author:
BECK, Judge: TAMILIA, Judge, BROSKY, Judge, MONTEMURO, Judge,
      JOHNSON, Judge,

text:
    568 A.2d 1297
    Margaret H. BELL, Appellee, v. John F. BELL, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1989.
    Filed Jan. 22, 1990.

      Ellen M. Viakley, Pittsburgh, for appellant.
    Charles F. Perego, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   BECK, Judge:

Husband-appellant and wife-appellee were divorced on February 11, 1982. Prior to divorce, the parties agreed to entry of a consent order providing for the payment of child support by husband to wife. This order was entered on November 30, 1981. On December 1, 1981, the parties executed a comprehensive agreement resolving their economic claims in anticipation of divorce. The Agreement provided, in pertinent part:

2. EFFECT OF DIVORCE DECREE
The parties agree that unless otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties.
3. AGREEMENT TO BE INCORPORATED IN DIVORCE DECREE
The parties agree that the terms of this Agreement shall be incorporated into any divorce decree which may be entered with respect to them.
4. ENFORCEABILITY AND CONSIDERATION
If the contemplated divorce is not secured as agreed upon herein, this Agreement shall be null and void and of no further force and effect. If the contemplated divorce is granted and this Agreement is approved by the Court, and orders anticipating the enforcement of this Agreement are included in the decree granting a divorce between the parties, the Court shall maintain jurisdiction over the parties and the matters that are the subject of this Agreement.
12. CHILD SUPPORT
Commencing on distribution date, Husband shall pay to Wife the sum of Four Hundred Eighty and 00/100 ($480.00) Dollars per month per child for the support of the children until emancipated.
16. HEALTH INSURANCE — CHILDREN
Husband shall provide Blue Cross/Blue Shield coverage or equivalent for the benefit of the child so long as he is obligated to contribute to their support pursuant to the provisions of this Agreement. In the event that Wife returns to work and has Blue Cross/Blue Shield or equivalent coverage, Wife shall provide such coverage for the benefit of the child concurrently with Husband's coverage.
17. CUSTODY AND VISITATION
The parties agree that custody of the said child John Harry Bell, shall be with Wife. Husband shall have partial custody____ Visitation shall be open upon proper notice. ... The terms of Custody and Visitation are subject to review by the Court in accordance with the Laws of the Commonwealth of Pennsylvania.
26. NO WAIVER OF DEFAULT
This Agreement shall remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement.

The parties were divorced on February 11, 1982. The divorce decree stated that the Agreement “is made a part hereof”.

In 1987, husband petitioned for a reduction in child support on the ground that wife had become employed. The trial court denied the requested relief by order dated February 12, 1988. Husband appeals.

Husband argues that both the Agreement and the divorce decree evidence a clear intent by the parties that the Agreement would merge into the decree, thus becoming an order of court providing for child support which would be modifiable downward upon a showing of changed circumstances.

We disagree. Although husband has properly identified the crucial question as being what the parties intended as to the modifiability of their Agreement, we do not concur in his interpretation of the Agreement and decree.

In our opinion in the companion to this case, D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990) (en banc), we reiterated that the guiding principle in determining whether a settlement agreement between divorcing parties should survive the entry of their divorce decree or, alternatively, be considered merged into the decree and subject to modification as a court order, is that the intent of the parties on this issue should govern. Id., 390 Pa.Superior Ct. at 515, 568 A.2d at 1292 (citing Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988)). Thus, in D’Huy we held that where the parties to a settlement agreement have clearly and unambiguously expressed in their agreement an intent that their agreement will survive the entry of the divorce decree, and yet the decree itself says that the agreement is incorporated into the decree, the agreement survives and is not merged. It remains an enforceable contract, not subject to unilateral modification as a court order.

Applying this principle to the instant facts, we have no difficulty in concluding that the parties intended the Agreement to survive their divorce and that the child support provision would not be modifiable downward on a showing of changed circumstances like those alleged by husband. This intent is unambiguously expressed in the various provisions quoted above, both when read separately and in the context of the entire Agreement. The parties agreed that the Agreement was their entire agreement, intended to be the final and binding resolution of all economic claims between them at present and in the future. It specifically states that it shall “continue in full force and effect after ... [the] final decree in divorce” and will “remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement.” The child support provision contains its own termination provision. The support obligation of husband as provided in the Agreement is to terminate only upon emancipation of the children.

Reading the Agreement as a whole, we further find evidence that where the parties wished to permit court modification of their Agreement, they specifically so stated. For example, as to custody and visitation, the parties expressly agreed that those terms would be subject to review by the court under the laws of this Commonwealth. There is no such language relative to child support. Moreover, the Agreement contemplated that wife might return to work. If she did, the parties agreed that she would provide medical coverage for the parties’ child to the extent that she had coverage through her employment. There is no indication that the parties also intended husband’s support obligation to be modifiable upon wife’s employment, as it might be if the Agreement was subject to modification by the court.

Standing against all of the foregoing evidence that the parties did not intend to permit court modification there is only the language of both the Agreement and the divorce decree providing for incorporation of the Agreement into the decree. However, the parties’ intent in agreeing to this is also clear. By incorporation the parties intended only that the Agreement would remain enforceable by the court after divorce. This is the only reasonable interpretation to be accorded to paragraph 4, quoted above, which provides that if the parties are divorced and “orders anticipating the enforcement of this Agreement are included in the decree”, i.e. if the decree incorporates the Agreement, then the court shall retain jurisdiction over the Agreement.

We find no ambiguity. The Agreement survives as an enforceable contract. Thus, the trial court did not err in refusing modification downward of husband’s support obligation.

Affirmed.

Beck, J.’s majority Opinion is joined by CIRILLO, President Judge, and CAVANAUGH and ROWLEY, JJ.

TAMILIA, J., files a concurring statement.

BROSKY, J., files a dissenting opinion and is joined by POPOVICH, J.

M0NTEMUR0, J., files a dissenting opinion and is joined by JOHNSON, J.

JOHNSON, J., files a dissenting opinion and is joined by MONTEMURO, J.

TAMILIA, Judge,

concurring.

I concur in the result and would find that this case, as D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (Dissenting Statement in Support of Remand, Tamilia, J., 1990), was improvidently granted and would remand it to the panel with instructions that it be affirmed in compliance with Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988).

BROSKY, Judge,

dissenting.

What has troubled me since the emergence of disputes and appeals regarding the ever increasing number of agreements like the one presented here is the conclusion that seems almost automatically reached upon a finding that the agreement was meant to survive the entry of a divorce decree, this conclusion being that a specification regarding support is thus rendered non-modifiable simply by its inclusion in the agreement. I don't believe the courts should be so quick to conclude that the support obligation is rendered non-modifiable by inclusion in a surviving agreement.

The majority indicates that the governing factor in the determination is intent of the parties as to modification. (Majority Opinion, p. 530.) In fact, the majority states:

Applying this principle to the instant facts, we have no difficulty in concluding that the parties intended the Agreement to survive their divorce and that the child support provision would not be modifiable downward on a showing of changed circumstances.

I can agree with the majority that the parties likely intended that the agreement be in force after the divorce. The rather easy conclusion reached regarding modifiability comes as a surprise to me, especially when my reading of the clause in question reveals absolutely no mention whatsoever of modifiability.

The clause neither expressly calls for, nor expressly rejects modifiability. Yet, in this contractual climate, the majority states, rather boldly I believe, that “[t]his intent [non-modifiability] is unambiguously expressed in the various provisions quoted above, both when read separately and in the context of the entire agreement.” Perhaps this is what is meant when it is said that what is crystal clear to one is opaque to another.

When parties embark upon settling economic claims by agreement they are, more than anything else, substituting arms length negotiation for litigation in court. By negotiation they can derive a settlement they can tolerate without subjecting themselves to the potential risk of a far less desirable award of the court. Certainly, there is benefit in negotiation, to both the payor and payee of support.

It escapes me why it should automatically be concluded that when parties sit down to negotiate the economic issues in lieu of litigation they intend to materially alter the nature of the claim being negotiated. That is, support obligations are generally modifiable upon a showing of changed circumstances. If the parties sit down to negotiate an appropriate sum for support why is it automatically assumed that they wish to change the modifiable nature of the obligation? Isn’t it more likely that they have the same generally accepted concept of support in mind and are merely negotiating an acceptable support obligation rather than accepting the risk of an adverse award by the court, or perhaps, are attempting to limit the litigation costs, which, as we are all aware, can amount to substantial sums rather quickly.

Courts appear to routinely conclude that the negotiated sum cannot be modified unless explicitly stated so in the agreement, even though the more readily conceived concept of support is that it is a modifiable obligation. This is the more readily conceived concept of support if for no other reason than that is what it generally is in common experience, unless of course, the modifiable nature is bargained away. This approach is, therefore, very biased against the party agreeing to pay support.

Bias can be seen in this very case. Although, the clause says absolutely nothing about modifiability, the majority concludes that it is unambiguously non-modifiable. I believe this conclusion is suspect for several reasons. First of all, the majority finds this unambiguous intent in part, from the absence of modification language, even though it is difficult to conclude, on a logical level, that the absence of language on modifiability indicates a positive intent to have a non-modifiable obligation. It seems rather absurd to assert that parties would choose to express a conscious intent to provide a non-modifiable obligation through a mechanism of including language in a non-related clause and excluding it in the clause of import.

If the parties had a true conscious intent to establish a non-modifiable obligation it would seem that they would have indicated so explicitly, rather than relating this through some convoluted inclusion/exclusion approach. This would seem even more likely as the subject agreement became more comprehensive, for then there would be even greater reason to assume that if the parties possessed such an intent it would have been included in the document. Rather, the absence of the language more probably indicates that it was not given a great deal of thought either way. Of course, if modifiability was not really within the contemplation of the parties at all, then we have another question or issue altogether and it would be patently incorrect to contend that the intent was unambiguously expressed.

Secondly, when one considers the very significant difference between classifying the support obligation modifiable or non-modifiable, it becomes even more suspect that the parties would indicate their intent to have a non-modifiable obligation by simply neglecting to include such language in the clause in question. The majority indicates that intent can be deduced from the failure to include a modification provision in the support clause when it is considered that comments regarding court review are included in the custody and visitation clause. However, the mere fact that an issue was contemplated as to one aspect of the agreement does not necessarily mean that it was contemplated as to another aspect of the agreement. There are many things going on in the lives of those going through divorce proceedings which could lead to distraction or, perhaps, disrupt the normal thought processes. Furthermore, as already discussed above, it is logically faulty to infer positive intent from a non-act. I look to the same circumstance and wonder why, if the parties had truly contemplated the issue and had a positive intent on the matter, the parties did not express it in the support clause when they did elsewhere in the agreement.

It seems to me that if they took the trouble to express their intent on court review or modifiability as to one aspect of the agreement, custody and visitation, they would do so as to another aspect of the agreement, support, as well. Assuming, of course, that it was their intent to do so. Consequently, I find it more plausible that the absence of modification language in the support clause signifies a lack of consideration by the parties of the modification issue in the support context than a conscious understanding of the parties that the obligation would be non-modifiable.

Returning to the point that modifiability or non-modifiability of the obligation is a significant issue, and can have drastic consequences to the individual assuming the obligation, I am further skeptical that appellant would have knowingly and gratuitously agreed to a non-modifiable obligation without gaining something in return. If the obligation is deemed non-modifiable, appellant would have been agreeing to an obligation beyond that which could have been imposed upon him by law. It is logical to assume that he would not have done such a potentially risky act without gaining something in return. However, the agreement does not explicitly indicate that he received anything in return for such a concession and it would likely require parole evidence to establish that he did.

Thirdly, the majority’s attempts to divine intent from the parties usage of terms such as merger and incorporation is likewise unconvincing simply because up until just very recently this very court had been struggling with the meaning and effect of these terms. It is my view that nobody, including the members of the bar or the courts, have really understood the significance of these terms, if for no other reason than because there was no consensus opinion on their effect. This is the very reason several of these cases have been considered by this court sitting en banc. I find it extremely unlikely that the attorneys, much less the parties, completely understood what significance this terminology would be given or signified.

This brings me to what I feel are the key points in this case. First, I suspect that in many of these cases where the language is silent as to modifiability there has, in fact, been no conscious contemplation or negotiation of the point by the parties. This, I believe, is a reasonably inferred conclusion from the fact that the agreement is silent on such a potentially very important issue. Further, I believe that my colleagues in the majority, if put to the task, would likely concede this point. After all, their own opinion, when all is said and done, does not really find an explicit intent on modification, their conclusion is reached through inference and deduction.

Second, we need to establish how these clauses should be dealt with in light of the fact that, in all probability, there has been either no contemplation or negotiation of the modification issue. Third, and perhaps more importantly, it would seem manifestly unfair to construe the obligation as non-modifiable unless it was, in fact, knowingly agreed to.

A change of circumstances can transform an affordable support obligation into a tremendous financial burden, and a finding of non-modifiability can transform an equitable obligation into a fast lane to financial ruin. Particularly when it is considered that court ordered support obligations are modifiable under appropriate circumstances, I do not believe non-modifiable obligations should be imposed by judicial construction of a separation agreement, but only upon a finding that it was knowingly and voluntarily assumed or bargained for. Otherwise, we are simply imposing an unconscionable term upon an unsuspecting party to the agreement. This, I fear, may be what has been transpiring, as courts seem to have been inclined to view the obligation as non-modifiable simply because it has been expressed in a written contract as opposed to a court order. Of course, now that the recent en banc decisions have established that intent of the parties is to be the deciding factor, we can concentrate on that issue. I believe we must be careful not to read in intent where it is not present. I would be reluctant to find a form of implied or implicit intent favoring non-modifiability.

In light of the above discussion, I would be considerably more comfortable in considering agreements silent on modification ambiguous as to that point and allowing parole evidence on this issue, than I would be in engaging in a mind reading demonstration and pretending that certain inclusions and/or exclusions of language in other clauses somehow signify an intent as to modifiability. In this context, evidence of whether or not modification was contemplated, discussed or bargained for could be properly considered. If, in consideration of parole evidence, it is found that, in fact, the support obligation was understood to be a non-modifiable obligation then it could be given that effect.

Where it appears or is determined that modifiability of a support obligation was neither discussed nor negotiated or where it appears that non-modifiability was not consciously agreed to, I would construe such a clause as modifiable since support is generally a modifiable obligation and thus, the more reasonable nature to impute to the agreement as the parties understanding.

Thus, in the present case, I would remand for the allowance of parole evidence on the issue of modifiability and a redetermination of the issue in light of this opinion.

POPOVICH, J., joins in this dissenting opinion.

MONTEMURO, Judge,

dissenting:

I join Judge Johnson’s dissenting opinion. I write separately to elaborate on why Section 401.1(b) of the Divorce Code should be applied to this case.

Section 401.1(b) provides that “[a] provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.” The 1988 amendments to the Divorce Code, including Section 401.1(b), became effective immediately upon passage on February 12, 1988.

Section 401.1(b) affects the jurisdiction of a court to modify an agreement pertaining to child support, visitation, or custody. The existence of an agreement is a necessary condition for application of Section 401.1(b). There is no evidence of legislative intent that the date of the child support agreement shall bear on the modifiability of the agreement. Section 401.1(b) contains no language restricting its application to agreements executed after the effective date of the amendment.

Further, in discussing the comprehensive 1988 amendments to the Divorce Code prior to the vote, members of the House of Representatives indicated their understanding that the amendments would be applied to all cases pending before the courts. In response to a proposal by Representative Hagarty that the new reduced 2-year waiting period for a “unilateral” divorce should not be retroactively applied but instead should be applied only to final separations beginning after the effective date of the amendments, the following comments were made:

Mr. LASHINGER [in opposition to the Hagarty amendment]: The issue that is in front of us now is whether we are going to take the provisions of SB 409 [the 1988 amendments], which in some cases are procedural changes and some are substantive changes, and have them apply to all of the divorces that are in the mill, where a complaint has been filed.
What we did in the Judiciary Committee was to make the decision, as we made the decision in 1979 in this General Assembly under the 1980 Divorce Code, that parties should be prepared, if a complaint has been filed in a divorce action, to face the realities of what the Divorce Code will hold at that time. We made a decision to say that it should apply to all of those cases that are not just filed subsequent to this but also to those cases that are pending____
Let me point out what I think might be the most important thing, however. You are telling that person who has filed the complaint that all of the other provisions — gifts, permanent alimony, all of the other items that we substantively changed — apply. So in most cases, if a man has filed a complaint, he is going to be bound ... the petitioner will have filed the complaint, the new alimony section will apply to that male petitioner, the new equitable distribution sections will apply to that petitioner; however, what Representative Hagarty is saying is the separation period should not apply____
Mr. FREIND [in support of the Hagarty amendment]:
I think what you have to remember is that the rest of the bill that is retroactive is really dealing only in the financial area____

Legislative Journal-House, January 26, 1988, p. 68-70. While I recognize that, as a general rule, remarks made by individual legislators on the floor of the House or Senate should not be relied upon in ascertaining the meaning of a statute, see McCormick v. Columbus Conveyer Company, 522 Pa. 520, 564 A.2d 907 (1989), I refer to these remarks to show a common understanding among our state legislators that the provisions of the Divorce Code are to be applied in both pending and future cases.

It would be unreasonable to restrict the applicability of Section 401.1(b) to those child support agreements executed after the effective date of the amendment. In enacting Section 401.1(b), our legislature intended to alleviate the confusion in the courts regarding the circumstances in which a child support agreement may be modified. Section 401.1(b) provides a uniform rule to resolve this uncertainty, and, presumably, to ensure that matters regarding children are dealt with in an equitable fashion. To delay application of this clear rule until child-related agreements executed after February 12, 1988 are sought to be modified would prolong the inequity the legislature sought to remedy. Cf. Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982) (holding that definition of marital property set forth in Section 401(e) of the Divorce Code includes property acquired before the effective date of the Code). All of those parties who executed agreements prior to February 12, 1988, and the children who are the subject of the agreements, would be deprived of the benefit of Section 401.1(b).

In light of the remedial purposes of the amendment and the stated objectives of the Divorce Code to “[ejffectuate economic justice between parties who are divorced” and to “insure a fair and just determination ... of their property rights,” I interpret Section 401.1(b) to apply to child support agreements executed both before and after the effective date of the amendment.

I would vacate the order of the trial court and remand this matter for further proceedings consistent with Section 401.1(b) of the Divorce Code.

JOHNSON, J., joins in this dissenting opinion.

JOHNSON, Judge,

dissenting.

The majority refuses to consider the applicability of the 1988 amendments to the Divorce Code, citing as the reason for not reaching their applicability the fact that “neither party raised the issue on appeal” and the assertion that “this case is an inappropriate vehicle for deciding such an important issue.” I must dissent.

This court entered an order on May 11, 1989 which listed this case for reargument before an en banc court. The sole issue which would have warranted the attention of the en banc court was whether section 401.1 of the Divorce Code, 23 P.S. § 401.1 (as amended by the Act of February 12, 1988, P.L. 66, No. 13, § 2) (Act No. 13) should be retroactively applied to the agreement at issue here. Since the majority cites no authority for its present belief that this is an inappropriate vehicle for considering the retroactive effect of § 401.1, I find myself unable to join their position.

Since the filing of the notice of appeal in this case on March 17, 1988, opinions have been filed in this court which cast doubt upon the interpretation and applicability of newly enacted § 401.1. See, Knorr v. Knorr, 380 Pa.Super. 11, 550 A.2d 1338 (1988); Sonder v. Sander, 378 Pa.Super. 474, 549 A.2d 155 (1988); Dechter v. Kaskey, 379 Pa.Super. 45, 549 A.2d 588 (1988); Hutchinson v. Hutchinson, 379 Pa.Super, 247, 549 A.2d 999 (1988); Dolan v. Dolan, 378 Pa.Super. 321, 548 A.2d 632 (1988). Given the divergence in interpretation of whether the new section applies retroactively, the acceptance by the full court of the panel’s recommendation to grant en banc review in this case continues to be sound.

In their supplemental briefs, both parties to this appeal addressed on the merits the applicability of § 401.1 to the present controversy. The issue is properly before this court for review. Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 252, 260, n. 8, 404 A.2d 398, 402, n. 8 (1978). There is some reason to believe that the legislative passage of newly enacted § 401.1 resulted from a mutual desire by significant, responsible segments of the family practice bar and by legislators to remove some of the confusion and uncertainty which had arisen in the area of marital agreements and their modifiability. I believe that a strong public interest in securing clarity and predictability in this area further confirms the wisdom initially shown by our court in granting en banc review and overshadows any doubts concerning issue preservation or preclusion. Cf., Reilly by Reilly v. Southeastern Pennsylvania Transportation, 507 Pa. 204, 224, 489 A.2d 1291, 1301 (1985); Murphy v. Bradley, 113 Pa.Cmwlth. 387, 391-392, 537 A.2d 917, 919 (1988).

I therefore must dissent from the majority’s refusal to consider the applicability and retroactivity of 23 P.S. § 401.1.

The substantive issue on this appeal is whether an agreement relating to child support and custody is subject to modification upon a showing of changed circumstances. For me, the answer is found in § 401.1 of the Divorce Code, which provides:

Section 401.1 Effect of agreement between parties
(a) A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this act to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
(b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances. (Emphasis added].

The majority revisits the question of whether incorporation of the settlement agreement into a divorce decree results in the agreement losing its independent effect, concludes on the basis of the parties’ intent that in this case it does not, and finds the agreement “not subject to unilateral modification as a court order.” At 299. Judge Brosky, in dissent, raises troublesome questions regarding our past attempts at resolving these issues and concludes that this matter should be returned to the trial court for allowance of parole evidence on the issue of modifiability. One need only review the careful analysis of prior case law undertaken by the most distinguished trial judge, the Honorable Eugene Strassburger, to appreciate the timeliness and need for Act No. 13.

The legislature has answered the question which has given this court so much trouble and caused so much consternation within the family practice bar. Act No. 13 renders further judicial analysis of prior court decisions in this area inappropriate and unnecessary. The learned trial judge could not have been aware of Act No. 13 when he rendered his decision, since it was adopted on the very day that the defendant/appellant’s exceptions were dismissed. I have no difficulty in finding Act No. 13 applicable to this appeal. Since, under § 401.1(b), provisions regarding child support and custody are modifiable upon a showing of changed circumstances, I would vacate the order of the trial court and remand this matter for further proceedings consistent with Section 401.1(b) of the Divorce Code.

MONTEMURO, J., joins in this dissenting opinion.

      . We do not reach the question of whether the amendments to the Divorce Code concerning merger/incorporation, effective February 12, 1988, should be retroactively applied to this case. Although we requested supplemental briefing on this issue to the court en banc, on further consideration we find that since neither party raised the issue on appeal, this case is an inappropriate vehicle for deciding such an important issue.

      . We note that although the Agreement refers to “children" at various places, the parties have only one child.

      . Husband also argues that the divorce decree constitutes a modification of the Agreement making the latter modifiable by the court. This argument may be summarily dismissed. The decree cannot be construed as a modification of the Agreement simply because it does not change any term of the Agreement. The decree is perfectly consistent with the Agreement — both say that the Agreement is incorporated into the decree. We hold that, under the circumstances of this case, incorporation does not result in merger.

      . Of course, if there was not an express understanding as to a certain matter, contract law calls for the "reasonable expectation” of the parties to prevail. I would contend that in similar circumstances as those presented here, and in the absence of countervailing evidence, the reasonable expectation of the parties should be concluded to be a modifiable obligation because that is the general nature of support obligations in common experience, and, thus, the most reasonable expectation to impute as the parties understanding.

      . For the reasons stated by Judge Johnson, I believe that the issue of the applicability of Section 401.1(b) is properly before this Court.

      . There was no argument or question that the amendments were to be applied immediately in all cases, pending and future. The very reason that Rep. Hagarty proposed her provision which would have made the new 2-year waiting period applicable only in future cases was to avoid this general rule of retroactive application of the Divorce Code amendments.


source: Caselaw Access Project

author:
CAVANAUGH, Judge:
      POPOVICH, Judge, BECK, Judge,

license: Public Domain

text:
    568 A.2d 1306
    COMMONWEALTH of Pennsylvania, Appellee, v. William J. KRISTON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1989.
    Filed Jan. 24, 1990.

      Albert M. Sardella, West Chester, for appellant.
    James P. MacElree, II, Dist. Atty., West Chester, for Com., appellee.

      Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellee.
    Leonard Sosnov, Philadelphia, amicus curiae.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   CAVANAUGH, Judge:

The issue in this case is whether the appellant, William J. Kriston, Jr., was undergoing “imprisonment” within the meaning of 75 Pa.C.S. § 3731(e) when he participated in Chester County’s electronic home monitoring program.

In February, 1987, the appellant was charged with his second offense of driving under the influence of alcohol in violation of 75 Pa.C.S. § 3731, to which he entered a guilty plea. He was sentenced to a minimum mandatory term of imprisonment of thirty days to twenty-three months. On June 15, 1987, the appellant commenced serving his sentence at the Chester County Prison Farm. On June 24, 1987, without the knowledge or approval of the sentencing court, the appellant was admitted into the electronic home monitoring program and was allowed by the warden to serve the remainder of his sentence in that program. The appellant left prison and returned to his home.

In July, 1987, the appellant applied for parole and the Commonwealth opposed the motion as he had served only ten days confined in prison. Following a hearing, the court below by Gawthrop, J. denied the petition for parole and directed that the appellant serve the remaining twenty days of his sentence in prison. The appellant's petition for reconsideration was denied and he has appealed to this court.

75 Pa.C.S. § 3731(e) provides for a “minimum term of imprisonment” where the defendant has previously been convicted of driving under the influence, as in this case. The statute refers to mandatory “imprisonment”. We must construe the language of the statute according to common and ordinary usage. Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). The ordinary meaning of “imprisonment” is the lawful confinement of an individual to a correctional or similar institution. Even where partial confinement is involved the statute provides: “In imposing a sentence involving partial confinement, the court shall specify at the time of sentencing the length of the term during which the defendant is to be partially confined, which term may not exceed the maximum term for which he could be totally confined, and whether the confinement shall commence in a correctional or other appropriate institution.” The statute goes on to note that the “court may in its order grant the defendant the privilege of leaving the institution during necessary and reasonable hours for any of the following purposes: (1) To work at his employment____” 42 Pa.C.S. § 9755(a), (c). (Emphasis added).

Participation in the electronic home monitoring program does not constitute “imprisonment” in an institution. The court below clearly did not abuse its discretion in refusing to grant the defendant credit towards parole for the time he spent at home in the program, as he was not imprisoned during that time. It does not matter whether the warden exceeded his authority in placing the defendant in the program, or acted under a mistaken belief that the electronic home monitoring system constituted “imprison-m©nt”. The fact remains that the defendant was not in prison while he was at home with an electronic device attached to his person, and the statute mandates a minimum term of imprisonment for the offense of which he was convicted. Neither a court nor a warden of the prison has authority to rewrite the statute.

Our Supreme Court, in Commonwealth v. Sojourner, 513 Pa. 36, 43 at N. 5, 518 A.2d 1145, 1148 at N. 5 (1986), held that a mandatory minimum sentence for driving under the influence meant that “some term of incarceration is to be imposed even for first offenses.” (Emphasis added). The court held that the trial court erred in not imposing a mandatory minimum sentence of imprisonment for a first-time offender. A fortiori, a second-time offender, as in this case, must necessarily serve the minimum sentence in prison. In Commonwealth v. Waters, 361 Pa.Super. 154, 522 A.2d 60 (1987), we held that § 3731(e) provided for a minimum term of imprisonment, and “the statute itself explicitly states the sentences specified are ‘mandatory’ 361 Pa.Super. at 158, 522 A.2d at 62.

In Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987), the defendant was convicted of driving under the influence of alcohol or a controlled substance and had a previous conviction. He was sentenced to not less than forty-eight hours to six months in prison with alternate housing at Arc House. The court below denied the Commonwealth’s petition to modify the sentence to conform with the statute and we reversed, stating at 365 Pa.Super. 15, 528 A.2d 992:

The prosecution contends that on appeal that appellee should have been sentenced to a mandatory minimum sentence of thirty (30) days in prison because appellee had been convicted previously of driving under the influence. We agree. (Emphasis added.)

The appellant’s reliance on Jacobs v. Robinson, 49 Pa. Cmwwlth. 194, 410 A.2d 959 (1980) is misplaced. In that case, Wayne Jacobs was sentenced to imprisonment for a term of two to five years. He was inadvertently released from prison because of a clerical error in recording his sentence. When the error was discovered, a warrant for his arrest was issued based on a charge of escape. Jacobs was ultimately taken into custody and the charge of escape was dismissed. He was, however, denied credit for the time that he was at large in the community and under the supervision of the Probation Department. On appeal, the Commonwealth Court réversed and directed that he be given credit towards his sentence for the time that he was away from prison. The facts of that case are readily distinguishable. In the case before us, the appellant was sentenced to imprisonment for at least thirty days. The appellant applied for release in the electronic home monitoring program, which was granted by the warden, without the approval or knowledge of the sentencing judge. Placement in the program was not due to a clerical error, but was accomplished by the warden who had no authority to change the sentence imposed by the court. In addition, Jacobs, supra, did not deal with a statute which mandated imprisonment, and we may not modify a legislative enactment.

The court below properly concluded that the time in the electronic home monitoring program did not constitute imprisonment, and accordingly acted within its discretion in refusing to grant parole to the appellant.

Order affirmed.

POPOVICH and BECK, JJ., file dissenting opinions.

CIRILLO, President Judge, joins dissenting opinion by POPOVICH, J.

POPOVICH, Judge,

dissenting:

Once upon a time, a man’s home was his castle, but now, through the advent of electric home confinement, prison authorities have the technology to transform a man’s home into his dungeon. While confinement within one’s home is most certainly preferable to incarceration in a jail, I am convinced that home confinement, enhanced by the imposition of stringent restraints on an offender’s liberty, satisfies the definition of “imprisonment” under 75 Pa.C.S.A. § 3731 (Driving under the influence of alcohol or controlled substance). Moreover, assuming arguendo that electronic home confinement does not constitute imprisonment, I, nevertheless, would credit appellant with the 26 days he spent on electronic home confinement and remand for a new parole hearing. See Jacobs v. Robinson, 49 Pa. Cmwlth. 194, 410 A.2d 959 (1980).

When appellant applied for parole, the Commonwealth opposed the motion because appellant had served only ten days in prison with the remainder of his incarceration spent at his home on electronic confinement. On July 20,1987, a hearing was held before the sentencing court regarding appellant’s parole petition. The court, following its prior decision in Commonwealth v. Anthony, 36 Ches.Co.Rep. 72, 46 Pa.D. & C.3d 298 (1987), reasoned that electronic home confinement did not qualify as imprisonment within the meaning of 75 Pa.C.S.A. § 3731(e). Therefore, the court denied parole and directed appellant serve the remaining twenty days of his mandatory thirty day sentence in the Chester County Prison. Appellant’s petition for reconsideration was denied, and he was released on bail pending the outcome of this appeal. The Majority, in affirming the decision of the court below, essentially adopted the lower court’s reasoning that electronic home confinement is not “imprisonment” since “imprisonment” requires confinement to be in a “correctional or similar institution.”

Pennsylvania’s DUI statute provides as a penalty for two-time offenders a “minimum term of imprisonment of ... not less than 30 days ...” 75 Pa.C.S.A. § 3731(e)(l)(ii). Black’s Law Dictionary, 5 Ed., 1979, defines “imprisonment” as follows:

The act of putting or confining a man in prison. The restraint of a man’s personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion. It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars) as by verbal compulsion and the display of available force. Every confinement of the person is an “imprisonment” whether it be in a prison or in a private house, or even by forcibly detaining one in the public streets. Any unlawful exercise or show of force by which person is compelled to remain where he does not wish to be McKendree v. Christy, 29 Ill.App.2d 195, 172 N.E.2d 380, 381 (emphasis added).

Instantly, appellant was under “house arrest:” his whereabouts were continuously monitored electronically; he was subjected to rigorous drug testing; he submitted to unannounced visits from prison officials; and, if he ventured more than one hundred feet from his telephone, he faced the very real possibility that escape charges would be filed. Certainly, appellant’s situation qualifies as “imprisonment” pursuant to Black’s definition.

Further, on prior occasions, we have found that confinement of a DUI offender in an alcohol rehabilitation center qualifies as “imprisonment” under 75 Pa.C.S.A. § 3731(e). See Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979) (alcohol rehabilitation); Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979) (alcohol rehabilitation); Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967) (mental institution). Our Supreme Court has refused to adopt a per se rule concerning credit for time served in a rehabilitation program while on parole. Instead, our high Court has ruled that interpreting “custody” must be done on a case by case basis, based on the extent of the restraints placed upon the individual’s liberty. Cox v. Com., Bd. of Probation and Parole, 507 Pa. 614, 493 A.2d 680, 684 n. 7 (1985); see also Commonwealth v. Cappiello, 284 Pa.Super. 476, 426 A.2d 146 (1981) (remanded for a hearing to determine the extent of residential custody). Presently, I am convinced that appellant’s liberty was restrained in an amount equal to or surpassing that of rehabilitation programs which are routinely afforded the status of “imprisonment.”

The Majority determined “imprisonment” requires that the restraint of liberty must occur in an “institution,” and, since appellant’s home is not an “institution” per se, appellant was not imprisoned. For this analysis, the Majority relies on the provisions of the sentencing code, 42 Pa.C.S.A. § 9755, which require confinement in a “correctional or other appropriate institution.” To be sure, appellant was not committed to an “institution” in the traditional sense. However, the simple fact that the appellant was not incarcerated in an institution with high walls, iron bars and armed guards (or white-coated orderlies, nurses and physicians) should not prevent appellant from receiving credit for time served pursuant to 42 Pa.C.S.A. § 9760. I believe that the electronic home monitoring system has in fact converted appellant’s home into an “appropriate institution.”

In support of its holding that appellant must serve his mandatory minimum sentence in prison, the Majority cites Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986), for the proposition that a “second-time offender, as in this case, must necessarily serve the minimum sentence in prison." (emphasis added). However, Sojourner does not address the issue of whether a minimum sentence must be served in what is traditionally considered a “prison.” Rather, Sojourner holds that it is an abuse of discretion not to impose the minimum mandatory sentence; the opinion simply does not address the issue of where that sentence must be served. Instantly, there is no dispute that the sentence imposed was correct; the only question is whether the location where the sentence was served satisfies the requirements of 75 Pa.C.S.A. § 3731. Likewise, Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987), addressed the question of whether the correct minimum sentence was imposed, not the question of whether the sentence was served in the proper location.

Upon review, I am convinced that the stringent restraints placed upon appellant’s liberty are sufficient to qualify his situation as “imprisonment,” thus meriting credit for time served in electronic home confinement. In fact, I believe that the electronic home confinement program, in combination with the threat of escape charges, alters the very nature of the “home” to that of an “other appropriate institution” under 42 Pa.C.S.A. § 9755.

Moreover, regardless of whether appellant was imprisoned during his home confinement, I still am convinced that he is legally entitled to credit for the time he served on electronic home confinement pursuant to Jacobs v. Robinson, 49 Pa.Cmwlth. 194, 410 A.2d 959 (1980).

The Majority attempts to distinguish Jacobs, supra, on the ground that placement of appellant on electronic home confinement was “accomplished by the warden who had no authority to change the sentence imposed by the court,” rather than by clerical error as occurred in Jacobs, supra. This is most certainly a distinction without a difference. In both cases, it was error on the part of prison officials which allowed the release of the prisoners.

In Jacobs v. Robinson, supra, the Commonwealth Court ruled:

[Petitioner cannot be classified as an escapee upon his inadvertent release by prison authorities. Furthermore, a prisoner cannot be compelled to serve a sentence in installments and has a right to serve his sentence continuously. Robinson v. Department of Justice, 32 Pa. Cmwlth. 77, 377 A.2d 1277 (1977). Since the charge of escape upon which the warrant of arrest was issued was dismissed, we must credit the petitioner with the time he was under the supervision of the Probation Department of Philadelphia County. See Adams v. Board of Probation and Parole, 39 Pa.Cmwlth. 524, 395 A.2d 1035 (1979).
Therefore, we will grant summary judgment in petitioner’s favor and order the Bureau of Corrections to recompute his sentence, crediting the time from September 14, 1977 to December 16, 1978 to the sentence imposed April 19, 1977 and made effective March 24, 1977.

Jacobs v. Robinson, 410 A.2d at 960.

Following the Commonwealth Court’s lead in Jacobs v. Robinson, supra, I would direct the Chester County Court of Common Pleas to credit appellant with the time he served while on electronic home confinement. Clearly, appellant’s case is more compelling than that of Wayne Jacobs. Rather than benefit from a fortuitous clerical error, appellant voluntarily applied for the home confinement program upon the reasonable belief (created by assurances of prison officials) that the time spent in the program would be credited toward his sentence. While in the electronic home confinement program, appellant was subjected to far greater supervision than Wayne Jacobs who was merely on parole. Since appellant has the same right as Wayne Jacobs to serve his sentence continuously, I conclude that it was error not to credit the appellant with the time he served on electronic home confinement under the supervision of the Chester County Prison system.

Accordingly, I would reverse the decision of the lower court and remand for a new parole hearing, directing the lower court to credit appellant with the time he served in the electronic home confinement program.

CIRILLO, President Judge, joins dissenting opinion by POPOVICH, J.

BECK, Judge,

dissenting:

Although I agree with the majority that electronic home monitoring is not “imprisonment” as contemplated by the legislature in its enactment of 75 Pa.Cons.Stat.Ann. § 3731(e), which mandates a minimum term of imprisonment for recidivist drunk drivers, I nevertheless would find that in the instant case both case law and notions of fundamental fairness demand reversal of the lower court’s decision. Therefore, I respectfully dissent.

A review of the legislative history of the sentencing provisions of the laws pertaining to drunk driving compels the conclusion that in enacting the mandatory sentencing provisions in section 3731(e) the legislature intended to impose severe penalties for repeat offenders. This was done in order to send a clear and urgent message to those who continue to drive on the Commonwealth’s roadways under the influence of alcohol. Therefore, the statute provides that those convicted of drunk driving more than once in a seven year period must serve a minimum of 30 days imprisonment Both the plain meaning of the statutory language and the legislative debate and reports accompanying this enactment make plain that what was contemplated was a period of confinement in a prison or similar institution. This reading is consistent with the obvious legislative intent to impose sanctions which would both punish recidivist drunk drivers and deter those inclined to indulge in this fatal behavior in the future. I would decline to reinterpret the term “imprisonment” to allow it to encompass electronic home monitoring or similar modes of “house arrest”. In my view, doing so exceeds the proper bounds of judicial action and usurps the legislature’s prerogative. Until such time as the legislature acts to refine the statutory definition of “imprisonment” within the terms of the drunk driving laws, I would hold that electronic home monitoring does not meet the requirements of the statute.

Having stated this, however, it is also plain that the law requires us to grant this defendant credit for the time he served participating in Chester County’s electronic home monitoring program. I agree with my dissenting colleague, Judge Popovich, that, under the circumstances of this case, we should reverse based on the reasoning of the Commonwealth Court’s decision in Jacobs v. Robinson, 49 Pa. Commw. 194, 410 A.2d 959 (1980). In Jacobs, the Commonwealth Court concluded that a defendant must receive credit for the time spent out of prison when his inadvertent release was the product of the mistaken actions of the prison authorities. This holding was based on the principle that a defendant is entitled to serve his sentence continuously unless the interruption was caused by his own wrongdoing, i.e., an escape from imprisonment or a violation of release conditions. Since the prisoner’s release in Jacobs was due to administrative error by the prison authorities, the Court reasoned that he could not be classified as an escapee and therefore was entitled to continue to serve his sentence with credit given for the time he was at liberty.

Appellant Kriston’s case is even more compelling than that of the appellant in Jacobs. Here appellant was released by the warden who, first, was acting under apparent authority to do so and, second, assured appellant that the time spent in electronic home confinement would apply towards the serving of his minimum sentence. The inherent unfairness of denying appellant credit for time served under these circumstances is inescapable, whatever this court’s conclusion might be regarding the propriety of electronic home confinement as “imprisonment”. Surely this defendant should not have to bear the burden of the warden’s overreaching, when all parties were acting in genuine, albeit mistaken, good faith. Therefore, for the foregoing reasons, I would remand this case to the lower court for a new parole hearing, directing the lower court to include the time spent in electronic home confinement when making the parole eligibility determination.

      . 75 Pa.C.S. § 3731(e) provides in pertinent part:
      75 Pa.C.S.A. § 3731(e) Penalty.—
      (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
      (ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
      Under the electronic home monitoring program, the defendant must wear an electronic device on his person which sounds an alarm if he ventures more than one hundred feet from his telephone which is integrated into the system.

      . We also note that in our recent decision in Commonwealth v. Conahan, 388 Pa.Super. 369, 565 A.2d 798 (1989) we held that time served in an in-patient alcohol treatment program did not constitute service of a statutorily mandated minimum sentence of imprisonment.

      . We do not necessarily agree with the decision of the Commonwealth Court in Jacobs, supra, and would limit its application to the narrow factual situation set forth in that case.

      . As prisons become increasingly overburdened, electronic home confinement programs will become increasingly popular alternatives to the expansion of existing penal facilities and the construction of new institutions. In fact, the need to employ alternate means of imprisonment has already affected the Commonwealth. Consider the following, the Pennsylvania Department of Corrections estimates that by 1993, the state penal system will have an overpopulation of between 10,897 to 12,806 inmates or, in other words, 176 percent to 190 percent of capacity. See "Jail crowding to rise faster than expected”, Harrisburg Patriot, Volume 148, No. 278, Page 1, Col. 4, November 21, 1989. These figures do not account for the recent loss of prison beds due the much publicized prison riots in at the institution at Camp Hill, Pennsylvania.

      . 75 Pa.C.S.A. § 3731(e) Penalty.-
      (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a find of not less than $300 and serve a minimum term of imprisonment of:
      (ii) not less than 30 days if the person has previously been convicted of an offense under this section of of an equivalent offense in this or other jurisdictions within the previous seven years.

      . Under the electronic home confinement program, appellant wore a monitoring device. Another monitoring device was affixed to his telephone. If appellant ventured more than one hundred feet from his telephone, an alarm would sound at the headquarters of the private company which provides the service to the county. The company would then notify the authorities. In addition to the electronic monitoring, appellant was subject to random drug and alcohol testing and received unannounced visits from prison officials.

      . The Majority correctly states that “[w]e must construe the language of the statute according to common and ordinary usage. Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1980)." What could be more representative of the common and ordinary legal usage of a word than the definition given in Black’s Law Dictionary ?

      . The Majority misconstrues the holding in Commonwealth v. Conahan, 388 Pa.Super. 369, 565 A.2d 798 (1989). Conahan does not hold that time served in an inpatient alcohol treatment program does not constitute service of statutorily mandated minimum sentence of imprisonment. Rather, Conahan holds that the trial court abused its discretion when it credited a defendant with time served voluntarily in a inpatient alcohol treatment facility when that hospitalization occurred before an adjudication of guilt and imposition of sentence. In fact, Judge Cirillo’s concurring opinion recognizes that credit can be granted for time spent in a rehabilitation program after conviction and sentencing, and advocates allowing credit for time served after arrest but before conviction and sentencing.

      . As the author of the opinion in Kearns, I stated "[bjecause the second offense occurred within seven years of the prior conviction, the minimum term of imprisonment required under the statute is not less than thirty (30) days in prison.” However, recognizing the vast differences in issue presented in Kearns and the present case, the use of the term "prison” in Kearns is of little, if any, guidance.

      . For additional information concerning electronic home confinement, see Hurwitz, House Arrest: A Critical Analysis of an Intermediate-Level Penal Sanction, 135 U.Pa.L.Rev. 771 (1987), and Ball and Lilly, “The Potential Use of Home Incarceration for Drunken Drivers”, Crime & Delinquency, Vol. 32, No. 2, 224-247 (1986).

      . The grant or denial of parole is a matter of the sentencing court’s discretion which is subject to appellate review under the abuse of discretion standard. Commonwealth v. Romolini, 384 Pa.Super. 117, 557 A.2d 1073, 1077 (1989).

        Cf. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (a prisoner, although released and placed on parole, was in the custody of members of the parole board.)

      . Although, the Majority cites no authority for its determination that the warden was not empowered to place appellant on electronic home confinement, we will assume for the purposes of this issue only that the warden had no authority and, thus, committed error in placing appellant in the home confinement program.

      . We also note that the Attorney General of Pennsylvania, in an Official Opinion, has similarly concluded that a defendant who was paroled by a judge who had no jurisdiction over him because the sentence imposed had a maximum of two years or more is entitled to credit for post-release time spent on parole since he was not an escapee. See Official Opinion No. 1, Pennsylvania Bulletin, Vol. 13, No. 12 at 1104 (March 19, 1983). While Attorney General's opinions are not binding upon the court, they are entitled to great weight. E.g., McDowell v. Good Chevrolet-Cadillac, Inc., 397 Pa. 237, 245, 154 A.2d 497, 501 (1959).

      . Though not directly implicated presently, the 5th Amendment guarantee against double jeopardy would have precluded resentencing of appellant had his sentence been a flat 30 days, rather than 30 days to 23 months. However, as DUI offenders are routinely granted parole after they have served the minimum term, the practical, though not legal, effect of requiring appellant to serve twenty additional days in the county jail would be two punishments for the same offense in violation of the spirit, but not letter, of the 5th Amendment guarantee against double jeopardy. See North Carolina v. Pearce, Simpson v. Rice, 395 U.S. 711, 718-719, 89 S.Ct. 2072, 2076-2077, 23 L.Ed.2d 656 (1969) quoting Ex parte Lange, 18 Wall. 163, 173, 21 L.Ed. 872 ("If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And * * * there has never been any doubt of [this rule’s] entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.”).

      . This conclusion is in accord with this court’s recent opinion in Commonwealth v. Conahan, 388 Pa.Super. 369, 565 A.2d 798 (1989), in which a panel of the court found that a defendant’s voluntary, pre-sentencing participation in an inpatient alcohol treatment program does not constitute "imprisonment” entitling defendant in that case to credit for time served in such a program. The court concluded that such a voluntary, non-compulsory commitment to a treatment center would not be consistent with the clear legislative intent to punish and deter drunk drivers. The court left open the question of whether court-ordered confinement to such a facility pursuant to imposition of sentence would constitute “imprisonment" under the terms of the statute.


author: CERCONE, Judge:

text:
    568 A.2d 1313
    COMMONWEALTH of Pennsylvania v. Jermounte LEATHERBURY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1989.
    Filed Jan. 25, 1990.

      David M. McGlaughlin, Philadelphia, for appellant.
    Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before: CIRILLO, President Judge, and POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. We affirm.

Appellant, a juvenile, was charged with third degree murder, burglary, robbery, and criminal conspiracy in connection with the beating death of a sixty-seven year old man in his residence and removal of money found therein. After entering a plea of not guilty, appellant filed a motion to transfer his case to the juvenile division of the court pursuant to 42 Pa.C.S.A. § 6322, which provides for transfer to the juvenile division in cases in which minors under the age of eighteen are charged with murder. Appellant also filed other pre-trial motions.

On September 27, 1988, the lower court, the Honorable Charles Durham presiding, denied appellant’s motion to decertify the case to juvenile court. Thereafter, appellant entered a negotiated guilty plea to all charges and the court accepted the plea. On the charge of third degree murder, the lower court, the Honorable Robert Latrone presiding, sentenced appellant to a term of imprisonment of ten to twenty years. A consecutive sentence of ten to twenty years was imposed on the robbery count. Sentence was suspended on the remaining two charges. Appellant then filed the instant timely appeal of the judgment of sentence.

On appeal, appellant contends that the lower court erred in failing to grant his motion for decertification to the juvenile division because the lower court lacked jurisdiction to prosecute due to appellant’s asserted amenability to treatment as a juvenile. We note first that a motion to transfer criminal proceedings to juvenile court presents jurisdictional issues which are not waived for appellate purposes. Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975); Commonwealth v. Zoller, 345 Pa.Super. 350, 498 A.2d 436 (1985). Therefore, appellant’s claim is properly before us.

Generally, the prosecution of criminal offenses charged to juvenile offenders is within the exclusive jurisdiction of the juvenile court. 42 Pa.C.S.A. § 6322. Such is not the case with murder. In a murder case involving a juvenile offender, jurisdiction remains with the criminal court, but the case may be transferred to juvenile court if the juvenile is able to show that he is amenable to treatment, supervision, or rehabilitation within the juvenile system. Id.; Commonwealth v. Pyle, supra. Transfer in a murder case is not a matter of right, “and the determination of whether the interests of the state and society require prosecution of murder on an indictment is left to the sound discretion of the common pleas court.” Commonwealth v. Zoller, supra, 345 Pa. at 355, 498 A.2d at 439.

To effectuate a transfer to juvenile court in a murder case, the court must apply and the juvenile must meet the criteria for transfer set forth in 42 Pa.C.S.A. § 6355(a)(4)(iii)(A). Those criteria include the juvenile’s age, mental capacity, maturity, his degree of criminal sophistication, previous record if any, the nature and extent of any prior delinquent history, whether the juvenile can be rehabilitated prior to the expiration of juvenile court jurisdiction, probation or institutional reports if any, the nature and circumstances of the acts for which transfer is sought, and other relevant factors. Id. The burden of proof in a petition for transfer to the juvenile court is on the juvenile offender. Commonwealth v. Pyle, supra; Commonwealth v. Brown, 332 Pa.Super. 35, 480 A.2d 1171 (1984). Where the hearing judge denies a transfer motion, the juvenile, if he is to prevail on appeal, must show a gross abuse of discretion on the part of the hearing judge. Commonwealth v. Brown, supra, 332 Pa.Super. at 40, 480 A.2d at 1174. “Such abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based on partiality, prejudice or ill will.” Id., quoting Commonwealth v. Romeri, 314 Pa.Super. 279, 291, 460 A.2d 1139, 1145, aff'd 504 Pa. 124, 470 A.2d 498 (1983).

In the instant case, at appellant’s decertification hearing, he offered the testimony of two experts. The lower court accurately summarized this testimony as follows:

Roland Lamb [B.A., psychotherapist/family therapist] interviewed the defendant and the defendant’s mother and sister on August 28 and September 7, 1988. He testified before this court that he learned that the defendant had not gone to school beyond the elementary level, had a school record indicating poor attendance [see footnote, infra\ and was illiterate. In Mr. Lamb’s opinion the defendant’s poor home environment required that he be placed in a controlled environment for a long period of time. In his written report, Mr. Lamb elaborated on the inadequacies of defendant’s home life and referred to a prior unsuccessful placement of the defendant in a group home in Easton, Pennsylvania by the Family Court system. The defendant had difficulty adjusting to the home and after his return home reverted to truancy, and drug and alcohol consumption on the streets.
Dr. Russell Floyd testified that the defendant was in need of counselling [sic] and educational development in a juvenile setting.
footnote: Defendant’s school records which were reviewed by this court are replete with notations as to chronic truancy____

In denying appellant’s petition for transfer, the lower court reasoned that because of appellant’s age, he would be under juvenile supervision for only three years, that previous attempts to rehabilitate appellant had proven unsuccessful, that appellant actively participated in the burglary of a home which resulted in the killing of a defenseless victim, and that appellant lacked any remorse for his participation in the crime. The lower court also noted that there was an absence of evidence that appellant suffered from any mental disability, that the interests of society required the application of legal restraint and discipline as an adult to appellant, and that the evidence did not affirmatively demonstrate that appellant would benefit from treatment as a youthful offender.

We find no abuse of discretion in the lower court’s reasoning. The court’s explanation demonstrates that it fully considered the factors set forth in § 6355(a)(4)(iii)(A), as required on a transfer application. In addition, the court’s decision is consistent with the weight of authority. See, e.g., Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (transfer properly denied where it was demonstrated that defendant could not be rehabilitated within time constraints of juvenile jurisdiction); Commonwealth v. Zoller, supra (denial of transfer to juvenile court warranted where juvenile was involved in episodes of violence, one of which resulted in death and the other resulting in a premeditated killing, and there was no guarantee that juvenile would respond to treatment within time frame of juvenile court’s authority); Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984), cert. den. 471 U.S. 1187, 105 S.Ct. 2679, 86 L.Ed.2d 697 (1985) (trial court warranted in denying transfer petition of juvenile murder defendant where nature and circumstances of crime as well as the need to protect the community militated against transfer); Commonwealth v. Brown, supra (transfer petition properly denied where defendant’s need for care, guidance, and control as a juvenile outweighed by state and society’s need to apply legal restraint and discipline as an adult).

Appellant’s contention that the Commonwealth had the burden of coming forth with witnesses to rebut the testimony of appellant’s experts is without merit. The Commonwealth does not have to present “live” testimony to assert a juvenile’s nonamenability to treatment; it may rely upon notes of testimony, the juvenile file, and the juvenile’s school record. Commonwealth v. Rush, 522 Pa. 379, 562 A.2d 285 (1989). All of this information was available to the court in the instant case. In addition, much of the expert testimony offered at the decertification hearing supports the lower court’s decision. Furthermore, as we indicated previously, the burden of proof in a transfer petition is on the juvenile to prove his amenability to treatment. Commonwealth v. Pyle, supra; Commonwealth v. Brown, supra.

Judgment of sentence affirmed.


author: ROWLEY, Judge.

text:
    568 A.2d 1316
    COMMONWEALTH of Pennsylvania v. Bonita Y. BASSION.
    Superior Court of Pennsylvania.
    Submitted Oct. 23, 1989.
    Filed Jan. 22, 1990.

      Jayne Shinko, Williamsport, for appellant.
    Robert Fleury, Dist. Atty., Troy, for Com., appellee.
    Before ROWLEY, BECK and TAMILIA, JJ.
   ROWLEY, Judge.

This action was instituted by the Appellant, Bonita Y. Bassion, on December 9, 1988, by filing a document entitled “PETITION FOR RECONSIDERATION AND REMAND ” in the criminal division of the trial court. In her petition, Appellant averred that: (1) on December 18, 1987, while operating a motor vehicle, she was stopped and given a citation by a police officer for driving without a license in violation of 75 Pa.C.S. § 1501(a); (2) she was “advised” by the “staff” of the District Justice that her license was “invalid” and she should “pay the fine;” (3) in reliance on the “advice” of the District Justice’s “staff” she paid the fine and costs in the amount of $42.50 on January 14, 1988; (4) in fact she had a valid driver’s license on December 18, 1987, when she was stopped; (5) she was innocent of the offense charged; and (6) the District Attorney did not oppose her petition. Attached to appellant’s petition was a photocopy of a driver’s license issued in her name, validated on October 30, 1987, and containing an expiration date of August 31, 1991. Appellant prayed that the trial court “vacate” her summary conviction and remand her case to the District Justice for a further hearing.

The trial court issued a rule that was returnable January 18, 1989. The Commonwealth did not file an answer to appellant’s petition or the rule. On January 18, 1989, the trial court entered an Order denying appellant’s petition. There was no hearing at that time. A timely appeal was taken and the matter is now before us for disposition. The issue, as framed by appellant, is whether the trial court abused its discretion in denying her petition without holding an evidentiary hearing and without making findings of fact. The Commonwealth has not filed an appellate brief. We will reverse and remand for an evidentiary hearing before the trial court.

The trial court has provided us with a detailed statement of its reasons for denying appellant’s petition. According to the trial court: (1) the appellant, sometime after paying the fine and costs to the District Justice, received a notice from the Department of Transportation (DOT) that her operator’s license would be suspended as a result of her summary conviction on January 14, 1988; (2) appellant appealed her license suspension in a civil proceeding and a hearing was held before the trial court on August 19, 1988; (3) on September 1, 1988, the trial court denied Appellant’s license suspension appeal because (a) the license suspension appeal had not been timely filed and (b) in any event, the evidence, which apparently consisted of the record of her summary conviction, was sufficient to support DOT’s proposed suspension of Appellant’s license; and (4) the order of September 1, 1988, was not appealed. The trial court went on to note that it had denied Appellant’s petition to vacate her summary conviction and remand the charge to the district justice for a hearing because (1) the same “matters were adequately addressed” by the court in the license suspension proceeding and decided on September 1, 1988, and (2) the lapse of almost a year from Appellant’s conviction of the summary offense until initiating this proceeding made it improper to grant her request.

The appropriate method of challenging the propriety of a summary conviction, whether after hearing or by plea, is by a timely appeal to the court of common pleas pursuant to Pa.R.Cr.P. 86. Such an appeal must be taken within 30 days of the sentence and when perfected the appeal is heard de novo by the Court of Common Pleas. Rule 86(g) provides that such an appeal is the exclusive means of challenging a summary conviction. Although appellant’s petition is not couched in such terms, and the trial court was not requested to consider and apply Rule 86, we have decided, under the circumstances of this case, that her petition should be viewed as a request for leave to take an appeal, nunc pro tunc, from her conviction of January 14, 1988.

Our Court has held that “[i]n proper cases, where a party has been prevented from appealing by reason of fraud or a wrongful or negligent act of a court official, the court may allow enlargement of time for appeal or appeal nunc pro tunc. It is obviously appellants’ burden, however, to show such mitigating circumstances.” Conrad v. Kemmerer, 301 Pa.Super. 410, 412, 447 A.2d 1032, 1034 (1982) (citation omitted). Accord, Commonwealth v. Englert, 311 Pa.Super. 78, 457 A.2d 121 (1983), Commonwealth v. Meshey, 278 Pa.Super. 73, 419 A.2d 1363 (1980). Furthermore, the party seeking leave to appeal nunc pro tunc must establish that they acted promptly to assert such a right upon learning of the existence of the grounds relied on for such relief.

In Commonwealth v. Englert, supra, the defendant sought leave to file an appeal, nunc pro tunc, from his summary conviction on the ground that “he had been unaware that the Department of Transportation would suspend his operating privileges because of such conviction.” On appeal, a panel of our Court held that such a contention did not constitute an allegation that defendant’s “failure to file a timely appeal had been caused by ‘fraud or its equivalent’ or because of a ‘breakdown in the court’s operation.’ ” The Court held that a District Justice is not “required to advise the motorist of a potential license suspension by the Department of Transportation in order that the appeal” period would begin to run against him. Similarly, in Commonwealth v. Meshy, supra, our Court held that the defendant’s allegation “that he did not learn of the nature of the two offenses to which he pleaded guilty until ... he received a suspension notice from the Commonwealth” did not constitute an allegation of “fraud or excusable mistake” that entitled the defendant to file a nunc pro tunc appeal from his summary convictions. Unlike the defendants in Englert and Meshy, however, the appellant in this case has done more than allege that she was unaware of the collateral consequences of her plea of guilty or argue that the District Justice had a responsibility to inform her of such collateral consequences. On the contrary, she has alleged that she was given inaccurate information about the status of her operating privileges by the District Justice’s staff and was “advised” to pay the fine and costs. Neither Mr. Englert nor Mr. Meshy alleged any incorrect or inaccurate information was given to them by the District Magistrate. Therefore, the decisions in Englert and Meshy do not mandate the trial court’s decision in this case.

More akin to the factual situation of this case is that before the Commonwealth Court in PennDOT v. Moore, 120 Pa.Commw.Ct. 617, 554 A.2d 180 (1988). Although not binding on us, we find the opinion of the Commonwealth Court in that case to be persuasive. Although there were some “procedural and jurisdictional difficulties” in that case, the Commonwealth Court noted that the defendant, in support of his request for Allowance of an Appeal, nunc pro tunc, contended “that the district justice had advised him to pay his fines and that his driving privileges would be reinstated.” The court, in holding that an appeal, nunc pro tunc, had properly been allowed, stated that it agreed “with the trial court that incorrect information given to the [defendant] by the District Justice is sufficient reason to permit an appeal, nunc pro tunc.” Like the Commonwealth Court, we are of the opinion that the giving of incorrect and inaccurate information to an accused by the District Justice or his or her staff may, if established, constitute a breakdown in the court’s operation that warrants the allowance of an appeal, nunc pro tunc. Although the appellant in the case before us has not alleged that the information given to her by the District Justice’s staff was the reason for her failure to appeal timely to the Court of Common Pleas, such may be a reasonable inference from her petition taken as a whole. Therefore, like the Commonwealth Court, we are of the opinion that appellant should be given the opportunity to present evidence at an evidentiary hearing in support of her request for allowance of an appeal, nunc pro tunc. A word of caution, however, may be appropriate. The appellant will be obliged to also prove that she acted promptly upon learning that the information given to her by the District Justice’s staff was inaccurate. Therefore, we will remand this case to the trial court for the purpose of holding a evidentiary hearing on appellant’s request to be allowed to appeal, nunc pro tunc, from her summary convictions.

“Appellant has also filed with this Court a Motion for Post-Submission Communication in which she seeks permission to file a Petition for Supersedeas. She has furnished us with a copy of the request for a supersedeas which she intends to file. We will grant the Motion for Permission to File the Petition for Supersedeas. In her petition for a supersedeas, appellant requests that we “grant a supersedeas of her license suspension pending the appeal of her conviction on the summary charge.” However, we emphasize that the only matter before us on this appeal from the criminal division is appellant’s attempt to challenge her summary conviction. PennDOT v. Moore, supra. The denial of her appeal from her license suspension was not appealed and it is not before us at this time. Therefore, we have no authority to enter an order dealing with the license suspension proceedings. Moreover, Penn-DOT is not a party in this proceeding and is not involved in this appeal. Thus, it is not amenable to any order we would now enter concerning appellant’s operating privileges. See Commonwealth Dept. of Transportation v. Arnold, 109 Pa.Commw.Ct. 45, 530 A.2d 980 (1987) (trial court in a civil proceeding involving a license suspension may not consider an attack on the underlying criminal conviction).

The Order of July 18, 1989, is vacated and the case is remanded for further proceedings in accordance with this opinion. Appellant’s Motion for Permission to File a Post-Submission Communication is granted. Appellant’s Petition for a Supersedeas is denied.

TAMILIA, J., concurs in the result.

      . Appellant originally filed her appeal in the Commonwealth Court. Subsequently the appeal was transferred to this Court. Appellant has included in her appellate brief matters dehors the official record in this case. Furthermore, she has, ex parte, included in the record of the trial court, after her appeal was filed, matters which she herself describes as "off-the-record activity.” We do not condone such practice. We have limited our review of this appeal and based our decision only on those matters that are properly contained in the original record as certified to us.

      . The propriety of the trial court’s order of September 1, 1988, denying Appellant’s license suspension appeal in the civil proceeding is not before us in this appeal which is limited solely to Appellant’s Summary Conviction before the District Justice.

      . We recognize that a panel of this Court expressed "serious doubt as to whether one who pleads guilty to a summary offense has any right of appeal.” Commonwealth v. Meshey, 278 Pa.Super.Ct. 73, 75, 419 A.2d 1363 (1980). In spite of its expression of “doubt” however, the Court, in Meshey, addressed and decided the appeal "on the merits.” Furthermore, an examination of the case cited by the Court in Meshey as giving rise to such a "doubt” shows that it does not constitute precedential authority for the denial of a right of appeal in such circumstances. In Commonwealth v. Kauffman, 249 Pa.Super.Ct. 600, 377 A.2d 986 (1977), it appears that the appeal to this Court was taken from an “Order ” of the trial court that sustained the Commonwealth’s petition to quash an attempted appeal to the trial court from summary convictions entered upon a “guilty plea.” This Court’s per curiam order, however, affirmed the “[¡Judgment of sentence ” without reference to the trial court’s order. Under these circumstances, the per curiam order of this Court in Kauffman does not constitute a precedential approval or adoption of the trial court’s analysis or holding. Thus, there is no appellate authority in Pennsylvania that supports a view that one who pleads guilty to a summary charge and pays the fine and costs cannot thereafter take an appeal pursuant to Rule 86. Therefore we have no doubt that a right of appeal does exist for "one who pleads guilty to a summary offense.”