Pa. 312, 393 A.2d 1122 (1978); Model Penal Code § 1.07(4). It is not error, however, for a judge to refuse to instruct the jury on the lesser-included offense unless the evidence could support a conviction on the lesser offense. Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273 (1976). The rationale for this rule has been stated as:

[I]f the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must as a theoretical matter, return a verdict of acquittal. But the defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.

Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844 (1973).

The crime of recklessly endangering another person is set forth at 18 Pa.C.S.A. 2705, which states: “A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” In Commonwealth v. Trowbridge, 261 Pa.Super. 109, 115, 395 A.2d 1337, 1340 (1978), this court set forth the elements: “[T]he crime requires (1) a mens rea — recklessness, (2) an actus reus — some ‘conduct,’ (3) causation — ‘which places,’ and (4) the achievement of a particular result — ‘danger,’ to another person of death or serious bodily injury.”

At 18 Pa.C.S.A. § 302(b)(3), the term “recklessly” is defined:

A person acts recklessly with respect to a material element of an offense when he consciously disregards 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, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. (Emphasis added).

We do not dispute the jury’s finding that the evidence was sufficient to prove that the appellant was guilty beyond a reasonable doubt of the crime of recklessly endangering another person. The two questions which must be answered are (1) whether all of the essential elements of reckless driving are elements of recklessly endangering, and (2) whether the evidence presented would also sustain a conviction of reckless driving.

Reckless driving is defined at 75 Pa.C.S.A. § 3714, which states: “Any person who drives a vehicle in careless disregard for the safety of person or property is guilty of a summary offense.” This offense has but two elements: an actus reus — driving a vehicle; and a mens rea — careless disregard. There is no causation or particular result required by the statute. We would conclude that reckless driving is a lesser included offense of recklessly endangering another person, under the circumstances of this case, because each of the elements of the former is included within the corresponding elements of the latter.

Reckless driving calls for a particular act to be performed — driving a vehicle. Recklessly endangering merely requires “conduct”. Driving a vehicle is conduct; admittedly conduct pertaining to a particular instrumentality but conduct nevertheless. Thus, with respect to the actus reus, reckless driving is a lesser included offense of recklessly endangering.

The mens rea for reckless driving is “careless disregard” while this specific designation is not defined in our criminal statutes, this court has stated with respect to prior incarnation of the present statute, 75 P.S. § 481:

The 1951 amendment redefined reckless driving by eliminating wilful or wanton conduct in the operation of a vehicle as an essential element of the offense. But in so doing it is clear that the legislature did not intend to increase a driver’s responsibility for ordinary negligence by reclassifying mere negligence as reckless driving. What was contemplated in the language ‘carelessly disregarding the rights or safety of others, or in a manner so as to endanger any person or property’ was to set the minimal requisite of the statutory offense of reckless driving at less than wilful and wanton conduct on the one hand and, on the other, something more than ordinary negligence or the mere absence of care under the circumstances.

Commonwealth v. Forrey, 172 Pa.Super. 65, 67, 92 A.2d 233, 234 (Emphasis added); See also Commonwealth v. Schmitzer, 286 Pa.Super. 138, 428 A.2d 610 (1981) (applying Forrey analysis to the present statute); Commonwealth v. Podrasky, 250 Pa.Super. 57, 378 A.2d 450 (1977) (applying Forrey analysis to corresponding provision in 1959 Motor Vehicle Code). Therefore, careless disregard is the equivalent of culpable negligence. Commonwealth v. Podrasky, supra; Commonwealth v. Forrey, supra.

The mens rea required for recklessly endangering is recklessness — described in 18 Pa.C.S.A. § 302(b)(3) as “conscious disregard” of a substantial and unjustifiable risk, whereas the mens rea for reckless driving is “careless disregard”. We believe this distinction between “conscious” and “careless” connotes a definite difference in the intent requirement, with a lesser intent required to establish reckless driving. Therefore, with respect to mens rea, reckless driving is a lesser included offense of recklessly endangering.

Having met the first test — i.e. each of the essential elements of the lesser crime being included in the elements of the greater — it must be determined whether the facts adduced at trial would support a conviction for reckless driving. We conclude, with little hesitation, that this is the case. The appellant drove his vehicle in a manner which caused it to come into contact with Ayres and his bicycle. This conduct did not result in any injury, but it could have. The act demonstrates in the very least a careless disregard for the safety of persons and property.

The lower court was of the opinion that the reckless driving instruction was not warranted because the evidence “unquestionably” established the greater mens rea required to convict on the more serious crime. This was improper as this determination is one within the province of the jury. The jury should not have been put in a position where it was required to choose between recklessly endangering and acquittal where the evidence showed some illegal conduct on the part of the appellant. Rather, it should have had before it the option of finding guilt on the lesser offense.

Consequently, we must vacate the judgment of sentence and remand the case for a new trial.

Vacated and Remanded. Jurisdiction is not retained.

      . 18 Pa.C.S.A. § 2705.

      . The appellant raised sufficiency of the evidence as an alternative argument. We find no merit in that contention.

      . Act of August 24, 1951, P.L. 1368.


text:
    475 A.2d 837
    Margaret JAHN, Appellant, v. Dennis J. O’NEILL and VIP Car Rental, Inc.
    Superior Court of Pennsylvania.
    Argued March 7, 1984.
    Filed May 11, 1984.
    Petition for Allowance of Appeal Denied Sept. 25, 1984.

      Barbara G. DeMarest, Plymouth, for appellant.
    Jay E. Mintzer, Philadelphia, for appellees.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

This matter is before the court on the appeal of Margaret Jahn from the lower court’s grant of summary judgment in favor of VIP Car Rental, Inc., (hereinafter “VIP”), appellee. Appellant filed an action in trespass against Dennis J. O’Neill and VIP to recover for damages to her automobile incurred in an accident with an automobile operated by O’Neill and owned by VIP. VIP is an automobile lessor, and had leased the O’Neill vehicle to him. VIP moved for summary judgment on the basis that, as a matter of law, a lessor of a vehicle is not liable for property damage caused by its vehicle while driven by a lessee. Following the lower court’s order granting VIP summary judgment, this appeal was filed timely.

To impose liability on a person for an injury resulting from the operation of a motor vehicle, “he must, except where liability is otherwise imposed by statute, either be in the actual operation thereof or in the control thereof, or stand in the relation of master or principal to the person whose act occasions the injury.” 4 P.L.E. Automobiles and Motor Vehicles § 281 (emphasis added). Thus, the lessor of a motor vehicle is generally not liable for the negligence of a lessee while operating the vehicle. Littles v. Avis Rent-A-Car System, 433 Pa. 72, 248 A.2d 837 (1969); Turley v. Kotter, 263 Pa.Super. 523, 398 A.2d 699 (1979); see also 4 P.L.E. Automobiles and Motor Vehicles § 282, A lessor may be held liable, however, for the lessor’s own negligence in leasing the vehicle for use by a person whom the lessor has reason to know is incompetent. Littles, supra; RESTATEMENT (SECOND) OF TORTS § 390 (1965).

Appellant does not contend that VIP should be held liable for O’Neill’s negligence under the doctrine of respondeat superior, or that VIP was liable under § 390 of the Restatement of Torts for negligently leasing the vehicle to O’Neill. Instead, appellant’s theory is that the Pennsylvania No-Fault Motor Vehicle Insurance Act imposes liability on a lessor of a motor vehicle for property damage caused by a lessee’s negligent operation of such vehicle.

Appellant relies on a provision of the No-fault Act which states:

Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle. . . . Security shall be provided ... for the payment of damages for injury to or destruction of property in any one accident of amounts up to a total limit of five thousand dollars ($5,000).

40 P.S. § 1009.104(a). Appellant next points out that while this property damage coverage cannot be reached through No-fault basic loss benefits, 40 P.S. § 1009.103 (definition of “basic loss benefits”), it is available for any required tort liability, 40 P.S. § 1009.103 (definition of “insurance”). Then, in ascertaining the scope of this tort liability, appellant construes 40 P.S. § 1009.104(a) to statutorily create liability of an owner of a vehicle, for property damage caused by one who drives the vehicle with the owner’s permission. Appellant concludes, therefore, that since O’Neill as a lessee was driving the vehicle with VIP’s permission, VIP’s required property damage coverage is available to appellant if appellant can prove its claim against O’Neill.

Appellant’s construction of 40 P.S. § 1009.104(a) is misconceived. First of all, statutes are presumed not to make changes in the rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions. Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976); Rahn v. Hess, 378 Pa. 264, 106 A.2d 461 (1954). There is certainly no express declaration in 40 P.S. § 1009.104(a) that it is creating tort liability which previously did not exist, and so we must presume that the statute does not effect such a change. Indeed, appellant does not assert that this new tort liability is explicitly stated in 40 P.S. § 1009.104(a), but that it must be implied to give meaning to the requirement that an owner has to provide property damage insurance for those driving his vehicle with his permission.

Even ignoring the presumption that a statute does not change the law unless it does so expressly, appellant’s reasoning that such a change can be implied from 40 P.S. § 1009.104(a) is erroneous. A close reading of that statute reveals that, contrary to appellant’s belief, it does not require an owner to insure against property damage caused by one driving the vehicle with the owner’s permission. The clause referring to operation by one with permission pertains only to which motor vehicle owners are required to provide coverage under the No-fault Act. Thus, owners who have vehicles registered in Pennsylvania, or owners whose vehicles are not registered here but are operated here either by the owner himself or with his permission, are required to provide security covering their vehicle. The clause relating to operation by permission, therefore, has absolutely nothing to do with the subsequent requirement describing the extent of property damage insurance which must be maintained on the vehicle. Reduced to its essence, the portion of 40 P.S. § 1009.104(a) regarding property damage insurance provides only that every motor vehicle owner shall provide property damage insurance covering his vehicle, in an amount of $5,000. Such a construction does not give rise to any implication that the statute attempted to create liability of an owner for property damage caused by someone operating the vehicle with the owner’s permission.

Finally, we note that appellant curiously has cited the case of Lyngarkos v. Commonwealth, Department of Transportation, 57 Pa.Commw.Ct. 121, 426 A.2d 1195 (1981). That case stands for the proposition that an action in tort exists against an automobile dealer for negligently issuing a temporary registration card and a license plate without first securing proof of No-fault insurance. That trespass action was based on a statutorily imposed duty that automobile dealers, as agents of the Department of Transportation, inspect all documents necessary for the proper registration of a motor vehicle. There being no duty, statutory or otherwise, on lessors of vehicles to make sure that lessees carry No-fault insurance, no corresponding tort liability can be predicated here.

Accordingly, the order of the lower court is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq.; 40 P.S. § 1009.101 et seq.

        . The No-fault Act partially abolishes tort liability with respect to any "injury” that takes place in Pennsylvania. 40 P.S. § 1009.301(a). “Injury” is specifically defined to include only injury to the person or death, 40 P.S. § 1009.103 (definition of “injury”), and so the No-fault Act does not affect the existence of tort liability for injury to property.


author: HOFFMAN, Judge: SPAETH, President Judge,

text:
    475 A.2d 840
    COMMONWEALTH of Pennsylvania, Appellant, v. Scott CASPER.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1983.
    Filed May 11, 1984.

      Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Barry H. Oxenburg, Philadelphia, for appellee.
    Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

The Commonwealth contends that the lower court erred in dismissing the charges against appellee pursuant to Pa.R.Crim.P. 1100(f). We agree that the Commonwealth’s petition to extend was timely filed and, accordingly, reverse the lower court’s dismissal and remand for a hearing on the Commonwealth’s extension petition.

Appellee was arrested and charged with burglary, criminal trespass and criminal conspiracy on May 22, 1981, resulting in a Rule 1100 rúndate of November 18, 1981. Appellee’s May 27 preliminary hearing was continued until June 26, because appellee failed to appear with counsel. On June 26, because appellee again appeared without counsel, bail was revoked and the case was listed for August 14. On August 14, an appearance was entered on appellee’s behalf by Peter Levin, private counsel retained by appellee’s mother. Bail was reinstated; however, the preliminary hearing was once again continued until September 9 because of the unavailability of the complaining witness. The preliminary hearing was held on September 9, at which time appellee was bound over for trial. At the September 23 arraignment, appellee was determined to be eligible for court-appointed counsel and trial was set for November 25. On November 24, however, eight days after the Rule 1100 rúndate, the Commonwealth petitioned for an extension under Rule 1100(c) claiming 79 days of excludable time pursuant to appellee’s failure to retain counsel from May 27 to June 26 and from June 26 to August 14. Subsequent to appellee’s filing a motion to dismiss pursuant to Rule 1100(f) and a hearing on the two petitions, the lower court denied the Commonwealth’s petition to extend as untimely and granted appellee’s motion for dismissal. Upon the Commonwealth’s petition for reconsideration, the lower court vacated its order and entered a rule to show cause why the Commonwealth’s petition for reconsideration should not be granted. After a hearing, the court reinstated its order dismissing appellee. This appeal followed.

The Commonwealth alleges that its petition to extend was timely filed because the period from May 27 through June 26 was excludable pursuant to Rule 1100(d)(1). We agree. Pa.R.Crim.P. 1100(d)(1), in effect at the time of appellee’s arrest, provided:

(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;

(Emphasis added). “Where ... an accused appears for a court proceeding without counsel and without waiving his right to counsel, the period of delay caused thereby is excludable from the computation of time for commencing trial under Rule 1100 on the ground that the accused is obviously unavailable for trial.” Commonwealth v. Manley, 503 Pa. 482 at 485, 469 A.2d 1042 at 1044 (1983). In an earlier case, Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977), the Supreme Court found that a criminal defendant who had not waived his right to counsel is deemed “ ‘unavailable’ when that defendant appears for proceedings in connection with his case without defense counsel and such defendant is financially capable of retaining counsel.” Id., 470 Pa. at 517, 368 A.2d at 1276. See also Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979) (defendant attended preliminary hearing without counsel, did not waive right, and noted desire to obtain private counsel; delay therefore excludable); Commonwealth v. Henry, 294 Pa. Superior Ct. 482, 440 A.2d 568 (1982) (44-day period excluded because appellee capable of affording counsel). The Manley Court concluded that although Millhouse was not controlling because the defendant in Millhouse was financially able to retain counsel and Manley could not afford private counsel, Millhouse was “sufficiently analogous to lend support for” the per se rule stated above. Commonwealth v. Manley, supra, 508 Pa. at 485, 469 A.2d at 1044. The Court therefore ruled that although the lower court had directed Manley to the Public Defender, he was deemed unavailable for Rule 1100 purposes when he failed to obtain representation.

In the instant case, appellee neither waived his right to counsel nor was represented by counsel at the May 27 and June 26 preliminary hearings. Although we agree with appellee’s assertion of his financial inability to retain private counsel, under Manley we are compelled to find him “unavailable” within the meaning of Pa.R.Crim.P. 1100(d)(1). Accordingly, because the period from May 27, 1981 through and including June 26, 1981, must be excluded from Rule 1100 calculations, the rúndate was effectively well past November 24, 1981, the date upon which the Commonwealth filed its extension petition.

Therefore, we reverse the lower court’s order and remand for a hearing on the Commonwealth’s petition for a Rule 1100 extension.

Reversed and remanded. Jurisdiction is not retained.

SPAETH, President Judge, files a concurring opinion.

SPAETH, President Judge,

concurring:

Manley, I believe, holds that an accused is “unavailable” when he “appears for a court proceeding without counsel and without waiving his right to counsel. . . .” Id., 503 Pa. at 485, 469 A.2d at 1044. Therefore, when appellant appeared on May 27 at his preliminary hearing without counsel, he was “unavailable”. Manley also holds that “the period of delay caused thereby [appearance without counsel] is excludable from the computation of time for commencing trial under Rule 1100 on the ground that the accused is obviously unavailable for trial.” Id. In Manley the Court excluded the period of time from the day that the accused appeared without counsel until the day before the day that counsel entered an appearance for the accused. Therefore, here we should exclude the period of time from May 27, when appellant appeared at his preliminary hearing without counsel, until August 13, the day before counsel entered an appearance on appellant’s behalf. This period is excludable because appellant’s unavailability caused a delay in the proceedings. Pa.R.Crim.P. 1100 (d)(3)(i). See, Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979) (plurality opinion) (automatically exclude period of delay in preliminary proceedings resulting from defendant’s appearance without counsel), Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977) (same). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977) (uncounseled accused who requested continuance prior to scheduled proceeding not “unavailable”). I therefore agree with the majority that the Commonwealth’s petition to extend filed on November 24, 1981, was timely. But see, Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979), where the Court stated:

[A]ny occurrences between the filing of the complaint and the commencement of the trial which did not affect the time in which the trial was commenced, is [sic] beyond the purview of the Rule and therefore not properly considered as a “delay in the proceedings” within the terms of section (d) of the Rule. “Delay in the proceedings” as used in the Rule requires an actual frustration in the commencement of trial. A postponement of an arraignment which does not in any way prolong the time for the commencement of trial is irrelevant to the question of a speedy trial and is therefore not in fact to be considered in determining the application of Rule 1100 in a given case.

Id., 484 Pa. at 123, 398 A.2d at 975.

I admit that I am uncertain how to reconcile this statement with the decisions in Millhouse and Bussey (which were cited in Manley, though Morgan was not).

      . Appellee appeared before several judges in the course of the proceedings below. References to the lower court are to the actions and decision of Judge Cain, who dismissed the charges.

      . The Commonwealth originally contended that the period from June 26 to August 14 should be excluded as well. During the hearing on the Commonwealth’s petition for reconsideration, however, the District Attorney stated that because the period from May 27 to June 26 was excludable, the "[Commonwealth] didn’t need June 26th to August 14th of 81 days, so I am really not arguing those.”


author: WIEAND, Judge:

text:
    475 A.2d 842
    Frank HENNESSEY and Jill Rupp, Appellants, v. AMERICAN MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 14, 1984.
    Filed May 18, 1984.

      Drew S. Dorfman, Philadelphia, for appellant.
    Harry G. Mahoney, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

The only issue in this case is whether Pa.R.C.P. 238 has application to an uninsured motorist arbitration held pursuant to the Act of April 25, 1927, P.L. 381, No. 248, 5 P.S. §§ 161 et seq., now recodified at 42 Pa.C.S. §§ 7301 et seq. The learned trial judge held that Rule 238 had no application and vacated that portion of the arbitrators’ award which represented damages for delay. We affirm.

The language of Rule 238 is clear. It has no application to arbitration under the Act of 1927. We agree fully with the trial court’s observation that “the language of the rule limits the class of arbitrators qualified to apply the rule to those ‘appointed under the Arbitration Act of June 16, 1836 ... or the Health Care Services Malpractice Act of October 15, 1975...’ [Pa.R.C.P. 238(a)]. The concept expressed in the maxim ‘inclusio unius est exclusio alterius’ is fully applicable in these circumstances. The Supreme Court of Pennsylvania, by including certain arbitrators in the rule, was implicitly indicating to the courts that only those, and no others, could award delay damages. No mention is made in the rule of either statutory or common law arbitrators.” (footnotes omitted).

Since the trial court filed its opinion in the instant case, this Court has had several opportunities to consider the application of Rule 238 to common law arbitration. It has held uniformly that the rule, by its express terms, has no application to such arbitration proceedings. See: Erie Insurance Exchange v. McGee, 327 Pa.Super. 56, 474 A.2d 1171 (1984); Greenspan v. United Services Automobile Association, 324 Pa.Super. 315, 471 A.2d 856 (1984). For the same reason, it has no application to statutory arbitration.

The order of the trial court is affirmed.


text:
    475 A.2d 843
    COMMONWEALTH of Pennsylvania, v. Floyd Joseph MONACO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1983.
    Filed May 18, 1984.

      Richard Audino, New Castle, for appellant.
    William M. Panella, District Attorney, New Castle, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and HESTER, JJ.
   WIEAND, Judge:

During the early morning of June 13, 1979, Floyd Monaco shot and killed Albert Izzo, a plainclothes state policeman. Monaco entered a plea of guilty to murder generally and, after hearing before the Honorable J. Quint Salmon, specially presiding, was adjudged guilty of murder in the first degree. A subsequent motion to withdraw the plea of guilty was denied, and Monaco was sentenced to prison for life. On direct appeal from the judgment of sentence, Monaco contends (1) that the trial court erred in denying his motion to withdraw the plea of guilty; (2) that the evidence was insufficient to sustain a finding of murder in the first degree; and (3) that the trial court erred in denying a pre-trial motion for change of venue. We find no merit in these contentions and, accordingly, affirm the judgment of sentence.

A degree of guilt hearing commenced on July 7, 1980 and was concluded on July 28, 1980. The evidence produced during the hearing disclosed that appellant, together with Joseph Querriera and Joseph Frank, Jr., had been involved in a drug dealing operation centered in New Castle, Lawrence County. This drug operation had been under investigation by a “strike force” made up of law enforcement officers from Pennsylvania and Ohio. In the early morning of June 13, 1979, appellant and Querriera were making a delivery of approximately fifty pounds of marijuana to the rear entrance of Frank’s apartment in New Castle. Appellant and Querriera waited at their car while a purchase was negotiated with Frank by a group of interested buyers, including Trooper Daniel Haggerty, an undercover state policeman. On the pretext of retrieving money from his car, Haggerty left Frank’s apartment to signal members of the strike force to move in. Trooper Izzo, in plain clothes, was a member of the strike force. When he and other policemen advanced, shouting “police” and “freeze”, appellant turned around slowly, faced the advancing officers with a .357 magnum revolver, and shot Izzo in the abdomen when he was approximately ten or twelve feet distant. Appellant then turned and ran. He continued to fire at the police, however, who returned the fire. A second bullet entered Izzo’s back after ricocheting off the wheel of a parked car. Izzo died several hours later as a result of shock and trauma caused by the bullet wounds. At the hearing, medical evidence did not demonstrate which of the two bullets had been the primary cause of death. Ballistics evidence confirmed that the bullet which struck Izzo in the abdomen had been fired from appellant’s gun. The source of the second bullet could not be ascertained with the same precision because, in ricocheting, the bullet had become so misshapen as to prevent certainty in determining ballisticaliy its source. Ballistics evidence showed, nevertheless, that the bullet could not have been fired by any gun carried by police but could have been fired by appellant’s .357 magnum. The evidence did not disclose that shots had been fired by anyone other than appellant and the police officers.

At the close of the evidence on July 28, but before closing arguments of counsel, appellant filed a written motion to withdraw his plea of guilty. Following the closing arguments of counsel but before the trial court rendered a decision, appellant filed, on August 18, a counseled motion for leave to withdraw his earlier request to withdraw the plea of guilty. A hearing was held on September 9; and on September 18, the court entered an order allowing appellant to revoke the motion to withdraw his plea of guilty. On February 19, 1981, the court rendered its decision finding appellant guilty of murder in the first degree. After that decision had been filed but prior to sentencing, appellant again moved to withdraw his guilty plea. This request was denied.

The standard for permitting a defendant to withdraw a plea of guilty varies according to the point in the proceedings at which the motion to withdraw is made. In Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983), the Supreme Court said:

The proper standard to be used prior to sentencing is whether a fair and just reason exists. If the trial court finds any fair and just reason for the withdrawal, such withdrawal should be permitted because of the importance of an accused’s rights to a trial by his peers. However, once a sentence has been imposed, an accused should be permitted to withdraw his guilty plea only “to correct a manifest injustice”. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). The basis for the difference between those two standards is clear. Allowing an accused to withdraw his guilty plea after imposition of sentence requires a stricter standard to prevent defendants from using a guilty plea as a tool for previewing the sentencing by the court. Such a misuse does not occur when withdrawing a guilty plea prior to sentencing.

Id., 502 Pa. at 517, 467 A.2d at 310. See also: Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982).

The trial court in the instant case applied the more lenient, pre-sentence standard but concluded that appellant had failed to advance a “fair and just reason” for withdrawal. The only reason which appellant gave to support the request to withdraw his plea was a weakness which he perceived in the Commonwealth’s evidence as it pertained to the cause of death. This was not a “fair and just reason.” It was inadequate for several reasons. In the first place, it was the same reason which appellant had previously advanced and then had withdrawn before the court made its decision. Secondly, “ ‘[w]here an accused enters a plea of guilty to murder generally, it is sufficient in itself to sustain a conviction of [third degree murder].’ ” Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983), quoting Commonwealth v. Walker, 460 Pa. 658, 663 n. 7, 334 A.2d 282, 284 n. 7 (1975). Appellant’s plea of guilty to murder, therefore, made it unnecessary for the Commonwealth to prove the precise cause of death. His plea constituted an admission that there had been a causal connection between his conduct and the death of Trooper Izzo. Commonwealth v. Dillinger, 440 Pa. 336, 269 A.2d 505 (1970). The fact that appellant’s .357 magnum had been the death dealing weapon, moreover, was confirmed by the Commonwealth’s evidence. Even though Izzo had been struck by two bullets and only one could be traced specifically by ballistics testing to appellant’s gun, the circumstantial evidence was sufficient to establish that appellant’s gun had been the source of the second bullet as well. Appellant’s request to withdraw his plea of guilty did not allege that he was innocent of the shooting. His perceived weakness in the Commonwealth’s evidence was unwarranted and did not constitute adequate reason for permitting him to withdraw his plea of guilty after the degree of guilt hearing had been completed and a finding had been made by the court.

In Commonwealth v. Lesko, supra, the defendant attempted to withdraw a plea of guilty to murder of the second degree. The trial court denied the request. The Supreme Court affirmed, saying that defendant’s “petition was akin to a post-sentencing petition” because the defendant “was well aware of the only sentence imposable for the crime to which he pled guilty.” Id., 502 Pa. at 517, 467 A.2d at 310. In the absence of fair and just reason, it was too late to permit the appellant in this case to withdraw his guilty plea after the degree of guilt hearing had been completed and a finding of first degree murder made. The trial court could properly refuse to permit appellant to use the plea of guilty as a means for testing the strength of the Commonwealth’s case. Compare: Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984) (threat of counsel to withdraw from case if defendant did not plead guilty held “fair and just” reason for withdrawing guilty plea after degree of guilt hearing but before sentencing).

In determining the sufficiency of the evidence to show first degree murder, we are required to view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth. The test is whether the evidence, thus viewed, is sufficient to prove every element of the crime of murder in the first degree beyond a reasonable doubt. See: Commonwealth v. Macolino, 503 Pa. 201, 205-06, 469 A.2d 132, 134 (1983); Commonwealth v. Baylor, 323 Pa.Super. 9, 12, 469 A.2d 1134, 1135 (1983); Commonwealth v. Rosetti, 322 Pa.Super. 536, 538, 469 A.2d 1121, 1122 (1983).

The Commonwealth’s evidence was sufficient to establish a fully formed intent to kill. The necessary intent could be inferred from the fact that appellant took deliberate aim at Izzo’s abdomen, which was ten or twelve feet distant, with a deadly .357 magnum and fired. See: Commonwealth v. Madison, 501 Pa. 485, 462 A.2d .228 (1983); Commonwealth v. Padgett, 465 Pa. 1, 348 A.2d 87 (1975); Commonwealth v. Wyche, 320 Pa.Super. 483, 467 A.2d 636 (1983); Commonwealth v. Hartzell, 320 Pa.Super. 249, 467 A.2d 22 (1983); Commonwealth v. Clemmons, 312 Pa.Super. 475, 459 A.2d 1 (1983), rev’d. on other grounds, — Pa. —, 479 A.2d 955 (1984). The intent to kill could be inferred irrespective of whether the primary cause of death had been the first or second bullet or a combination of both. Appellant turned and shot Izzo despite clear and unmistakable police commands to “freeze.” The trial court could find from this evidence that appellant deliberately elected not to surrender but to shoot it out with arresting police officers.

The trial court’s denial of a pre-trial motion for change of venue is not a viable issue. The entry of a plea of guilty operated to waive all non-jurisdictional defects and defenses. Commonwealth v. Unger, 494 Pa. 592, 595, 432 A.2d 146, 147 (1980); Commonwealth v. Montgomery, 485 Pa. 110, 114, 401 A.2d 318, 319 (1979); Commonwealth v. Everett, 290 Pa.Super. 344, 351, 434 A.2d 785, 789 (1981). See: Commonwealth v. Faust, 324 Pa.Super. 492, 499, 471 A.2d 1263, 1267 (1984). Procedural defects and errors occurring prior to the entry of the plea are relevant only to the extent they affect the voluntary nature of the plea itself. Commonwealth v. Rice, 456 Pa. 90, 93 n. 3, 318 A.2d 705, 707 n. 3 (1974). Otherwise, pre-trial, procedural defects and determinations are waived by the entry of a plea of guilty. See, e.g.: Commonwealth v. Montgomery, supra (defect in form of indictment); Commonwealth v. Emerick, 434 Pa. 256, 252 A.2d 365 (1969) (suppression of confession); Commonwealth v. Faust, supra (suppression of evidence); Commonwealth v. Keller, 292 Pa.Super. 165, 436 A.2d 1203 (1981) (suppression of evidence and confession); Commonwealth v. Everett, supra (adequacy of factual basis for charge to which plea of guilty entered).

The judgment of sentence is affirmed.


text:
    476 A.2d 1
    Helen METZGER, Esau Joseph, Samuel Levin, Harold Sherwin, Richard J. Makoul, Esquire, As Escrowee, Appellants, v. CLIFFORD REALTY CORP., A/K/A Communications Media, Inc., and Pentamation Enterprises, Inc. Robert MARGOLIS, Harry Margolis, Vincent Abajian, and Zarnas Corporation, Appellants, v. PENTAMATION ENTERPRISES, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1983.
    Filed April 6, 1984.
    Petition for Allowance of Appeal Denied Oct. 3, 1984.

      Richard J. Makoul, Allentown, for appellants (No. 328).
    Michael Prokup, Allentown, for appellants (No. 329).
    J. Stephen Kreglow, Easton, for appellees.
    Before SPAETH, President Judge, and MONTEMURO, and POPOVICH, JJ.
   MONTEMURO, Judge:

This matter is before the Court on the consolidated appeals of two groups of shareholders of the now defunct corporation, TV Time and Channel, Inc. (hereinafter “TV Time, Inc.”). The shareholders brought parallel actions against Pentamation Enterprises, Inc. (hereinafter “Pentamation”) under an agreement of sale wherein Pentamation, through a wholly owned subsidiary, purchased the business, assets, and liabilities of TV Time, Inc. After a non-jury trial, the lower court entered a verdict in favor of Pentamation, exceptions by the shareholders were dismissed, and judgment was entered. The shareholders appeal on the basis that the lower court’s interpretation of the agreement of sale was erroneous.

Our scope of review of a judgment entered after a trial before a judge without a jury is limited. We must accept findings of fact which are supported by the evidence, for the lower court is in a better position than we are to resolve conflicts in the evidence and issues of credibility. We are not bound, however, by findings not supported by the evidence; nor are we bound by the lower court’s inferences from this evidence or its conclusions of law. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981).

The factual background of this matter is not in dispute, the parties having stipulated to the significant events involved. TV Time, Inc. operated a business of publishing a weekly television program listing under the copyrighted trade name of TV Time and Channel. Pentamation, a data processing firm, supplied its services to TV Time, Inc. to produce label and listing information. During the year 1971, the financial condition of TV Time, Inc. was poor; it was losing money and Pentamation was not paid $12,-000. 00 for its data processing services rendered over several months.

Joseph Cunningham, the president of TV Time, Inc. and editor of TV Time and Channel, proposed that Pentamation acquire the business and revamp the product by investing substantial data processing technique to gear the booklet to specific cable companies. On August 30, 1971, the president of Pentamation wrote a letter to Cunningham presenting Pentamation’s proposal for acquisition of TV Time and Channel:

Dear Joe:
During the past several months we have mutually discussed the feasibility of Pentamation acquiring TV Time & Channel. After reviewing the data you have supplied to us, we propose to acquire TV Time & Channel and to utilize the resources available to us to implement the computerized text system for cable editions. Our proposal is based on the creation of a new wholly owned corporation responsible for the current TV Time & Channel operations and the new text systems. It is our intent to make all reasonable efforts to insure the success of this new venture, however, due to the inherent risks involved, we make no guarantees and condition our offer so that final settlement for TV Time & Channel will require reasonable performance by the subsidiary company over the next three years. The following points highlight our offer:
1. Pentamation, through the subsidiary company, would purchase the assets of TV Time & Channel for up to 50,000 shares of Pentamation common stock. This stock would be payable from the subsidiary company contingent on continued operations over a three year period, 15% (7,500 shares) payable October 1, 1971, 35% (17,500 shares) payable October 1, 1972, and 50% (25,000 shares) payable October 1, 1973____
... We look forward to your participation with Pentamation and to a long term mutually profitable relationship. (Emphasis added).

The shareholders of TV Time, Inc. subsequently voted to accept this proposal of Pentamation, and an agreement was executed on October 21, 1971.

The agreement provides, in pertinent part:

1. Sale of Business. The Seller [TV Time, Inc.] shall sell, transfer and deliver to the Purchaser [Cliffland Realty Corp. a/k/a Clifford Realty Corp. a/k/a Communications Media, Inc., which corporation is a wholly owned subsidiary of Pentamation] all the Seller’s assets shown on the schedule of the Seller, dated September 30, 1971 attached hereto as Exhibit “1” together with the trade name, any and all copyrights, subscription lists, contracts, going value. . . .
3. Purchase Price. In consideration for such sale and transfer, the Purchaser shall transfer, at the closing:
(a) to the Seller, or its nominees, 7,500 shares of the no par value common stock of Pentamation, fully paid and nonassessable, said certificates to be in such denominations, amounts and names as may be requested by the Seller; and
(b) to the Merchants National Bank of Allentown, Allentown, Pennsylvania (hereinafter called “Escrowee”), 55,000 shares of the no par value common stock of Pentamation, fully paid and non-assessable with appropriate stock powers attached.
4. Payment of Escrow.
(a) (1) The Escrowee shall transfer and deliver to the Seller, or its assigns, shares of Pentamation stock held by it as follows:
(A) September 30, 1972 — 17,500 shares
(B) September 30, 1973 — 25,000 shares
(2) The Escrowee shall transfer and deliver on September 30, 1974 to the individuals named in Exhibit “2” attached hereto and made a part hereof, the shares of Pentamation stock listed in said Exhibit; the total number of shares being delivered on said date to be 12,500 shares.
(b) Transfer of Pentamation stock by the Escrowee on each of the dates above mentioned is contingent upon:
(1) The Purchaser having not terminated the business acquired from the Seller before a transfer date. In the event such termination of business occurs, Escrowee shall return to the Purchaser any shares remaining in Escrow and neither Seller nor its assigns shall have any right to or interest in said shares.
5. Liquidation, Dissolution and Discontinuation of Business.
(a) The Seller covenants that, promptly upon receipt by it at the closing, of the stock of Pentamation, and in any event on or before April 30, 1972, it will distribute all such shares to its stockholders in complete winding up and liquidation. . . . The Seller agrees to assign and transfer to its stockholders, the right to receive additional shares of Pentamation from the Escrowee pursuant to ... this Agreement.
(b) The Purchaser hereby specifically reserves the right to discontinue and terminate at any time the operation of the business which is the subject of this Agreement when, in its exclusive business judgment, its Board of Directors deems it desirable to do so. In the event of said termination, the provisions of paragraph 4(b)(1) shall be rendered operative.
6. Assumptions of Liabilities and Contracts.
(A) In further consideration for such sale and transfer, Purchaser shall assume and discharge, and shall indemnify the Seller against, all debts, liabilities and obligations of the Seller as shown on Exhibit “3” dated September 30, 1971.

The major liability assumed by Pentamation’s wholly owned subsidiary under the agreement was TV Time, Inc.’s unearned subscription liability listed at $98,396.63. The subscription liability represented the pre-payment by subscribers for prospective editions of TV Time and Channel.

Pentamation delivered the 7,500 shares of stock at closing and the escrowee delivered the first contingent payout of 17,500 shares on September 30, 1972. During this time, Pentamation had spent twelve months developing the programming to produce the specialized cable booklet. In addition, Pentamation had invested a substantial amount of capital in TV Time and Channel. As a result of publishing the booklet, the subsidiary lost money for the calendar years 1971 and 1972, and Pentamation became concerned about the contingent stock payout due on September 30, 1973.

On September 29, 1973, one day prior to the scheduled contingent stock payout, the wholly owned subsidiary of Pentamation sold the business of publishing TV Time and Channel to Carl ft. Kehler. Kehler took over operation of the business immediately without alteration or interruption of the business. Pentamation then informed the escrowee that it had terminated its operation of the business and, under the agreement, the remaining shares of stock in escrow should be returned to Pentamation. No further shares were distributed to the shareholders of TV Time, Inc.

The sole issue presented is whether the sale of TV Time and Channel to Kehler constituted a “termination of the operation of the business” under the agreement of sale, such that Pentamation’s obligation to deliver the remaining stock held in escrow was extinguished. The lower court found that the agreement of sale was ambiguous and, referring to parol evidence, determined that it was the intent of the parties to make the scheduled payments conditional upon reasonable performance by the business. In this context, the condition of reasonable performance was not met, as the business incurred severe losses. Thus, the “salvage" sale merely to avoid further liability from the magazine’s subscribers was encompassed within what the parties had intended as a “termination of operation” which would curtail Pentamation’s duty to distribute the balance of the stock. Under this analysis, if the business had been successful, the condition of reasonable performance would have been met, and, therefore, a sale by Pentamation under such circumstances would not discharge Pentamation’s obligation to distribute the remaining stock.

Appellants argue that the language of the contractual contingency is clear and unambiguous and so the lower court erred in referring to extrinsic evidence to discern the intent of the parties. We disagree.

In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished. Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d,298 (1963). Where the words of the contract are clear and unambiguous, the intent of the parties must be determined exclusively from the agreement itself. Kennedy v. Erkman, 389 Pa. 651, 133 A.2d 550 (1957). Where the language of the written contract is ambiguous, extrinsic or parol evidence may be considered to determine the intent of the parties. In re Herr’s Estate, 400 Pa. 90, 161 A.2d 32 (1960). While courts are responsible for deciding whether, as a matter of law, written contract terms are either clear or ambiguous; it is for the fact finder to resolve ambiguities and find the parties’ intent. Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1957); Castellucci v. Columbia Gas of Pennsylvania, Inc., 226 Pa.Super. 288, 310 A.2d 331 (1973).

A contract will be found to be ambiguous:

[I]f, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.

Commonwealth State Highway and Bridge Authority v. E.J. Albrecht Co., 59 Pa.Commw.Ct. 246, 251, 430 A.2d 328, 330 (1981) (Quoting 8 P.L.E. CONTRACTS § 146 (1971)). Ambiguities may be either patent or latent. A patent ambiguity appears on the face of the instrument and arises from the defective, obscure, or insensible language used. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). Latent ambiguities arise from extraneous or collateral facts which render the meaning of a written contract uncertain although the language, on its face, appears clear and unambiguous. Id.

We find that a patent ambiguity appears on the face of the instrument. The contingency in question is contained in two sections of the agreement of sale. Paragraph 4(b) generally provides:

(b) Transfer of Pentamation stock by the Escrowee on each of the dates above mentioned is contingent upon:
(1) The Purchaser having not terminated the business acquired from the Seller before a transfer date. (Emphasis added).

The contingency is then explored in greater detail in paragraph 5(b):

(B) The Purchaser hereby specifically reserves the right to discontinue and terminate at any time the operation of the business which is the subject of this Agreement when, in the exclusive business judgment, its Board of Directors deems it desirable to do so. In the event of said termination, the provisions of paragraph 4(b)(1) shall be rendered operative. (Emphasis added).

Appellants point to the dictionary definition of “terminate” and its usage in paragraph 4(b) and conclude that the explicit and plain meaning of “terminate the business” is to put an end to the existence of the business. Therefore, since the business continued in existence under the operation of Kehler, it was not “terminated” and the condition relieving Pentamation of its stock payout obligation was not fulfilled.

While we do not quarrel with appellants’ definition of the word “terminate”, their emphasis on exactly what was to be terminated under the contractual condition is misplaced. Paragraph 5(b) expands on the general language contained in paragraph 4(b), and specifies that the purchaser reserved the right to terminate the operation of the business. Paragraph 5(b) then details that the purchaser could exercise this right when it desired to do so in its exclusive business judgment. Specific provisions of an instrument will be regarded as qualifying the meaning of broad general terms. In re Alloy Manufacturing Co. Employees Trust, 411 Pa. 492, 192 A.2d 394 (1963). Paragraph 5(b) being more specific, it qualified the general language of paragraph 4(b). Thus, the contingency involved here is the purchaser’s right to terminate the operation of the business, rather than to terminate the business itself.

The purchaser’s right to terminate the operation of the business is obscure in meaning through indefiniteness of expression. Commonwealth State Highway and Bridge Authority v. E.J. Albrecht Co., supra. In determining whether a written contract contains such an ambiguity, the court may consider “ ‘whether alternative or more precise language, if used, would have put the matter beyond reasonable question.’ ” Celley v. Mutual Benefit Health and Accident Association, 229 Pa.Super. 475, 482, 324 A.2d 430, 434 (1974) (Quoting Mazzilli v. Accident and Casualty Insurance Co. of Winterhur, Switzerland, 35 N.J. 1, 7, 170 A.2d 800, 803 (1961)); see also Commonwealth, Department of Transportation v. Bracken Construction Co., 72 Pa.Commw.Ct. 620, 457 A.2d 995 (1983). In Celley, this court held that the term “eye trouble” in a contract of insurance was ambiguous since it could have referred to diseases or disorders of the eye arising from pathological conditions, or damage to the eye resulting from accident or other external physical injury, or both. Similarly, the purchaser’s right to “terminate the operation of the business” can refer to either liquidation of the business by the purchaser, or sale of the business by the purchaser, or both. More precise language denoting either liquidation or sale or both would have put this matter beyond reasonable question. In the absence thereof, however, the meaning of that language is ambiguous.

Reference to the remaining provisions of the contract does not resolve the meaning of this particular language, but instead confirms its ambiguity. In paragraph 5(a), provision is made for the “complete winding up and liquidation” of the seller, TV Time, Inc. In view of the use of the term “liquidation” in paragraph 5(a), if the parties had intended that “termination of the operation of the business” in paragraph 5(b) could only mean liquidation of the business by the purchaser, it would seem that they would have employed this exact term. The parties, however, selected language which was broader than the recognized term of “liquidation.”

Thus, an ambiguity exists on the face of the instrument, and the lower court properly considered extrinsic evidence in determining the intent of the parties. This resolution being a fact finding function, Easton v. Washington County Insurance Co., supra; Castellucci v. Columbia Gas of Pennsylvania, Inc., supra; we cannot disturb the finding of intent if it is supported by the evidence. The letter of offer dated August 30, 1971, from the president of Pentamation to Cunningham, amply supports the fact finder’s determination of intent, that intent being that the stock payouts were to be contingent upon reasonable performance of the business. With this understanding as the basis for the condition, it follows that a sale of the business under circumstances of poor performance would release Pentamation from further stock payout obligations, while a sale under circumstances of reasonable performance would not. It is not contested that TV Time and Channel’s performance under Pentamation’s subsidiary was poor, and so the salvage sale prior to September 30, 1973, operated to extinguish Pentamation’s remaining contractual duties.

Accordingly, the judgments are affirmed.

      . The format of the TV Time and Channel booklet at that time made it directly competitive with the widespread publication, TV Guide, as well as weekly television supplements which were furnished by newspapers.

        . It is only in the case of latent ambiguity that the court is permitted to go outside the writing to make the initial determination of whether an ambiguity exists. Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350 (1976). This exception to the general rule against parol evidence is expectably limited. The usual instance wherein a latent ambiguity arises " ‘is one in which a writing refers to a particular person or thing and is thus apparently clear on its face, but upon application to external objects is found to fit two or more of them equally’ ” Steuart v. McChesney, supra, 498 Pa. at 53, 444 A.2d at 663 (Quoting from Easton v. Washington County Insurance Co., supra, 391 Pa. at 35, 137 A.2d at 336). Examples of these usual instances of latent ambiguity have been found where an insurance policy covered a "hay house" and there were two "hay houses", Lycoming Mutual Insurance Co. v. Sailer, 67 Pa. 108 (1870); and where an insurance policy insured two chicken houses for different amounts and the policy did not designate which was chicken house No. 1 and which was chicken house No. 2, Koplin v. Franklin Fire Insurance Co., 158 Pa.Super. 301, 44 A.2d 877 (1945). Latent ambiguity has also been found where a duplicity of meaning results from reference to external objective practices as well as external objects: the term “alimony” in a separation agreement was held to be latently ambiguous where tax consequences were recognized as often prompting use of the term “alimony” in separation agreements while intending child support. Kohn v. Kohn, supra. Similarly, the Third Circuit case of Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (3rd Cir.1980), seems to squarely address this type of latent ambiguity based on external objective practices. While not couched in these terms, Mellon Bank holds that if a reasonable alternative interpretation is suggested, “external signs and objective indicia" may be considered in determining whether ambiguity exists. Thus, extrinsic evidence is properly considered to show that a "two by four” is never really two inches by four inches, but somewhat smaller, and that a "pound” of caviar is always fourteen ounces.

      . Appellants argue that under this analysis, Pentamation could have hypothetically sold the business for a large profit even though it had performed poorly, and still be relieved of additional stock payouts. This conjectured outcome is erroneous. If Pentamation had realized a large profit from the sale of the business, then the overall performanee of the business would have been boosted to the "reasonable performance” category, and distribution of stock would be required.


author: HESTER, Judge:

text:
    476 A.2d 7
    COMMONWEALTH of Pennsylvania v. Randall HALL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1983.
    Filed April 6, 1984.
    Reargument Denied June 18, 1984.

      Frank J. Marcone, Media, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

On June 21, 1980, the victim, Wanda Nicholson, a.k.a., Wanda Cooper, was arguing with appellant’s wife, Patty Hall, in the trolley loop on Main Street, Darby, Delaware County, Pennsylvania. Miss Nicholson was brandishing a knife and Mrs. Hall held a beer bottle; it was obviously a violent altercation. Appellant, Randall Hall, and another man separated the women. Appellant led his wife into the nearby Bus Stop Bar and Miss Nicholson walked under the other man’s supervision across the street to Cook’s Bar.

Shortly thereafter, Miss Nicholson left Cook’s Bar and upon reaching the street, noticed appellant on the opposite side chiding her and holding a handgun. While clutching a knife, the victim approached appellant, cursed him and proclaimed her lack of fear. Appellant fired two or three shots at the victim in an apparent attempt to dissuade her from confronting him. She would not relent, however. When she was within arms-length of him, appellant fired a final time and fatally wounded her in the upper portion of her left chest cavity.

Appellant immediately departed the scene and remained at large for two months. He was apprehended on August 25, 1980 in Montgomery County. Appellant was charged with murder in the first degree, murder in the third degree, voluntary manslaughter, involuntary manslaughter, simple assault, aggravated assault, recklessly endangering another person, owning a firearm as a former convict and carrying a firearm without a license.

Following a lengthy pre-trial period during which appellant filed several petitions and three appeals to this Court, a jury trial finally commenced on March 11, 1981. A verdict of guilty was returned on voluntary manslaughter and possession of a firearm without a license. Post-trial motions were denied and appellant was sentenced to a combined term of imprisonment of seven and one-half to fifteen years. This appeal was taken from the judgment of sentence entered December 22, 1981.

It is appellant’s first contention that the lower court erred in proceeding to trial while his separate appeals from orders denying his pre-trial motions for writ of habeas corpus and to recuse the trial judge were pending. Our disposition of this issue does not require addressing appellant’s remaining arguments.

On January 17, 1981, appellant, with the assistance of counsel, filed a motion for writ of habeus corpus. It was denied on January 22, 1981, and appellant followed with a timely pro se appeal therefrom on February 4, 1981. On February 18, 1981, appellant filed a pro se motion to recuse the trial judge. It too was denied, prompting appellant to file a pro se appeal therefrom on February 26, 1981. Also on February 26, 1981, but at a time earlier to the filing of the appeal on February 26th, appellant was granted leave by the lower court to proceed pro se.

The trial court instituted trial on March 11, 1981 despite the pending two appeals. The court was of the apparent belief that the appeals were improperly filed due to the interlocutory and nonappealable nature of the orders from which the appeals were taken. Indeed, the separate appeals from the aforementioned two pre-trial orders were eventually quashed on those grounds; however, the appeals were not quashed by this Court until August 10, 1981, five months following commencement of trial.

Under Pa.R.A.P. No. 1701(a), the subject matter jurisdiction of the lower court is removed for so long as an appeal from an order issued earlier in the proceedings is pending. This removal of subject matter jurisdiction applies only to the extent of precluding the trial court from proceeding on issues related to the matter on appeal. P.R.A.P. No. 1701(c). See also Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965); Commonwealth v. Borris, 280 Pa.Super. 369, 421 A.2d 767 (1980). This remains so despite' the fact that the lower court is proven correct in its belief that the appeal will be quashed due to the interlocutory and nonappealable nature of the lower court order.

The lower court did not err in instituting trial due to appellant’s pending appeal from the order denying his motion for a writ of habeas corpus. That appeal was filed pro se prior to appellant’s acquiring leave to proceed pro se. An accused’s pro se actions have no legal effect while defense counsel remains authorized to represent the accused in all aspects of the proceedings. Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1979). As a result, appellant’s pro se appeal from the denial of his petition for a writ of habeas corpus was a nullity which would not prevent the lower court from instituting trial.

Unfortunately, we cannot reach the same result with respect to appellant’s pro se appeal from the order dismissing the motion to recuse the trial judge. That appeal was commenced in pro se form a mere seventeen (17) minutes following the granting of leave to proceed pro se. Having been properly filed in pro se form, that appeal must be accorded legal effect. We must hold, therefore, that the lower court erred in instituting trial while the appeal from the order denying appellant’s motion to recuse the trial judge was pending.

Had the instant matter come to trial following the effective date (September 15, 1983) of Pa.R.A.P. No. 1701(b)(6), both appeals from the denial of the pre-trial orders would not have held lower court proceedings in abeyance. This subsection authorizes the trial court to “[proceed] further in any matter in which a nonappealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review of the order.” Inasmuch as both appeals here were taken from a “nonappealable interlocutory order,” Rule 1701(b)(6), had it applied, would sanction the lower court trial in March, 1981. Rule 1701(b)(6) has no such retroactive effect on this case however.

Pennsylvania Rules of Civil Procedure No. 1701(c), which was in effect throughout the lower court proceedings, also cannot countenance the institution of trial. Rule 1701(c) prevents the trial court from proceeding only on the “item, claim or assessment adjudged in the matter [that] is involved in an appeal.” Appellant sought recusal of the trial judge due to the jurist’s alleged prejudice, his alleged hostility, the fact that he was a named-defendant in a civil case filed by appellant and the fact that appellant reported him to the Judicial Inquiry and Review Board and the Federal Bureau of Investigation. These allegations in support of recusal are tightly intertwined with appellant’s right to a fair trial. Therefore, we cannot reasonably hold that the order denying recusal was an “item, claim or assessment” separate and distinct from issues covered at trial.

The Commonwealth correctly points out that appellant raises for the first time on this appeal the lower court error in proceeding to trial without jurisdiction. Nevertheless, we cannot agree with the Commonwealth that appellant’s failure to raise the jurisdictional question at trial or during post-trial motions amounts to waiver. It is axiomatic that subject matter jurisdiction is nonwaivable. Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982); Commonwealth ex rel. Posnansky v. Posnansky, 210 Pa.Super. 280, 232 A.2d 73 (1967).

Obviously, the case, sub judice, is an example of those which precipitated the adoption of Rule 1701(b)(6). We are relieved that appeals from interlocutory and nonappealable orders will no longer bar lower court proceedings. The record here reflects that appellant had inundated the lower court with numerous pre-trial motions and numerous appeals, most of which had negligible merit. Appellant's behavior had obstructed legal process, unduly agitated both the prosecutor and defense counsel and inflicted unnecessary and unprovoked hardship upon the trial judge and other servants of the court. We are relieved that Rule 1701(b)(6) will henceforth alleviate some of the difficulties created by obstreperous defendants. We regret however that Rule 1701(b)(6) offers no relief in this appeal.

Reversed and remanded for new trial. Jurisdiction is relinquished.

      . During his marriage, appellant attempted to engage in a romantic relationship with the victim. During the early months of 1980, and prior to the criminal incident, the victim publicly chastised appellant. Appellant was humiliated. He responded by striking the victim's face with his fist and threatening to get even. On the day of the victim’s death, appellant quarreled with the victim in the Bus Stop Bar and struck her again. The altercation between appellant’s wife and the victim was apparently the result of appellant’s relationship with the victim.

      . Appellant was granted leave to proceed pro se by the Court of Common Pleas of Delaware County on February 26, 1981 at 2:40 p.m. He filed a pro se notice of appeal from the order denying his motion to recuse the trial judge on February 26, 1981 at 2:57 p.m.