text:
    509 A.2d 364
    COMMONWEALTH of Pennsylvania v. William FULLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1986.
    Filed May 5, 1986.

      Paul Bogdon, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   KELLY, Judge:

Appellant, William Fuller, appeals from the order of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, dated May 17, 1985 which denied appellant’s second Post Conviction Hearing Act petition without a hearing. We affirm the decision of the lower court.

On October 25, 1978, William Fuller was found guilty by jury of Robbery, Theft and Conspiracy. His motion in arrest of judgment was denied, and he was sentenced to undergo imprisonment of not less than eight (8) years or more than sixteen (16) years. A direct appeal was taken to the Superior Court of Pennsylvania in which appellant challenged the sufficiency of the evidence adduced at trial. The Superior Court affirmed the judgment of sentence. A petition for allowance of appeal to the Supreme Court of Pennsylvania was denied. Subsequently, appellant filed a petition for writ of habeas corpus in the United States District Court for the Western District of Pennsylvania, which was dismissed on September 17,1981. Appellant was represented at trial by private counsel and on direct appeal by the Office of the Public Defender of Allegheny County.

In December, 1981, appellant filed his first Post Conviction Hearing Act petition. Subsequently, counsel was appointed, and filed an amended petition. Relief was denied without a hearing. On appeal, the Superior Court affirmed (No. 686 Pittsburgh, 1982) and the Supreme Court denied allocatur. (No. 304 Allocatur Docket, 1983).

Appellant filed his second Post Conviction Hearing Act petition in January, 1985. Private counsel was appointed to represent the petitioner. A motion to amend petitioner’s second PCHA petition was filed in March, 1985. Appellant’s claims ranged from ineffectiveness of trial and post-trial counsel to trial court abuse of discretion. Relief was denied without a hearing by Order dated May 17, 1985. It is this Order which is the subject of the within appeal.

The Post Conviction Hearing Act specifically provides:

(b) Issues waived. — For the purposes of this subchapter an issue is waived if:
1) The petitioner knowingly and understanding^ failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in prior proceeding actually initiated under this subchapter.
2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) Presumption. — There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

42 Pa.C.S.A. § 9544(b), (c) (1982). See also Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983). For example, it is firmly settled that “[[Ineffectiveness of prior counsel must be raised at the earliest stage in proceedings at which counsel whose ineffectiveness is being challenged no longer represents the accused.” Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n. 8, 372 A.2d 687, 695 n. 6 (1977). Thus, there is a followed standard that a failure to raise an issue at “the earliest [possible] stage in proceedings” shall be a knowing and understanding failure; 42 Pa.C.S.A. § 9544(c). Further, it is well settled that a petitioner will be denied post-conviction relief if the issue upon which he bases his claim has been finally litigated. See e.g. Commonwealth v. McKenna, 498 Pa. 416, 446 A.2d 1274 (1982).

An issue is deemed to have been finally litigated if the trial court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to appeal the ruling. 42 Pa.C.S.A. § 9544(a)(1). However, an issue will not be deemed to have been finally litigated where a defendant has been represented by ineffective counsel. Commonwealth v. Klinger, supra; Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982). The burden of showing that an issue has not been finally litigated rests on the petitioner. 42 Pa.C.S.A. § 9543(4). Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981).

If the post-conviction petition raises issues which are nothing more than rephrased issues previously disposed of on direct appeal, they are deemed to have been finally litigated. Commonwealth v. Morales, 485 Pa. 228, 401 A.2d 742 (1979); Commonwealth v. Toledo, 230 Pa.Super. 447, 331 A.2d 888 (1975). In Commonwealth v. Slavik, 449 Pa. 424, 427-428, 297 A.2d 920, 922 (1972), the Supreme Court wrote:

In the present PCHA petition one of the issues on which Slavik based his claim for relief was the invalidity of the guilty plea — the same question decided adversely to him on direct appeal. However, in this petition Slavik urged a new theory to support his previously presented and litigated claim that his plea was constitutionally infirm. A defendant is not entitled to relitigate the validity of his plea every time he offers a new theory of argument which he had not previously advanced.

(Emphasis added.) See also Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973).

Though in the instant petition appellant has raised fourteen issues, only thirteen issues have been addressed in appellant’s brief. These issues relate to alleged trial court errors, and to alleged ineffectiveness of trial, appellate and first PCHA counsel. However, as we have stated in Hubbard, supra, ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represents the defendant. See also Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981). In the instant case, all issues raised by appellant have been or should have been previously raised, either on direct appeal to the Superior and Supreme Courts of the Commonwealth or on the filing of appellant's first PCHA petition. It is therefore improper to raise those issues here.

The only extraordinary circumstance which would justify the non-waiver of all the issues presented by second PCHA counsel in the instant petition would be to couch these issues in such terms as to reveal the ineffectiveness of first PCHA counsel, direct appeal counsel and trial counsel. Here, ineffectiveness of the first PCHA counsel for not raising in the first PCHA petition those issues now raised in the second PCHA petition has not been specifically pleaded.

As the Pennsylvania Supreme Court stated in Commonwealth v. Nole, 506 Pa. 432, 434, 485 A.2d 766, 767 (1984):

In order to avoid the dismissal of this petition upon a determination of waiver and obtain PCHA review of these pre-trial issues, there must be viewed as implicit in the instant petition the allegation that the three previous counsel who represented Nole were ineffective because, were they not, the issue would not be deemed waived. However, in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), this Court held that allegations of ineffective counsel are to be raised at the first opportunity at which counsel, other than the attorney whose ineffectiveness is being alleged, represents the defendant. Accordingly, an allegation of ineffectiveness of trial counsel and the theories in support thereof, if not raised at the first opportunity, are to be deemed waived. However, under the majority opinion of Watlington, a PCHA petitioner, in order to obtain review of any allegation of trial or pre-trial error, need only allege that all preceding counsel were ineffective in failing to effectively preserve the issue for appellate review. (Emphasis added).

Here, issues at numbered paragraphs 1, 2, 8, 9, 11 and 12 involve the ineffectiveness of trial counsel. These issues are not now proper for review if appellant has neglected to entertain the issues at the “earliest opportunity”. The “earliest opportunity” in this instance would have been within appellant’s first PCHA petition. Because the instant petition is the second to be filed requesting post-conviction relief and not the first, the Hubbard criteria prevents appellant from now raising issues of trial counsel’s ineffectiveness. Such issues have either been waived or finally litigated.

Issues at numbered paragraphs 4, 5, 6, 7 and 13 of appellant’s petition involve alleged error of trial court. Appellant’s appeal to the Superior Court challenged the sufficiency of evidence adduced at trial. On that occasion this Court affirmed. Any issue concerning the trial court now raised by appellant, even if not finally litigated, must be considered waived based on Hubbard. Therefore, all such issues concerning the error of trial court have been either waived or finally litigated and cannot be reassessed at present. See Hubbard, supra; McKenna, supra.

This leaves two issues, at paragraphs 3 and 10. These remaining issues appear on their face to meet the “earliest possible opportunity” test of Hubbard and require closer scrutiny. Paragraph 3 states: “Appeal counsel and first PCHA counsel were ineffective in not raising the ineffectiveness of trial counsel on appeal or in the first PCHA petition” (Appellant’s brief p. 11). Upon review of the record, we find that appellant’s appellate counsel and first PCHA counsel were not one in the same. Therefore, to preserve the issue of ineffective appellate counsel on appeal, the issue must have been raised in the first PCHA petition, which would have been the “earliest opportunity” to raise such issue. Appellate counsel ineffectiveness was not so raised by first PCHA counsel and is thus considered waived.

Additionally, appellant argued in his numbered paragraph 3 that first PCHA counsel was ineffective for not raising the ineffectiveness of trial counsel in the first PCHA petition. However, upon review of the record we find that this issue of ineffectiveness of trial counsel was in fact raised by first PCHA counsel. The issue is clearly noted in appellant’s first PCHA petition and further discussed in its supporting facts. Appellant stated in his first petition, “[t]rial counsel was certainly ineffective for not moving to dismiss this criminal information prior to trial”. (PCHA petition of November, 1981; supported on p. 3). Relief under this first petition was denied by the Court. Therefore, this issue has been finally litigated. McKenna, supra. A mere claim of general ineffectiveness is not sufficient. Proof of such ineffectiveness must be offered. “Assertions of ineffectiveness in a vacuum cannot be ineffectiveness.” Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Here, appellant has only provided a general claim of ineffectiveness. Therefore, we need not further consider this issue.

Finally, paragraph 10 of appellant’s argument in support of relief under his second PCHA petition states that “[a]ppeal counsel was ineffective for failure to completely present appellant’s case as it pertained to sufficiency of the evidence.” (Appellant’s brief, p. 12). As in our discussion pertaining to paragraph 3, an issue relating to the ineffectiveness of appeal counsel is properly raised in the first PCHA petition, that petition being the first opportunity to raise such issue. Because it was not raised in the original petition in this case the issue is deemed waived. Hubbard, supra.

For an issue to be properly raised in this second petition, appellant would be required to raise the ineffectiveness of first PCHA counsel for failing to raise the ineffectiveness of appellate counsel, and so on, listing all preceding counsel as ineffective and thereby avoiding dismissal of the particular issue upon a determination of waiver. Nole, supra. Appellant failed to do so and has failed to raise any new claim against prior counsel and as a result has failed to raise any issue which has not already been waived or finally litigated. Due to appellant’s failure to allege extraordinary circumstances justifying his failure to raise such issues, appellant’s post-conviction hearing act petition was properly denied.

AFFIRMED.

      . Counsel for appellant has chosen to follow in general terms issues 1 through 11 as set out in appellant’s pro se petition, that petition being appellant’s second to be filed under the post conviction hearing act. Counsel has further chosen to substitute in appellant’s brief two issues for issues 12 through 14 as stated in said petition; thereby explaining why appellant’s petition raises fourteen issues whereas his brief raises only thirteen.
      Upon review of the issues, issue 12 of appellant's petition refers to alleged ineffectiveness of appellate (direct appeal) counsel. Issue 13 claims ineffectiveness of trial counsel and appellate counsel in their alleged failure to raise certain facts which appellant avers would have been helpful to his cause. Issue 14 further alleges ineffectiveness of appellate counsel for failing to raise ineffectiveness of trial counsel in that said appellate counsel suggested to appellant that the issues were meritless and that he should leave legal matters to his counsel.
      Appellant failed in these issues to raise the ineffectiveness of "all preceding counsel" as required in Note, supra, in that the ineffectiveness of first PCHA counsel was never at issue. Therefore, the issues have been waived and are not properly raised before this Court. Issues on sufficiency of the evidence have been finally litigated on direct appeal, and general allegations of ineffectiveness are insufficient. Clearly, raising these issues before this Court, when viewed on their merits, would have carried no weight and would have in no way affected our decision in this matter.

      . Specifically, those issues raised in appellant’s brief are as follows: 1) Trial counsel was ineffective in its failure to object to the constant usage and references by the prosecutor of the issues relating to the exhibits taken from Appellant’s co-defendant in the crime as such references imposed guilt upon Appellant by association; 2) Trial counsel was ineffective in his constant referral to information and exhibits which were stated to have been taken from the possession of Appellant’s co-defendant causing Appellant to be prejudiced by his being considered guilty by association with co-defendant; 3) Appeal counsel and first PCHA counsel were ineffective in not raising the ineffectiveness of trial counsel on appeal or in the first PCHA Petition; 4) It was error for the Court below to admit Exhibits 2-10 as evidence in Appellant's case when after the Commonwealth rested its case, no testimony or evidence had been presented by the Commonwealth indicating or linking these exhibits to Appellant or his being in possession thereof; 5) The trial court was in error in not granting trial counsel’s motion for demurrer as to the charge of robbery, theft by unlawful taking, and conspiracy since the evidence at the time did not amount to proof beyond a reasonable doubt of Appellant’s guilt of these charges; 6) Trial court erred in its failure to grant Appellant’s demurrer sua sponte as to the charge of robbery, theft by unlawful taking and conspiracy when after the Commonwealth rested its case no evidence of testimony had been presented which amounted to guilt beyond a reasonable doubt of Appellant of the three crimes charged; 7) The Court was in error in its charge to the jury in that the charge indicated that Appellant’s guilt to be based only on circumstantial evidence when the law holds that such evidence by itself is not enough to convict the party when other factors tend to make the circumstantial evidence questionable and in not giving curative instructions as to the sufficiency of the evidence illustrating that Appellant must be acquitted if the jury was convinced beyond a reasonable doubt that the evidence, although circumstantial, was questionable in order to convict Appellant of the crimes; 8) Trial counsel was ineffective for its [sic] failure to object to the instruction to the jury that they could convict Appellant solely upon circumstantial evidence when the evidence at trial was produced in the form of testimony which place the circumstantial evidence in question; and further for its [sic] failure to raise the Court’s failure to give such an instruction as to the issue relating to circumstantial evidence; 9) Trial counsel was ineffective for failure to allow Appellant to take the stand at the trial in his own behalf after Appellant requested to do so; 10) Appeal counsel was ineffective for failure to completely present Appellant’s case as it pertained to sufficiency of the evidence; 11) Failure by trial counsel to request the charge to the jury that the crime of robbery is a felony defined by degree and as such may be rightly determined by the jury; 12) Trial counsel was ineffective for failure to file a motion for reconsideration of sentence; and 13) Trial Court erred in failing to state on the record its reasoning for imposing the sentence.

      . Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    509 A.2d 369
    Charles H. DORSETT, Sr. and Charles H. Dorsett, Jr., Appellants, v. Frances Newman HUGHES and Harry G. Hughes, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1986.
    Filed May 14, 1986.

      James J. Martin, Philadelphia, for appellants.

      Vincent V. Carissimi, Philadelphia, for appellees.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   PER CURIAM:

The undisputed facts in the case before us are that Emil Harman died on June 22, 1982, leaving a last will and testament in which he named the appellants, Charles H. Dorsett and Charles H. Dorsett, Jr. who are attorneys, as executors of the estate. The deceased also named Frances Newman Hughes and her husband, Harry G. Hughes, as executors. The will was drawn by Charles H. Dorsett, the father of Charles H. Dorsett, Jr. Although both Mr. Dorsetts are lawyers licensed to practice law in Pennsylvania, they are not associated in the practice of law and maintain separate offices.

After Mr. Harman died, it was agreed between the parties that Harry G. Hughes would serve as sole executor and the other named executors would renounce and they did in fact renounce. It was also agreed by Mr. Hughes that Charles H. Dorsett, Sr. would serve as the attorney for the estate. At this point the clear waters of agreement become muddied by conflicting allegations. There is controversy as to the amount of compensation to be paid to Mr. Dorsett, notwithstanding that all of the parties on appeal agree that Charles H. Dorsett, Sr. was to be retained as attorney for the estate and that Harry G. Hughes would serve as sole executor. Mr. Hughes claims that he retained Mr. Dorsett to represent him in his capacity as executor of the estate with no agreement as to fee. Mr. Dorsett claims that he was to receive a fee based on the gross value of the estate.

Both Mr. Dorsetts and Frances Newman Hughes filed renunciations of their right to serve as executor and letters testamentary were issued on June 17, 1982 to Harry H. Hughes by the Register of Wills. Shortly thereafter, Mr. Hughes decided to retain other counsel and on August 2, 1982, he wrote to Mr. Dorsett telling him that he had retained new counsel for the estate and requesting that all files be turned over to his new counsel.

After Mr. Dorsett was dismissed as counsel for the estate, he commenced an action in assumpsit in July, 1983, seeking damages in the amount of $18,175.43 representing 7% of the gross value of the estate which the appellants allege was $259,649.64. In their complaint in assumpsit the appellants stated:

4. After the death of Emil Harman, Charles H. Dorsett, Harry H. Hughes, and Frances Newman Hughes met to plan the administration of the Estate.
5. The parties present agreed that Charles H. Dorsett, Jr., Charles H. Dorsett and Harry H. Hughes would resign as Co-Executors and that Frances Newman Hughes- would be sole Executrix. The parties agreed further that Charles H. Dorsett would be retained as attorney for the Estate and that the combined attorney’s fee and commission of 10% would be divided 7% to Charles H. Dorsett and 3% to Frances Newman Hughes.
6. Frances Newman Hughes then declared that she preferred that Harry G. Hughes be sole Executor.
7. All parties present agreed that Harry G. Hughes would become sole Executor upon the same terms as previously agreed.
8. Charles H. Dorsett, Jr., who was not present at the meeting described above, later agreed to renounce based upon the agreement recited above.

The matter was heard before a board of arbitrators and an award was entered in favor of the appellants in the amount of $18,175.43 and “against Harry G. Hughes, as Executor of the Estate of Emil Harman only.” An appeal was taken from the award of arbitrators and heard in the Orphans’ Court Division of the Court of Common Pleas. The defendants below filed a motion for summary judgment which was granted by the Orphans’ Court, by Silverstein, J., and the appellants’ claim was dismissed without prejudice to the right of Charles H. Dorsett and Charles H. Dorsett, Jr. to present a claim for services at the audit of the account of Harry G. Hughes, Executor of the Estate of Emil Harman, deceased.

Whether the claim for $18,175.43 based on an alleged agreement to pay that fee may be dismissed by grant of a motion for summary judgment, centers on whether an executor may dismiss a lawyer retained by the executor as counsel for the estate at any time even if there has been an agreement to pay a specified or ascertainable fee. The rule is succinctly stated in Sundheim v. Beaver County Building & Loan Association, 140 Pa.Super. 529, 533, 14 A.2d 349, 351 (1940):

A client may terminate his relation with an attorney at any time, notwithstanding a contract for fees, but if he does so, thus making the performance of the contract impossible, the attorney is not deprived of his right to recover on a quantum meruit a proper amount for the services which he has rendered.

In this case, the appellants claim a legal fee of over $18,000.00 based solely on an alleged agreement by the executor to pay a fee consisting of a percentage of the gross value of the estate. Such an agreement, even if made, would not be enforceable. Attorney’s fees in an estate are based on the reasonable value of the service rendered and subject to the approval of the Orphans’ Court. In determining the reasonableness of counsel fee in an estate an appellate court will not disturb the decision of the Orphans’ Court in the absence of an abuse of discretion or error of law. Lohm Estate, 440 Pa. 268, 269 A.2d 451 (1970). See also Barth Estate, 170 Pa.Super. 163, 84 A.2d 256 (1951); Jones Estate, 163 Pa.Super. 129, 60 A.2d 366 (1948); Remick’s Pennsylvania Orphans’ Court Practice, Vol. 5a, 1980, § 39.10 pp. 328-329.

With respect to reasonableness of counsel fee in an estate:

The facts and factors to be taken into consideration in determining the fee or compensation payable to an attorney include: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was “created” by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question. Huffman Estate (No. 3), 349 Pa. 59, 64, 36 A.2d 640, 151 A.L.R. 1384 [1944]; Bickel Appeal, 388 Pa. 270, 276, 130 A.2d 498 [1957]; Fraiman Estate, 408 Pa. 442, 448, 184 A.2d 494 [1962]; Thompson Estate, 426 Pa. 270, 282, 332 [232] A.2d 625.

Trust Estate of LaRocca, 431 Pa. 542, 546-47, 246 A.2d 337, 339 (1968).

Decedent’s estates are subject to the jurisdiction of the Orphans’ Court Division of the Court of Common Pleas, 20 Pa.C.S. § 711. Counsel fees payable to an attorney for an estate are therefore paid from funds subject to the Orphans’ Court’s jurisdiction and scrutiny. The executor must account to the court for fees paid. “An executor or a trustee is an officer of the orphans’ court and accountable to such court for all his actions of commission and omission in the performance of his fiduciary duties; such duty to account embraces all payments made from estate or trust funds by way of compensation to himself or his counsel. Thompson Estate, 426 Pa. 270, 276, 232 A.2d 625, 628 (1967). (Emphasis added.) See also Standard Pennsylvania Practice, 2d, § 4:74, page 420.

Counsel for the executor or other personal representative in an estate has a fiduciary relationship with the personal representative who himself has a similar fiduciary obligation to the estate. It is not enough that the executor approve counsel fee, but the Orphans’ Court which has jurisdiction over the estate from which the fee is to be paid must also approve its reasonableness. Where “the fee claimed [is] for services rendered in settlement of an estate, the court itself is amply able to appraise the reasonableness of the fee upon a mere recital of the services rendered.” Lare Estate, 368 Pa. 570, 576, 84 A.2d 334, 338 (1951). In Berkowitz Estate, 344 Pa. 485, 486, 26 A.2d 295, 296 (1942) the Supreme Court noted:

The fixing of fees for services of counsel in the settlement of an estate, or other matter under the eye of the court, rests largely in the judgment of the court below, and its decision will not ordinarily be disturbed on appeal. As said in Re Good’s Estate, 150 Pa. 307, 310, 24 A. 623 [1892]: “The amount of fees to be allowed to counsel, always a subject of delicacy, if not difficulty, is one peculiarly within the discretion of the court of first instance. Its opportunities of judging the exact amount of labor, skill, and responsibility involved, as well as its knowledge of the scale of professional compensation usual at the time and place, are necessarily greater than ours, and its judgment should not be interfered with except for plain error.” See also In re Wood’s Estate, 272 Pa. 8, 12, 13, 115 A. 865 [1922]; In re Rambo’s Estate, 327 Pa. 258, 266, 193 A. 1 [1937]; In re Davidson’s Estate, 334 Pa. 389, 395, 6 A.2d 73 [1939].

In summary, the fees of an attorney for the executor of an estate must meet the test of reasonableness notwithstanding an agreement to pay a specified fee or one based on the value of the estate. In the instant case, the appellants were not basing their claim on the reasonable value of their services, but only on alleged agreement to pay a fee based on a percentage of the gross value of the estate. Had Mr. Dorsett, Sr. served as counsel for the estate during its entire administration and had also performed administrative duties ordinarily performed by the personal representative, the court at the audit of the account might have determined that the requested fee was reasonable and therefore approved it. However, such was not the case, as Mr. Dorsett served only for a short period of time when the executor removed him as counsel, as he had a right to do.

Summary judgment was entered in favor of all appellees. The entry of summary judgment is proper under Pa.R.C.P. 1035 when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Thorsen v. Iron & Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984). In considering a motion for summary judgment the court must view the evidence in the light most favorable to the non-moving party and enter judgment only if the case is clear and free from doubt. Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979).

Notwithstanding an agreement to pay a determinable fee to Mr. Dorsett, Sr., the executor was free to terminate the relationship of attorney and client at any time and he did so shortly after the administration of the estate commenced. The appellees were entitled to judgment as a matter of law in a claim based on an alleged agreement to pay a specific or determinable fee. The appellants are not without a remedy and the Orphans’ Court by its order of September 6, 1984, specifically permitted them to present a claim for legal services at the audit of the executor’s account. At that time, the Orphans’ Court may in the exercise of its sound discretion, award a reasonable counsel fee to Mr. Dorsett, Sr.

Order affirmed.

      . It is admitted by the appellants that Charles H. Dorsett, Jr. performed no legal services for the Executor of the Estate of Emil Harman.

      . The complaint alleged that the appellees “refuse to pay plaintiff Charles H. Dorsett, Esquire, the 7% commission agreed upon." (Emphasis added.) This is contradicted by the answer of Charles H. Dorsett, Sr. to the request for admissions by the defendants below in which Mr. Dorsett, Sr. answered
      "It was suggested that Frances Newman Hughes be the sole executor. She declined and Harry G. Hughes was selected. It was agreed that Charles H. Dorsett, Jr. and Charles H. Dorsett, Sr. would be retained as counsel at a fee of five (5%) percent of the value of the estate and would do the work involved in the administration of the estate for two (2%) percent of the executor’s commission." (Emphasis added.)
      It is clear that Mr. Dorsett is not seeking merely "2 percent of the executor’s commission.” He is seeking 2% of the gross value of the estate for the performance of administrative duties and not 2% of whatever executor's commission Mr. Hughes may receive.

      . The statement of question as stated by appellants is:
      When co-executors who are attorneys renounce their co-executor-ships upon the agreement of their fellow co-executors to retain them as counsel and to pay a specified fee, is such an agreement enforceable?
      The complaint in assumpsit was against "Frances Newman Hughes and Harry G. Hughes, individually and as Executor of the Estate of Emil Harman, deceased.” The statement of question involved implies imposition of liability on the appellees only as Executors. In any event, an individual would have no authority, real or apparent, to retain counsel for the executor of an estate. An attorney does not represent the estate or the heirs of the estate, but only the executor or personal representative of the estate. See Kreider Estate, 42 D & C2d 46 (Lebanon County, 1966).

      . An analogous situation because of the fiduciary relationship involved is the relationship of a township solicitor to the township. The Supreme Court stated in Ballou v. State Ethics Committee, 496 Pa. 127, 134, 436 A.2d 186, 189 (1981):
      Unlike a public employee, a solicitor has no enforceable right to continue in his position for the tenure of his appointment. Our cases have held that, as a consequence of the solicitor’s confidential relationship with the appointing body which he serves, the solicitor is removable at the will of the appointing power. Even if appointed for a fixed term and salary, the solicitor has no contractual right to recover any resulting loss in compensation.


author: WATKINS, Judge:

text:
    509 A.2d 373
    COMMONWEALTH of Pennsylvania v. Joseph Martin ROEDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1986.
    Filed May 16, 1986.

      Janice L. Hambridge, Assistant Public Defender, Williamsport, for appellant.
    Brett O. Feese, District Attorney, Williamsport, for Com., appellee.
    Before CAVANAUGH, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Lycoming county and involves defendant-appellant’s appeal from a non-jury conviction on a charge of driving under the influence.

The defendant had applied to the District Attorney for acceptance into the Accelerated Rehabilitation Disposition program. This application was denied by the District Attorney. The defendant had a prior felony record involving drug delivery charges in 1971. Defendant argues that the District Attorney abused his discretion in refusing to admit him to the A.R.D. program. We disagree. The district attorney is provided discretion in administering the A.R.D. program. See Pa.Rule of Crim.Pro. 175, 176. We cannot conclude that his policy of refusing to permit offenders with a prior felony record into the program is an abuse of discretion. This is so even though the felony conviction occurred thirteen years prior to the indicent giving rise to the driving while under the influence charge.

Judgment of sentence affirmed.


author: CERCONE, Judge:

text:
    509 A.2d 374
    Vernon W. MANNING, Appellant, v. AETNA CASUALTY & SURETY CO., and Jason J. Litton, M.D.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1986.
    Filed May 16, 1986.

      William G. Dade, Harrisburg, for appellant.
    Randall G. Gale, Harrisburg, for appellees.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order granting appellee’s, Aetna Casualty and Surety Co. (Aetna), preliminary objection in the nature of a demurrer and dismissing plaintiff/appellant’s, Vernon Manning, complaint in assumpsit against Aetna.

On June 15, 1978, appellant was injured during the course of employment. Several months later his employer’s workman’s compensation carrier, appellee Aetna, requested that appellee physician, Jason J. Litton, examine appellant to evaluate his disability status in relation to the injuries he had sustained. A letter dated November 15, 1978, from Aetna to Dr. Litton, forms the basis of appellant’s contract claim. It reads in pertinent part:

I [Aetna’s claim representative] would like for you to evaluate Mr. Manning’s present disability status in relation to the injuries he sustained as a result of the accident on the above date [June 15, 1978]. If there are any physical limitations which should be placed upon the claimant which would enable him to return to light duty work, I would appreciate if you could list these for us.

Dr. Litton conducted the requested examination and informed Aetna that Mr. Manning was definitely able to do any type of light work, but not climbing or overhead work. Dr. Litton proceeded to provide medical care, including surgery and physical therapy treatments, to Mr. Manning. Appellant alleges that Dr. Litton negligently performed the surgery and physical therapy thus causing him further injury, pain and suffering.

Appellant contends that Dr. Litton breached a contractual obligation to Aetna “to exercise ordinary skill and care and reasonable judgment in diagnosing, treating, surgically repairing and caring for plaintiff’s injuries.” He bases this contractual duty upon the previously cited letter as well as upon the Pennsylvania Workmen’s Compensation Act, 77 Pa.S.A. § 1 et seq. (Act) In particular, appellant cites sections 531 and 651, 77 Pa.S.A., in support of his proposition. Appellant maintains his standing to bring this action in contract by claiming that he is a third party beneficiary of the contract between Aetna and Dr. Litton.

The trial court concluded that appellant had not asserted facts sufficient to support his conclusion that he was a third party beneficiary to the contract between Aetna and Dr. Litton and, therefore, granted appellee’s demurrer. The issue to be decided by this court is whether the lower court was correct in reaching that conclusion. We find that the trial court correctly resolved this issue and, therefore, affirm its order.

“[T]he question of whether a contract was intended for the benefit of a third party is always one of construction. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of circumstances under which it was made.” Silverman v. Food Fair Stores, 407 Pa. 507, 509, 180 A.2d 894, 895 (1962); B. Bornstein & Son v. R.H. Macy & Co., 278 Pa.Superior Ct. 156, 167, 420 A.2d 477, 482 (1980).

Our Supreme Court adopted the principles set forth in the Restatement (Second) of Contracts § 302 (1979) as a guideline for analysis of third party beneficiary claims in Guy v. Liederbach, 501 Pa. 47, 59-60, 459 A.2d 744, 751 (1983), thus overruling, in part, Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950).

Restatement (Second) of Contracts § 302 (1979) states: § 302. Intended and Incidential Beneficiaries

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidential beneficiary is a beneficiary who is not an intended beneficiary.

The first part of section 302 sets forth a standing requirement which leaves discretion with the trial court to determine whether recognition of third party beneficiary status would be “appropriate.” Guy v. Liederbach, id. The second part of section 302 defines the two types of claimants who may be intended as third party beneficiaries. If this two-step analysis is met, a party may assert a claim under the contract.

Appellant herein has failed to pass the first hurdle raised by section 302. The trial court concluded that his right to performance would not be appropriate under the circumstances of this case because it would not effectuate the intentions of the parties. The trial court reasoned:

Aetna had a right under the Workman’s Compensation Act to seek and obtain an independent medical examination of the plaintiff. Assuming arguendo that the request for such an examination was a contract between Aetna and Dr. Litton, the plaintiff was clearly not an intended third party beneficiary. To the contrary, the interest of Aetna, as a workman’s compensation carrier, would be separate and distinct to (sic) the interest of the plaintiff.

Slip op. at 4. We fully agree with this conclusion. In requesting Dr. Litton to examine appellant, Aetna merely sought a report on his ability to return to gainful employment. Aetna did not request that Dr. Litton treat appellant nor does appellant allege that he was required by Aetna to use the services of Dr. Litton. We must assume that appellant independently chose to be treated by Dr. Litton and, therefore, any malpractice committed by him cannot be imputed to Aetna. The simple fact that Aetna paid for Dr. Litton’s services, as required by contract and statute, does not raise the suggestion that it assumed responsibility for the quality of care provided.

Appellant also claims that he has standing to assert a contractual claim based on Aetna’s contract with his employer by which it provides workman’s compensation insurance. Paragraph 74 of appellant’s complaint states:

74. As the worker’s compensation carrier for Sammons [employer], defendant Aetna had a contractual duty to provide plaintiff with sufficient, reasonable, proper, and skilled medical and hospital care and to provide physicians and surgeons of reasonable and sufficient skill and knowledge who would perform and apply their ordinary skill and knowledge to examine, diagnose, treat, care and supervise the treatment of plaintiff’s injuries that occurred within the scope of his employment.

Appellant does not contend that this alleged contractual duty is based on the terms of the instant contract, but that it is the logical extension of the holding in Tropiano v. Travelers Insurance Co., 455 Pa. 360, 319 A.2d 426 (1974). In Tropiano, the Supreme Court held that an employer’s compensation insurance carrier was not immune from liability in trespass to an employe for injuries allegedly caused by the insurer’s negligence in supplying medical services. Relying on Tropiano, supra, appellant asks this court to find by implication that Aetna accepted liability for the actions of all medical practitioners for whose services it paid. This we will not do.

The application of Tropiano to this case is limited. Tropiano simply held that the insurance carrier was not immune from a claim, in trespass, for “acts of negligence arising out of medical treatment directed and controlled by the insurance carrier...” Tropiano, 455 Pa. at 363, 319 A.2d at 427. The key phrase is “directed and controlled by the insurance carrier”. Tropiano was decided before the 1978 amendments to the Act. At that time, section 306 of the Act, 77 P.S. § 531, required the employer, via the insurance carrier, to provide medical services to injured employees. The 1978 amendments to that section provide only that the employe must initially seek treatment from one of five physicians designated by the employer for the first fourteen days after the injury occurred. After that fourteen day period, the employe may seek treatment from a licenced practitioner of his choice and the carrier’s only responsibility is to pay for that treatment. Tropiano does not support appellant’s conclusion that a workmen’s compensation contract necessarily creates a right in all employes to bring a claim against the carrier for negligent acts committed by medical providers.

Finally, although not dispositive of the issue raised herein, we note that appellant has not suffered an uncompensated loss. “Where a claimant [as appellant] in good faith seeks medical treatment for his [work-related] injury, and the medical treatment itself either aggravates the existing injury or causes new or additional injury, the law regards the latter as having been caused by the original accident.” Workmen’s Compensation Appeal Board v. Berger & Sons, 470 Pa. 239, 243, 368 A.2d 282, 284 (1977), citing Hurchick v. Falls Twp. Bd. of Supervisors, 32 Pa.D.&C.2d 729, 734-36, affirmed per curiam on the opinion of the court below, 203 Pa.Superior Ct. 1, 198 A.2d 356 (1964). Thus, appellant’s alleged further injuries are compensable under the Workmen’s Compensation Act.

We find appellant’s attempt to bootstrap a medical malpractice claim onto a claim in contract, thus bringing in an additional uninvolved party, Aetna, untenable. Accordingly, the order of the trial court granting appellee Aetna’s preliminary objections in the nature of a demurrer is affirmed.

Affirmed.

      . The record contains numerous pieces of correspondence between Dr. Litton and Aetna which were generated during the course of Mr. Manning’s treatment by Dr. Litton. Appellant does not assert that these documents form the basis for his contractual claim, nor would these documents support such a claim.

      . Appellant readily admits that his claim has been framed in terms of assumpsit, rather than trespass, because he failed to file this claim within the time required by the statute of limitations for trespass.

      As amended 1956, February 28, P.L. (1955) 1120 § 1120, § 1, 77 P.S. 651.

      . § 531. Surgical and medical services and supplies; refusal by employee; artificial limb or eye
      During the first ninety days after disability begins, the employer shall furnish reasonable surgical and medical services, medicines, and supplies, as and when needed, unless the employe refuses to allow them to be furnished by the employer.

      . Act of July 1, 1978, P.L. 692, No. 119, § 1.

      . § 531. Surgical and medical services and supplies; designation by employer; artificial limb or eye
      The following schedule of compensation is hereby established:
      (1) The employer shall provide payment for reasonable surgical and medical services, services rendered by duly licenced practitioners of the healing arts, medicines, and supplies, as and when needed: Provide, That if a list of at least five designated physicians or other duly licenced practitioners of the healing arts or a combination thereof is provided by the employer, the employe shall and be required to visit one of the physicians or other practitioners so designated and shall continue to visit the same or another physician or practitioner for a period of fourteen days from the date of the first visit. Subsequent treatment may be provided by any physician or any other duly licenced practitioner of the healing arts or a combination thereof, of the employes own choice, and such treatment shall be paid for by the employer.

      . The conclusion reached here is fully supported by a recent decision of this court in Craddock v. Gross, 350 Pa. Superior Ct. 575, 504 A.2d 1300 (1986). In Craddock, this court affirmed the trial court’s grant of defendant physician’s motion for summary judgment as to plaintiff s action in trespass. The panel held that a physician who conducted an examination of plaintiff at the request of workman’s compensation carrier owed no "duty” to plaintiff/employe.


author: WIEAND, Judge:

text:
    509 A.2d 377
    Eleanor BRUNDA, Administratrix of the Estate of Francis J. Brunda, Deceased; and all others similarly situated, Appellant, v. HOME INSURANCE COMPANY, Appellee. Blair and Julia CUNNINGHAM, Administrators of the Estate of Kathleen B. Cunningham, Deceased; and all others similarly situated, Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed May 12, 1986.
    Petition for Allowance of Appeal Granted Oct. 30,1986.

      Richard C. Angino, Harrisburg, for appellants.

      Jeffrey B. Rettig, Harrisburg, for appellee (at 174).
    Carl A. Solano, Philadelphia, for appellee (at 175).
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WIEAND, Judge:

This is a consolidated appeal from orders of the trial court which revoked class certifications previously entered in Brunda v. Home Insurance Co., No. 1141-S-1984 (Dauphin Cty.) and Cunningham v. Insurance Company of North America, No. 995-S-1984 (Dauphin Cty.). These actions had sought recovery of post-mortem work loss benefits under Pennsylvania’s No-fault Motor Vehicle Insurance Act. The representative plaintiffs in both cases also appealed from judgments dismissing their individual claims on grounds that they were barred by the applicable statute of limitations.

Francis J. Brunda died in an automobile accident on August 15, 1976. At the time of the accident, he was insured by a policy of no-fault insurance which had been written by Home Insurance Company (Home). Home denied the demand by Brunda’s wife for work loss benefits. Consequently, on April 13, 1984, Eleanor Brunda commenced a class action against Home to recover work loss benefits on behalf of her deceased husband’s estate and also on behalf of the estates of all insureds of Home who had died in auto accidents following enactment of the No-fault Act.

Kathleen Cunningham was the daughter of Blair and Julia Cunningham, who are the appellants at No. 175 Harrisburg, 1985. She died as a result of a motor vehicle accident on January 26, 1979, when the car she had been operating collided with another vehicle. The decedent was covered by a policy of motor vehicle insurance which had been issued by Insurance Company of North America (INA). After INA had refused to pay work loss benefits to the decedent’s estate, the Cunninghams filed a class action complaint against INA on March 29, 1984. In it, they sought recovery of work loss benefits on behalf of their daughter’s estate and the estates of all other INA insureds who had sustained fatal injuries in auto accidents after 1975 when the No-fault Act went into effect.

In both actions, the insurance companies filed answers to the complaints which alleged, inter alia, that the claims of the representative plaintiffs were barred by the four year statute of limitations contained in the No-fault Act. Later, they moved for summary judgment on this ground. In the meantime, the two estates had filed motions for class certification and also for partial summary judgment on their individual claims. After hearing, the trial court denied appellants’ motions for partial summary judgment, but conditionally granted class certification. Although the court determined that the individual claims of appellants were barred by the statute of limitations, it gave appellants’ counsel twenty days in which to intervene new class representatives. Failure to substitute new plaintiffs within twenty days, the court warned, would result in decertification of the two classes. Unable to locate an adequate class representative for either action, appellants’ counsel served interrogatories on the insurance companies and requests for the production of documents to disclose the identity of each insured who had been killed in an automobile accident. Pending responses to these discovery requests, apellants’ counsel petitioned the court for more time in which to intervene proper representative plaintiffs. The court granted the petitions and thereby extended the deadline for substituting new plaintiffs until twenty days after appellants’ counsel received the insurance companies’ answers to interrogatories. Home and INA, however, filed a joint motion for a protective order. They alleged, inter alia, that the information sought by appellants, and in particular the identities of potential class members, was beyond the scope of permissible discovery. The trial court granted the motion for a protective order after hearing, but once again it gave appellants’ counsel an additional twenty days in which to intervene proper class representatives. Appellants were again cautioned that if after that time no new plaintiffs had been substituted, the classes would be decertified upon motion. The twenty day period expired without intervention in either action. Therefore, Home and INA filed motions for revocation of the prior class certifications. The trial court granted these motions on February 28, 1985 and February 22, 1985. The court also granted INA’s previously filed motion for summary judgment. Subsequent motions for reconsideration of the orders decertifying the classes were denied by the trial court. Summary judgment was then entered also in favor of Home Insurance Company and dismissing the Brunda claim. The present appeals followed.

Appellants in both appeals raise the same four issues: (1) whether the trial court erred by entering summary judgments against them on the ground that their individual claims were barred by the statute of limitations; (2) whether the court, by virtue of its finding that their claims were time barred, erroneously determined that they were improper class representatives; (3) whether it was error to grant the insurance companies’ joint motion for a protective order prohibiting the discovery of the identities of potential class members; and (4) whether the trial court erred by denying their motion for reconsideration of the orders revoking class certification. For the reasons which follow, we vacate the judgment entered against the Cunninghams and reverse the order decertifying their class action. The judgment against Brunda and the order revoking certification of her class action, however, will be affirmed.

“In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.” Craddock v. Gross, 350 Pa.Super. 575, 578, 504 A.2d 1300, 1301 (1986) quoting Lookenbill v. Garrett, 340 Pa.Super. 435, 439, 490 A.2d 857, 859 (1985); Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983). See: Pa.R.C.P. 1035(b). Entry of summary judgment will be reversed where the trial court has abused its discretion or has committed an error of law. Peters Township School Authority v. United States Fidelity and Guaranty Co., 78 Pa.Cmwlth. 365, 370, 467 A.2d 904, 906 (1983).

A claim for post-mortem work loss benefits will remain viable, at the longest, for four years following the occurrence of the fatal accident giving rise to the claim. See: 40 P.S. § 1009.106(c)(1). Here, both claimants filed their actions after this statutorily-mandated time period had expired. The Cunningham action was commenced more than five years after the fatal accident of their daughter; and nearly eight years had elapsed following the death of Mrs. Brunda’s husband before she filed her suit. Despite this passage of time, appellants contend that their actions are not time barred. The running of the limitations period, they argue, was suspended during the pendency of two previously filed class actions which also had sought recovery of work loss benefits, and which allegedly had included their decedents as members of the represented class. See: Nye v. Erie Insurance Exchange, No. 5349-S-1979 (Dauphin Cty.); Seibel v. Allstate Insurance Co., No. 653-S-1981 (Dauphin Cty.).

We addressed the same argument in Miller v. Federal Kemper Insurance Co., 352 Pa.Super. 581, 508 A.2d 1222 (1986). We there held that the anti-trust action of Seibel v. Allstate Insurance Co., supra, did not toll the statute of limitations for subsequent assumpsit actions, such as those involved in the instant appeals, which seek recovery of work loss benefits. However, we also decided that Nye v. Erie Insurance Exchange, supra, did have the effect of suspending the statute of limitations for work loss claims, but only for the members of the class there defined. The class in Nye had been defined to include all previously employed insureds who died in auto accidents after November 15, 1977. Thus, appellants in the instant appeals may benefit from the tolling effect of Nye only if their decedents fit within the narrow class defined in Nye.

Kathleen Cunningham, who had been employed as a school teacher prior to her death on January 26, 1979, was clearly included in the class described in Nye. As a result, the statute of limitations ceased to run against the Cunning-hams’ claim on behalf of their daughter’s estate for as long as the Nye action remained extant, i.e., from its commencement on November 15, 1979 until dismissal by the Pennsylvania Supreme Court on December 30, 1983. See: Miller v. Federal Kemper Insurance Co., supra, 352 Pa.Superior Ct. at 586-587, 508 A.2d at 1228. The decedent’s fatal injuries had been sustained less than ten months before the commencement of the Nye action, and the estate’s complaint was filed within three months after Nye had been dismissed. Thus, the total amount of untolled time which elapsed against the Cunninghams’ claim was approximately a year. Because the No-fault Act provides a minimum of two years in which to bring an action to recover post-mortem work loss benefits, the Cunninghams’ claim remained viable at the time they instituted their present action. The trial court’s conclusion that the Cunninghams’ claim was barred by the statute of limitations, therefore, was error.

Unlike the Cunninghams’ decedent, Mrs. Brunda’s husband, who sustained his fatal injuries on August 15, 1976, does not fit within the class defined in Nye. The Nye class, as we have observed, was limited to insureds who died after November 15, 1977. Therefore, the statute of limitations continued to run untolled against Brunda’s claim for work loss benefits throughout the nearly eight years which elapsed before Eleanor Brunda filed her action. As the trial court correctly concluded, Brunda’s claim was time barred.

The trial court’s finding that the individual claims of appellants were time barred was the sole basis for its determination that appellants were improper class representatives. The propriety of the court’s determination that appellants were improper representatives, therefore, necessarily depends upon the validity of its disposition of appellants’ individual claims.

As we have already observed, the trial court erred when it concluded that the Cunninghams’ claim was barred by the statute of limitations. It follows, therefore, that the removal of the Cunninghams as class representatives on this ground was also error. In the absence of any other reason for questioning the adequacy of the Cunninghams’ representation, we reverse the trial court’s order decertifying the class action.

With respect to the Brunda action, we agree with the trial court’s determination that Brunda could not act as the representative plaintiff for the class of individuals described in her complaint because her action was time barred. To act as a class representative, a litigant must be a member of the class which he or she seeks to represent. Janicik v. Prudential Insurance Co. of America, 305 Pa.Super. 120, 135, 451 A.2d 451, 458 (1982). The purpose of this threshold requirement is “to ensure due process to absent class members and to satisfy requirements of standing.” Id., citing Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 559, 42 L.Ed.2d 532, 542 (1975). A plaintiff who does not have a viable cause of action “is not a member of any putative class and is therefore per se unable to serve as class representative.” Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 477 (N.D.Cal.1978). See: Pabon v. McIntosh, 546 F.Supp. 1328, 1333 (E.D.Pa.1982); Salgado v. Piedmont Capital Corp., 534 F.Supp. 938, 953 (D.P.R.1981); Morgan v. Laborers Pension Trust Fund for Northern California, 81 F.R.D. 669, 677 (N.D.Cal.1979); Rossini v. Oglivy & Mather, Inc., 80 F.R.D. 131, 134 (S.D.N.Y.1978); Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899, 908 (E.D.Wis.1978). The reason for this rule is wise. What a plaintiff “may not achieve himself, he may not accomplish as a representative of a class.” Mintz v. Mathers Fund, Inc., 463 F.2d 495, 499 (7th Cir.1972). Thus, a plaintiff, such as Brunda, who is without a viable cause of action because she has failed to assert her claim in a timely fashion, cannot qualify as a class representative. Wiltshire v. Standard Oil Co., 447 F.Supp. 756, 757 n. 1 (N.D.Cal. 1978), aff'd in part, rev’d in part on other grounds, 652 F.2d 837 (9th Cir.1981), cert. denied, Standard Oil Co. v. Wiltshire, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 153 (1982).

The trial court, having properly discharged Brunda as class representative, nevertheless proceeded to certify Brunda’s action conditionally as a class action, even though in Brunda’s absence the action was left without a representative plaintiff. Although Pa.R.C.P. 1710(d) gives courts the power to certify class actions conditionally, the Rule does not specify in what circumstances conditional certification will be appropriate. Similarly, our judicial decisions have not offered guidance in this regard. Thus, in order to determine whether it was proper to certify the Brunda action conditionally, we look to federal decisions which have interpreted the federal counterpart to Rule 1710(d) of the Pennsylvania Rules of Civil Procedure.

The Ninth Circuit Court of Appeals, in In re Hotel Telephone Charges, 500 F.2d 86, 90 (9th Cir.1974), indicated that conditional certification is not a means by which a court, at a certification hearing, can avoid deciding whether the requirements for certification have been met. “The purpose of conditional certification,” the Court said, “is to preserve the Court’s power to revoke certification in those cases wherein the magnitude or complexity of the litigation may eventually reveal problems not theretofore apparent.” Id. Similarly, the District Court for the Northern District of California held that absent a preliminary showing that an action may be maintained as a class action, it would be inappropriate to certify a class conditionally on the theory that decertification could be ordered if later discovery disclosed the impropriety of proceeding as a class action. See: Colburn v. Roto-Rooter Corp., 78 F.R.D. 679, 681, 683 (N.D.Cal.1978). See also: Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir.1975).

To maintain a class action in Pennsylvania, there must be a representative class plaintiff who can establish, inter alia, that his or her claim is typical of those asserted by all members of the class, and that he or she will fairly and adequately protect the class’ interests. See: Pa.R.C.P. 1702(3), (4). Instantly, however, the trial court conditionally certified the class action despite the fact that, after Brunda’s dismissal as class plaintiff, there no longer existed a representative party to maintain the action. This was error. In the absence of a class plaintiff who could establish the typicality of his or her claim and the adequacy of his or her representation, the action could not proceed as a class action. It was therefore inappropriate for the trial court to certify the class on the condition that it could later order decertification if no new class plaintiffs had been intervened. Although certification should have been denied at the outset, the error in certifying the class conditionally was corrected when the trial court later ordered decertification. In light of our conclusion that the initial certification of the action was improper, Brunda’s remaining arguments are moot.

The judgment entered against Eleanor Brunda in appeal No. 174 Harrisburg, 1985, and the order decertifying Brunda’s class action are affirmed. The judgment entered against the Cunninghams at No. 175 Harrisburg, 1985, however, is vacated, the order revoking certification of the class is reversed, and the action is remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this Court that the Judgment and Order of the Court of Common Pleas of Dauphin County in appeal No. 174 Harrisburg, 1985 are affirmed. The Judgment of the Court of Common Pleas of Dauphin County in the appeal at No. 175 Harrisburg, 1985 is vacated, the Order revoking certification of the class is reversed, and the action is remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Although both parties are agreed that the decedent died on January 26, 1979, there is some confusion as to whether the date of the accident was the 25th or 26th of January. The distinction is unimportant for purposes of our analysis.

      . On the same day that the trial court decertified the Brunda action, Brunda, by counsel, filed a motion for hearing on the form and content of notice to be given to the proposed class members. The motion was denied by the trial court. Brunda contends that it was error to refuse a notice hearing. This argument is without merit. As the trial court observed, at the time when the motion was filed the class already had been decertified.

      . The Cunninghams also contend that the trial court erred when it denied two petitions to intervene on the ground that the intervenors would have been improper class plaintiffs. Because we hold that the Cunninghams were proper plaintiffs capable of adequately representing the class defined in their complaint, we do not review the propriety of the court’s denial of intervention.

      . See: Guiton v. Pennsylvania National Mutual Insurance Co., 503 Pa. 547, 550-551, 469 A.2d 1388, 1389 (1983); Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 541, 469 A.2d 1382, 1384 (1983).


author: HESTER, Judge:

text:
    509 A.2d 383
    COMMONWEALTH of Pennsylvania v. Peter MAGGIO, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued March 18, 1986.
    Filed May 14, 1986.

      Jon S. Pushinsky, Pittsburgh, for appellant.
    Kenneth J. Benson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and HESTER, JJ.
   HESTER, Judge:

Appellant, facing criminal charges suspended on account of incompetence to stand trial, appeals his mental health commitment pursuant to section 408 of the Mental Health and Mental Retardation Act of 1966 (hereinafter, “MH/MR Act”), 50 P.S. § 4408, claiming the commitment is unconstitutional under the holding of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). He also argues that the commitment of a mentally retarded person such as him to the forensic unit of Mayview State Hospital, designed for the treatment of the mentally ill, violates not only state law but the United States Constitution as well.

Appellant, now fifty-eight years old, was charged in July, 1980, with arson, aggravated assault and homicide. He was adjudged incompetent to stand trial. Following a series of mental health commitments which were not challenged, on October 24, 1983, appellant was committed to the forensic unit of Mayview State Hospital pursuant to section 408 of the MH/MR Act, 50 P.S. § 4408. The commitment was based on the fact that appellant was not diagnosed as being mentally ill but was suffering from mental retardation. The Mayview facility was selected because there were “no secure, or forensic, mental retardation facilities in the Commonwealth of Pennsylvania.” Commonwealth v. Maggio, 132 P.L.J. 147, 148 (1983). In light of the crimes charged to appellant, the court deemed him a threat to the health and safety of the citizens of the Commonwealth, necessitating commitment to a secure facility such as the one selected. Id. at 149.

The order of October 24, 1983, was appealed to this court (hereinafter, “the 1983 appeal”), raising the same two issues we face in this appeal. Appellant claimed that his commitment violated Jackson v. Indiana, supra, due to the fact that he had been diagnosed as unlikely ever to achieve competence to stand trial. Jackson held that one

who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.

406 U.S. at 738, 92 S.Ct. at 1858, 32 L.Ed.2d at 451. Appellant argues that his commitment under section 408, a criminal commitment under the MH/MR Act, was a denial of due process and equal protection under the holding of Jackson.

This court remanded for a full hearing on the Jackson question, for it had not been addressed by the trial court and the record was inadequate to decide the issue. We did not, in deciding the 1983 appeal, rule on appellant’s second argument, for if he were to prevail on the Jackson issue, the propriety of his place of commitment would become moot. We retained jurisdiction to review the proceedings following remand.

The Jackson hearing was held on November 29, 1984. Based on the testimony of appellant’s treating psychiatrist, appellant was determined to be suffering from mental illness. The court held that the condition justified commitment under section 301 of the Mental Health Procedures Act of 1976 (hereinafter, “MHPA”), 50 P.S. § 7301. In applying the holding of Jackson, the court concluded that it was not applicable, for appellant was not “detained on a criminal charge[] solely because of incompetency to proceed,” which was the defect in Jackson. Slip op., May 16, 1985, at 6. The court held that appellant was civilly committed due to his mental illness under § 301 of the MHPA, the standard applicable to involuntary commitment of all persons rather than only to those who face criminal charges. Id. The court denied appellant’s Jackson challenge and held that appellant’s commitment was proper, id. at 7, and entered an order to that effect on June 19, 1985.

Appellant appealed the order of June 19, 1985 (hereinafter, “the 1985 appeal”), again raising the Jackson issue. He is supported by the Commonwealth of Pennsylvania, Department of Public Welfare (hereinafter, “DPW”). The 1985 appeal has been consolidated with the 1983 appeal, so the issue reserved in the earlier appeal is presently pending our review.

Appellant’s counsel has ably presented appellant’s challenge to the trial court’s resolution of the Jackson issue. The challenge implicitly rests on the proposition that the trial court, pursuant to the directive of this court following the 1983 appeal, had authority only to consider the applicability of Jackson to the § 408 commitment under which appellant was confined at the time of the prior appeal. The DPW strongly agrees. The Department argues: “Since the October 24, 1983 § 408 commitment order, Maggio has never had a civil commitment hearing, and thus is not currently detained pursuant to a civil commitment.” Brief at 2. The point of the argument is that we are reviewing the propriety of a § 408 commitment under the MH/MR Act, not a commitment under the MHPA.

Based on that premise, the argument is simple. When appellant was committed under section 408 of the MH/MR Act on October 24, 1983, he was not mentally ill, but mentally retarded. Commonwealth v. McQuaide, 464 Pa. 499, 347 A.2d 465 (1975), interpreted the MH/MR Act in light of Jackson and held that if an incompetent criminal defendant is unlikely to regain his competency within a reasonable time, he “must either be committed under the civil commitment provisions of Section 406 [50 P.S. § 4406] or be released.” Id., 464 Pa. at 518, 347 A.2d at 475. See Commonwealth v. McBurse, 465 Pa. 198, 348 A.2d 423 (1975), to the same effect. Appellant is entitled to release under the foregoing standard; he would then be subject to civil commitment proceedings wherein evidence of current mental illness would be relevant. Brief for appellant at 14.

The Commonwealth’s response is that the Jackson hearing of November 29, 1984, did not exceed the scope of the Superior Court’s remand order of October 26, 1984. Proof at the hearing that appellant was currently mentally ill and therefore committable under the MHPA obviated the applicability of Jackson, whose strictures apply only when someone is detained solely on the basis of incompetency to stand trial. Resolution of the issue requires an analysis of the relationship between the MH/MR Act and the MHPA.

The MH/MR Act was adopted in 1966 to regulate the treatment of all mentally disabled persons, defined to include both the mentally retarded and the mentally ill. 50 P.S. §§ 4201, 4102. Following the Supreme Court’s 1972 constitutional exposition of the rights of mental health patients in Jackson v. Indiana, supra, applied to the Pennsylvania MH/MR Act by the Pennsylvania Supreme Court in 1975, Commonwealth v. McQuaid, supra, the state legislature adopted the MHPA in 1976 specifically in response to the Jackson and McQuaid decisions. Commonwealth v. Kerrigan, 271 Pa.Super. 404, 409 n. 3, 413 A.2d 729, 731 n. 3 (1979). The MHPA repealed the MH/MR Act definition of “mental disability” which had included mental illness, and limited the application of the MH/MR Act to mentally retarded persons. 50 P.S. § 7502(a). The MHPA established exclusive and comprehensive procedures for commitment and treatment of the mentally ill. 50 P.S. § 7102. Mutually exclusive definitions of mental illness and mental retardation result in the application of one act or the other in a given case, but never both acts to the same set of circumstances.

Appellant’s condition, unfortunately, has alternated during the last five years between mental retardation and mental illness, justifying alternating application of the two mental health acts to his case. The problem arose in appellant’s case because his Jackson hearing was scheduled pursuant to the order of this court; it was not initiated by petition. Normally, of course, the petitioner for a commitment knows what proof will be offered, files a petition under the appropriate act, and follows the procedures prescribed by whichever act applies.

As a consequence of failure to file a new petition following remand, substantive portions of the MHPA were utilized in a case procedurally subject to the MH/MR Act. Substantial rights of appellant were violated when the trial court substituted § 304 of the MHPA as the predicate for commitment in place of § 408 of the MH/MR Act without affording appellant all the procedural protections of the MHPA. As we noted earlier, the MHPA was enacted to remedy defects in Pennsylvania’s mental health laws in light of Jackson v. Indiana, supra. Many of the changes incorporated in the MHPA are procedural ones, designed to protect due process and equal protection rights of individuals subject to commitment proceedings. We are constrained to hold that the trial court inadvertently erred in ordering appellant’s commitment under the MHPA without following the procedures mandated by the act.

Appellant received no notice of the hearing, nor was he served with a petition, with the result that he had no opportunity to prepare a defense. These are not minor “technical” defects. Counsel for appellant understood that the purpose of the hearing was to determine whether appellant was likely to regain competency to stand trial within a reasonable time. N.T., November 29, 1984, at 4. Only two witnesses testified at the hearing: Doctors Martone and Bowman, both psychiatrists. Counsel for appellant called the former, who had examined appellant for approximately an hour to evaluate his competency to stand trial. She testified that appellant was incompetent and that she believed he would never regain competency, due to his mild to moderate mental retardation. Id. at 12-13, 16, 18. She testified further that during the interview, appellant demonstrated no signs of psychosis, id. at 21-22, and, over appellant’s objection, that he was dangerous to himself and others. Id. at 23.

The Commonwealth called Dr. Bowman, appellant’s treating physician at the Mayview State Hospital forensic unit. He testified that appellant was both mentally retarded and mentally ill. Id. at 28-29. The mental illness was specified to be a major depressive disorder which was intermittently in remission. Id. at 29. He too concluded that appellant was incompetent to stand trial, id. at 31, and testified that he “would be astounded if he recovered competency at any time in [the next] ten years.” Id. at 32. He concluded also that appellant was dangerous to himself and others, id. at 33, and recommended treatment in a secure mental retardation facility rather than the Mayview forensic unit. Id. at 38.

Had appellant’s counsel been aware that the court might order a civil commitment under the MHPA, he could have utilized the services of a psychiatrist to assist appellant and to testify on his behalf, available at state expense pursuant to § 304(d) of the MHPA. As it was, counsel relied on the testimony of Dr. Martone, employed by the county behavior clinic, who examined appellant only in regard to his competency to stand trial. If appellant had been afforded the procedural protections of the MHPA prior to the hearing, evidence at the hearing might thus have included additional testimony, might have resulted in different findings of fact, might have resulted in continued application of the MH/MR Act rather than the MHPA and might have warranted commitment to a less restrictive facility.

On remand, therefore, appellant will be entitled to a new commitment hearing based on a new petition and appropriate notice under the applicable statute in order to permit preparation of a proper defense.

Our review of the second issue provides additional, highly compelling support for our disposition of this case. Appellant argued in his 1983 appeal, when he was committed on a finding of mental retardation, that his detention in the forensic unit of Mayview State Hospital, a high-security facility designed for the care and treatment of the mentally ill, violated constitutional and statutory rights. The record contained evidence that his confinement with the mentally ill posed a serious risk to appellant’s health. Although this was recognized by the trial judge, he deemed appellant’s danger to the public to outweigh the risk to appellant’s health, for the state had no “appropriate secure facility to house mentally retarded individuals charged with committing a crime.” Maggio, supra, 132 P.L.J. at 149.

Appellant’s counsel now argues forcefully that appellant’s detention in the inappropriate facility caused the “predictable” result that appellant’s condition deteriorated to a state of mental illness by the time of the Jackson hearing in November, 1984. Brief for Appellant at 14-15. Psychiatrist Duncan Campbell had testified in 1983 that

it is detrimental to their [the mentally retarded] well-being to be involved in situations where people are mentally disturbed. I don’t think that they can cope with this well and I think that it causes them very much turmoil. It certainly doesn’t allow them the capacity to develop skills that might be present but perhaps not tapped at that point. So, yes, I think that it is ... detrimental for a person mentally retarded to be involved with the mentally ill daily, regularly.

N.T., August 18, 1983, at 23. Nothing in the record supports appellant’s conclusion that his detention in the May-view forensic unit actually caused the condition of mental illness testified to by Doctor Bowman at the November, 1984 hearing, yet the possibility cannot be denied.

We hold that it was error to commit appellant, suffering only from mental retardation, to the Mayview forensic unit, designed and equipped for the treatment of the mentally ill. The risk to the mental health of such an individual does not comport with constitutional and statutory standards for the proper treatment of the mentally retarded. Such a person is entitled to treatment in a facility where his health is not endangered by involvement with the mentally ill.

Yet the Commonwealth has not provided a secure facility for the treatment of dangerous mentally retarded persons. We fully appreciate the trial court’s appropriate concern for the public interest in protection from a person who would undeniably pose a threat were he free in the community. The Commonwealth must, however, provide a secure facility for the treatment of dangerous mentally retarded individuals, or it must pay for their treatment in an appropriate facility outside the Commonwealth.

We have discussed the threat to appellant’s health which was created by his commitment to a facility for the mentally ill when he was suffering only from mental retardation. As the Supreme Court held in a case challenging conditions in an institution for the mentally retarded, Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28, 37 (1982), it is “unconstitutional to confine the involuntarily committed — who may not be punished at all — in unsafe conditions.” The Supreme Court held that Romeo was entitled to safe conditions of confinement, freedom from bodily restraints and training or habilitation at least sufficient to ensure safety and freedom from undue restraint. Id. at 316-19, 102 S.Ct. at 2458-60, 73 L.Ed.2d at 37-39.

Consistent with this holding is the constitutional “requirement that the least restriction consistent with adequate treatment and required care shall be employed,” as mandated by the Pennsylvania Supreme Court in In re Schmidt, 494 Pa. 86, 96, 429 A.2d 631, 636 (1981). This court has followed the foregoing cases in Interest of Stover, 297 Pa.Super. 116, 120-21, 443 A.2d 327, 329 (1982):

Alleged fire setting should be considered, as should her habilitative needs — neither should operate to the exclusion of the other. Her habilitative needs must be met in an environment consistent with the safety of appellant and the public.

We agree with appellant that she is entitled to placement in the least restrictive alternative available. Statutory law likewise establishes the right to adequate treatment, defined as that “needed to alleviate pain and distress and to facilitate the recovery of a person from mental illness.” 50 P.S. §§ 4201(1), 7102, 7103, 7104.

In keeping with the foregoing discussion, we remand for further proceedings. The Commonwealth must either release appellant or institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen. Appellant is entitled to the procedures mandated by Pennsylvania mental health laws, specifically to notice and a petition which will enable him to prepare a defense, and to treatment in a facility, within or without the boundaries of the Commonwealth of Pennsylvania, which will not pose a threat to his mental health and thus affords him the adequate treatment required by the United States Constitution and the laws of this Commonwealth. Jurisdiction is relinquished.

      . The MHPA was also enacted partially in response to the federal district court decision in Goldy v. Beal, 429 F.Supp. 640 (E.D.Pa.1976), which declared the basic commitment section of the MFI/MR Act, 50 P.S. § 4406, to be unconstitutionally vague due to its circular definition of mental illness. Goldy also resulted in the promulgation of new regulations applicable to the MH/MR Act, codified at 55 Pa.Code § 7500.1 et seq., and published at 6 Pa.Bull. 2883-84 (November 13, 1976), Interest of Stover, 297 Pa.Super. 116, 119, 443 A.2d 327, 328 (1982).

      . At the time of appellant's 1983 commitment, he was the only resident of the Mayview forensic unit who was not suffering from mental illness. N.T., August 18, 1983, at 9. The record contains no further information as to the number of individuals in the state who are in the same category as appellant.
      Sections 503, 508 and 509 of the MH/MR Act, 50 P.S. §§ 4503, 4508 and 4509, establish the financial obligations of the county and the Commonwealth to assure the availability of services under the MH/MR Act.

      . "Habilitation” is commonly used to refer to programs for the mentally retarded because mental retardation is a learning disability and training impairment rather than an illness. The principal focus of habilitation is upon training and development of needed skills. Youngberg v. Romeo, supra, 457 U.S. at 309 n. 1, 102 S.Ct. at 2454 n. 1, 73 L.Ed.2d at 33 n. 1.


author: OLSZEWSKI, Judge:

text:
    509 A.2d 389
    COMMONWEALTH of Pennsylvania v. Darryl ZIGLER, a/k/a Darryl Ziegler, a/k/a Darrell V. Zigler, Appellant.
    Superior Court of Pennsylvania.
    Submitted Peb. 24, 1986.
    Filed May 16, 1986.
    Petition for Allowance of Appeal Denied Oct. 8, 1986.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   OLSZEWSKI, Judge:

Appellant challenges his jury conviction on charges steming from sexual assaults on three children on the grounds that the trial court abused its discretion by allowing three separate informations charging sex related offenses to be consolidated for trial, and that prejudicial comments in the Commonwealth’s closing argument deprived appellant of a fair trial. We find no merit in appellant’s arguments and affirm the judgment of sentence of the court below.

On March 24, 1981, a thirteen year old girl was walking to school when.a man grabbed her from behind and thrust a knife in front of her face. He dragged her through an alley and into a garage where he forced her to engage in anal intercourse with him. Although her assailant wrapped a towel around her face, the girl was able to “inch” the towel away from her eyes and see her attacker.

On July 10, 1981, a man approached a group of boys who were playing in a local schoolyard, and asked if anyone wanted to make a quick dollar. When the boys did not answer him, the man walked away, but one of the boys, an eleven year old, followed him. The man grabbed the boy and dragged him into a garage where he forced the child to engage in anal intercourse with him.

On August 4, 1981, an eleven year old girl was returning home from a candy store located three blocks away. A man grabbed her from behind and put a gun to her back. He forced her down the street in the direction of a school playground. The man took the girl behind a tree in back of the school where he forced her to engage in anal intercourse and other sexual acts with him. He then laced her vagina with dirt.

All three child-victims identified appellant as their attacker. The younger girl selected appellant in both a photo array and a police lineup. The boy was adamant in his identification of appellant during a photo array and also identified appellant as his assailant during trial.

Appellant claims that the lower court erred in denying his motion for separate trials and consolidating the three criminal informations for trial. We disagree.

At the time of appellant’s trial Rule 219(b) of the Pennsylvania Rules of Criminal Procedure was dispositive of this issue. That rule provides that “two or more offenses ... may be charged in the same indictment if they are of the same or similar character____” Pa.R.Crim.P. 219(b). “Although the rule applies specifically to joinder of offenses, (our Supreme Court) has found it equally applicable to the consolidation for trial of separate indictments or informations.” Commonwealth v. Morris, 493 Pa. 164, 170, 425 A.2d 715, 717-718 (1981). See also, Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983).

The propriety of consolidating indictments for trial is within the discretion of the trial judge, and will only be overturned where there has been a “manifest abuse of discretion or prejudice and clear injustice to the defendant.” Morris, 493 Pa. at 171, 425 A.2d at 718. Such abuse will not be found where evidence of each particular crime would be admissible in separate trials of the other offenses, and the evidence is separable and distinct. Morris, 493 Pa. at 170-174, 425 A.2d at 718-719; Commonwealth v. King, 290 Pa.Super. 563, 573, 434 A.2d 1294, 1299 (1981).

In Morris, the Supreme Court held that “offenses may be joined or indictments may be consolidated where the separate offenses show the defendant’s unusual or distinctive modus operandi. Morris, 493 Pa. at 176, 425 A.2d at 720. Evidence of other crimes is admissible where proof of one crime naturally tends to show who committed the other. Id. Commonwealth v. Laurenson, 323 Pa.Super. 46, 470 A.2d 122 (1983).

The circumstances of the three criminal episodes consolidated for trial here were sufficiently similar, and the offenses were sufficiently linked temporally and spatially to make them admissible in separate prosecutions and to support consolidation for trial. Additionally, none of the fact situations is so complicated nor are any of the incidents intertwined so as to confuse the jury or make the jury incapable of separating the offenses. For these reasons the lower court did not abuse its discretion when it allowed the three informations to be consolidated for trial.

Appellant’s second argument is that prejudicial comments made by the prosecutor during closing argument deprived appellant of a fair and impartial trial and constitute reversible error. There is some question of whether objection was made at trial to the remarks appellant challenges, or was waived. See Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975). Our Supreme Court has “consistently ruled that comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). The challenged remarks do not fall within this category, nor do they belong to that class of forbidden remarks in which the prosecutor expresses his personal belief. See Id.

Judgment of sentence affirmed.

      . The controlling law on this subject is now contained in Pennsylvania Rule of Criminal Procedure 1127 which became effective July 1, 1982. Rule 1127 provides that:
      (1) Offenses charged in separate indictments or informations may be tried together if:
      (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion.
      Pa.R.Crim.P. 1127(A)(1). Since Rule 1127 codified the already existing standard, analysis under either rule is the same.


text:
    509 A.2d 391
    COMMONWEALTH of Pennsylvania v. Norman Russell TURNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 25, 1985.
    Filed May 16, 1986.

      Norman R. Turner, Pittsburgh, for appellant.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CIRILLO, BECK and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from an Order entered April 9, 1985, in the Court of Common Pleas of Allegheny County denying appellant’s petition for post-conviction relief.

In 1979, appellant, Norman Russell Turner, was charged with twenty-six (26) counts of burglary (18 Pa.C.S.A. § 3502) and ten (10) counts of theft by unlawful taking or disposition (18 Pa.C.S.A. § 3921). On January 30, 1980 appellant entered a general plea of guilty to all charges. He was sentenced to two (2) consecutive ten (10) year probationary term and sentence was suspended at counts three (3) through thirty-six (36) by virtue of those sentences. Appellant filed no post-verdict motions, no post-sentence petition to withdraw the guilty plea and no direct appeal.

During the probationary term, appellant was arrested’ four (4) times and convicted three (3) times. Of these arrests the most recent was on February 14, 1983. On August 15, 1983, the Honorable Bernard L. McGinley accepted appellant’s guilty plea to burglary and sentenced appellant on March 22, 1984 to undergo a term of imprisonment of not less than two and one-half (2V2) years, nor more than five (5) years. On the same date appellant appeared before the Honorable John L. Musmanno on a probation violation based upon his latest burglary conviction. Appellant waived his right to a Gagnon I hearing and proceeded directly to a Gagnon II hearing. Appellant filed a Motion to Reinstate Probation which was argued at the time of the probation violation hearing.

At the conclusion of the hearing the court revoked appellant’s probation and sentenced him to two (2) to ten (10) years imprisonment, to run concurrent with the sentence appellant was presently serving as well as the burglary sentence imposed by Judge McGinley. Appellant filed no motion to modify sentence nor did he file an appeal.

Thereafter on June 15, 1984, the appellant filed a pro se post-conviction petition from the denial of which the instant appeal was taken.

Appellant now seeks review before this Court on two bases in addition to that upon which the court below denied relief. Appellant alleges ineffective representation by both revocation hearing counsel and P.C.H.A. counsel; the former by reason of his failure to appeal directly to this Court from the denial of appellant’s motion for reinstatement of probation when, according to appellant, he had specifically requested counsel to do so; and the latter for failure to amend appellant’s post-conviction petition to reflect the ineffectiveness of prior counsel as indicated.

In his first issue appellant contends that counsel appointed to represent him as a petitioner for post-conviction relief from a prior revocation of probation and subsequent prison term, was ineffective, having failed to amend appellant’s petition to effectively assert appellant’s claims.

As the Commonwealth points out in its brief, appellant is entitled to some relief.

Pronouncements by both this Court and the Pennsylvania Supreme Court in interpreting statutory material relevant to this area; namely, 42 Pa.C.S.A. Section 9541, et seq., and Pa.R.Crim.Pro. 1504, indicate not only that counsel must be appointed “as justice requires”, but also that the failure of counsel to amend an inarticulately drafted post-conviction petition renders such a petition uncounseled and in violation of the statutory mandate. Commonwealth v. Miller, 325 Pa.Super. 163, 166, 472 A.2d 698, 699 (1984); Commonwealth v. Ollie, 304 Pa.Super. 505, 506-510, 450 A.2d 1026, 1027, 1028 (1982).

As elaborated by this Court in the case of Commonwealth v. Ollie, supra, 304 Pa.Superior Ct. at 508, 450 A.2d at 1028 quoting from the case of Commonwealth v. Carrie, 494 Pa. 305, 308-310, 431 A.2d 271, 273 (1981);

The mandatory appointment of counsel requirement of the Post-Conviction Hearing Act is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.

Should such representation fail in its objectives due to the cognizable ineffectiveness of counsel, the petitioner is entitled to a reversal of the P.C.H.A. court’s adverse decision, as well as the appointment of new counsel regardless of the merit of any issues previously asserted Id. at 1028.

In his second issue appellant contends that appointed counsel at the probation revocation hearing failed to file a direct appeal from the sentence there imposed in opposition to appellant’s request.

If such a request was indeed made, a matter which is itself open to speculation and not subject to verification within the pages of the record, disregard thereof would admittedly constitute a recognized breach of appellant’s right to appellate review. This Court has specifically held that where no determination can be made in reliance upon the record as to counsel’s motivation in failing to pursue an appeal, the case must be remanded for an evidentiary hearing on that factual issue. Commonwealth v. Howell, 290 Pa.Super. 144, 147, 434 A.2d 171, 172 (1981). If appellant is successful in establishing the factual basis for relief then the evidentiary hearing should be followed by reinstatement of appellant’s right to file a motion to modify sentence nunc pro tunc.

In his final issue appellant contends that a seven (7) month delay between the date of his conviction and that of the consequent probation revocation hearing, incurred in anticipation of sentencing, unduly prejudiced his cause. The court below has adequately addressed this issue and we affirm the court’s holding concerning delay of the probation hearing. However, we remand on the questions of ineffectiveness of counsel with instructions to conduct an evidentiary hearing.

Order affirmed as far as it concerns the delay of the probation hearing; remanded on questions of counsels’ ineffectiveness with instructions to conduct an evidentiary hearing.

BECK, J., concurs in the result.