author: MONTEMURO, Judge:

text:
    453 A.2d 671
    COMMONWEALTH of Pennsylvania v. Jerry M. HATFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued April 26, 1982.
    Filed Dec. 10, 1982.

      Peter M. Suwak, Washington, for appellant.
    Daniel Lucian Chunko, Assistant District Attorney, Washington, for Commonwealth, appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

Appellant was convicted of meeting or overtaking a school bus in a summary proceeding before a district justice. He contends that the summary proceeding was improperly commenced and that consequently he is entitled to discharge. We agree.

On October 27, 1980, a citation averring a violation of Section 3345(a) of the Motor Vehicle Code was filed by Trooper James E. McFadden of the Pennsylvania State Police with District Justice Marjorie Teagarden in Washington, Pennsylvania. The violation allegedly occurred on October 24,1980. Trooper McFadden was not present when this incident is said to have occurred and he did not make an on-scene investigation of the incident. Instead, he relied solely on the information received in a telephone call from the school bus driver who witnessed the incident. No private complaint was filed by the bus driver, although he did testify at the hearing before the district justice.

The appellant was found guilty and an appeal was taken to the Court of Common Pleas of Washington County for a hearing de novo, in which the appellant was again found guilty. Post-verdict motions were denied by the court en banc and a timely appeal was taken to this court.

Appellant’s primary contention is that he is entitled to discharge because the Commonwealth did not use the proper method of instituting the summary proceeding below. Specifically, he argues that the proceeding should have been commenced by the filing of a private complaint pursuant to Rule 51 A(4), rather than by filing of a citation pursuant to Rule 51 A(l)(b), where the police officer-affiant neither witnessed the violation nor made an on-scene investigation. The Commonwealth counters with the contention that Rule 51 A(l)(b) provides for situations like the one herein and that the procedure used was proper. A close examination of Rule 51 persuades us the appellant’s interpretation is correct.

Rule 51 provides three methods for the institution of summary proceedings for traffic violations according to the circumstances under which the violation is witnessed and reported. The Rule states in pertinent part:

Rule 51. Means of Instituting Proceedings in Summary Cases.
A. Criminal proceedings in summary cases shall be instituted in the following manner:
(1) Traffic Offenses (Other than Parking)
(a) Except as provided by subparagraphs A(l)(b) and (c), a citation shall be issued to the defendant by a police officer, who shall be in uniform, when the offense charged is a violation of a traffic ordinance or when it is a summary offense under the Vehicle Code; or
(b) A citation (rather than a complaint) shall be filed with an issuing authority by a police officer when the offense charged is a violation of a traffic ordinance or is a summary offense under the Vehicle Code, when the police officer is not in uniform, or when it is not feasible for him to issue a citation to the defendant, or when evidence is discovered after the issuance of a citation which gives rise to additional summary charges against the defendant resulting from the same incident. The issuing authority shall thereupon issue a summons and not a warrant of arrest except as provided in Section B(3) of this Rule. Thereafter, the case shall proceed as provided in Rules 57 and 59.
(4) Private Complaints. A complaint shall be filed with an issuing authority when the affiant is not a police officer as described in Section C of this Rule. If the issuing authority decided to issue process, he shall issue a summons and not a warrant of arrest except as provided in subsection B(3) of this Rule. (Emphasis added)

The specific provision relied upon by the Commonwealth in support of their contention is that the citation filing procedure is to be used when “it is not feasible for him [the police officer] to issue a citation to defendant.” We find this interpretation to be incorrect inasmuch as the provision seems to be directed toward specific situations not applicable herein, and additionally, this interpretation would create manifold problems which are better avoided.

There are four problems with allowing the use of the citation-filing procedure in the circumstances herein. First, each citation filed by a police officer with an issuing authority is required to comport with Pa.R.Crim.P. 53(a), which sets forth the form of the citation filed. Each citation contains an affidavit in which the police officer-affiant “being duly sworn (affirmed) according to the law, deposes and says that the facts set forth in the foregoing citation are true and correct.” Allowing a police officer to swear to facts of which he has no knowledge, either by direct observation or on-scene investigation, is an anomoly we will not countenance. Second, there is a possibility that a defendant would not be aware of the identity of the witness to the alleged violation prior to trial. This would severely hamper the defendant’s ability to effectively cross-examine the witness, thus impairing his ability to properly prepare his defense. Third, allowing the use of this procedure would vitiate the private complaint procedure set forth in Rule 51 A(4). We are required to the interpret and construe rules in a way which will give effect to all it provisions. 1 Pa.C.S.A. § 1921(a). Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981). Finally, the citation-filing procedure could be subverted to personal ends in that a putative witness could fabricate a violation in order to harass or annoy others. We cannot allow the courts to be a vehicle for such an offensive tactic.

Finally, we recognize past holdings of this court which required that Rule 51 be strictly construed. Commonwealth v. Wagner, 272 Pa.Super. 457, 416 A.2d 546 (1979); Commonwealth v. Jonnet, 265 Pa.Super. 315, 401 A.2d 1228 (1979); Commonwealth v. Shelton, 260 Pa.Super. 82, 393 A.2d 1022 (1978). In light of all of these factors, we hold that Rule 51 requires that a summary proceeding be instituted by the filing of a private complaint and not by a filing of a citation in instances when the police officer has not witnessed the violation nor made an on-scene investigation.

Accordingly, we reverse the order of the lower court and order the appellant discharged.

      . 75 Pa.C.S.A. § 3345.

      . The appellant also contends that he is entitled to discharge because the trial court rendered its verdict more than three (3) days after trial, in violation of Pa.R.Crim.P. 1122. It is not necessary to reach this issue because of our decision today.

      . Pa.R.Crim.P., Rule 51, 42 Pa.C.S.A.

      . The language “when it is not feasible for him to issue a citation to the defendant” refers to instances where the police officer observing the violation for one reason or another is unable to issue a citation directly to the defendant. In Commonwealth v. Lombardo, 4 Pa.D. & C.3d 106 (1977), a police officer instituted summary proceedings under Rule 51 A(l)(b) by filing a citation when he was unable to immediately interview a witness to an accident who was crucial to the determination of whether or not to cite the defendant. The court ruled that this was proper. Other instances might include a chase of a speeding vehicle where the officer is able to obtain the license number, but unable to apprehend the driver or when an officer discovers a violation but is occupied with other business and unable to issue a citation directly.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    453 A.2d 674
    BUILDERS OF SANITARY SEWERS, INC. v. TAMAQUA BOROUGH AUTHORITY and Gannett, Fleming, Corddry and Carpenter, Inc. Appeal of TAMAQUA BOROUGH AUTHORITY.
    Superior Court of Pennsylvania.
    Submitted May 11, 1982.
    Filed Dec. 10, 1982.

      Thomas J. Nickels, Pottsville, for appellant.
    Pasco L. Schiavo, Hazelton, for Builders of Sanitary Sewers, appellee.
    John B. Lieberman, III, Mahanoy City, for Gannett etc., appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   PER CURIAM:

Appellant contends that the lower court erred in (1) finding that appellee had not breached its contract with appellant; and (2) dismissing its counterclaim. We are unable to reach the merits of appellant’s contentions, however, because the lower court has failed to address them in its opinion below. Accordingly, we must remand.

On January 8, 1974, appellant contracted with appellee, Builders of Sanitary Sewers, Inc. (BOSS) for construction and installation of a water main in Schuylkill County. A dispute arose during construction and appellant, with its engineer, Gannett, Fleming, Corddry and Carpenter, Inc. (Engineer), ordered BOSS off the job. Another contractor completed the work. BOSS sued appellant and Engineer, prompting a counterclaim by appellant. After a nonjury trial, the lower court awarded BOSS an $18,322 verdict against appellant, dismissed appellant’s counterclaim, and granted a non-suit in favor of Engineer. Appellant then filed the following post-trial motions:

1. The Court erred in that the verdict is against the weight and credibility of the evidence.
2. The Court erred in that [BOSS] breached its contract with the borough of Tamaqua Authority as a matter of law.
3. The defendant excepts to the dismissal of its Counterclaim.
4. Defendant, Tamaqua Borough Authority, excepts to the entry of a compulsory non-suit in favor of Gannett, Fleming, Corddry and Carpenter, Inc. on the basis that Borough Authority terminated its contract with [BOSS] on the advice from the engineers.
5. Defendant requests leave of Court to supplement these exceptions with other exceptions which may become apparent when the record is transcribed, as the non-jury trial took place over a period of six months and was a highly complicated and protracted case.

The lower court dismissed the first three exceptions as too general, addressed the fourth, and refused appellant’s request to file supplemental exceptions. This appeal followed.

Although it is well-settled that boiler-plate post-verdict motions will not preserve allegations of error for appeal, Commonwealth v. Pronkoskie, 498 Pa. 245, 253, 445 A.2d 1203, 1207 (1982); Commonwealth v. Philpot, 491 Pa. 598, 600, 421 A.2d 1046, 1047 (1981), we cannot agree with the lower court that appellant’s second exception is too general to allow the court “to intelligently rule” upon it. Lower Court Op. at 3. Appellant’s exception alleged that the lower court’s verdict for BOSS in both the original suit and the counterclaim was in error because BOSS had breached the contract as a matter of law. Thus, the lower court was required to explain its apparent finding that BOSS had complied or substantially complied with the terms of the contract. We find the exception sufficiently specific to preserve the issue and, accordingly, remand the matter and direct the lower court to address its merits.

Similarly, we find that the lower court abused.its discretion in finding appellant’s request to file additional exceptions improper. “[I]t is within the discretion of the trial court to allow exceptions under [Pa.R.Civ.P.] Rule 1038(d) to be filed out of time in a case where the particular circumstances indicate that there are good and sufficient reasons for so doing,” and its decision will not be disturbed absent an abuse of that discretion. E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 614, 381 A.2d 441, 443 (1977). Appellant, averring that the “trial took place over a period of six months and was a highly complicated and protracted case,” requested that the lower court permit additional exceptions after the filing of the transcript. Rather than determine the sufficiency of appellant’s reasons for the request, however, the lower court dismissed it as procedurally improper. Although we agree with the lower court that the proper procedure for seeking an extension of time to file additional exceptions is to petition for a rule to show cause why the request should not be granted, see id., 475 Pa. at 612 n. 3, 381 A.2d at 442 n. 3, we cannot agree that the procedure employed here failed to adequately present the issue to the court below. Appellant presented its request within the time required for filing exceptions and stated its reasons for seeking the extension. Had the lower court needed a more detailed or better framed explication of the issue, it certainly could have ordered the issue briefed and argued. See Pa.R.Civ.P. 211. In choosing to ignore the underlying merit of appellant’s request and, instead, summarily dismissing it, the lower court has sacrificed justice for the sake of procedure. “Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives.” McKay v. Beatty, 348 Pa. 286, 286-87, 35 A.2d 264, 265 (1944). “The niceties of procedure and pleading make fine intelligence games for lawyers but should never be used to deny ultimate justice. This is the reason for our modern approach to rules of civil procedure.” Pomerantz v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280, 1281 (1978), quoting Godina v. Oswald, 206 Pa. Superior Ct. 51, 55, 211 A.2d 91, 93 (1965). In fact, Pa.R. Civ.P. 126 provides that:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The Court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Appellant apprised the lower court and appellees of its request and accompanying reasons within twenty days after the decision. No substantial rights of the parties would have been affected had the court addressed the merits of that request. In refusing to reach the merits, the court has abused its discretion, and thus we must remand for a determination of whether appellant’s reasons for the requested extension are sufficient to grant relief. Jurisdiction is retained.

So ordered.

      . Appellant does not challenge the grant of the non-suit on this appeal.

      . We agree with the lower court that appellant’s first and third exception by themselves, amounted to nothing more than boilerplate motions and thus, did not preserve any issues for our review.

      . We cannot address the issue in the first instance, however, because its resolution requires the evaluation of the weight and credibility of testimony we have not witnessed.


text:
    453 A.2d 677
    C. William NYE, Jr., Individually and as Administrator of the Estate of Karen L. Nye, Deceased, and all others similarly situated, Appellant, v. ERIE INSURANCE EXCHANGE, et al. C. William NYE, Jr., Individually and as Administrator of the Estate of Karen L. Nye, Deceased, and all others similarly situated, Appellant v. ERIE INSURANCE EXCHANGE, et al.
    Superior Court of Pennsylvania.
    Argued March 22, 1982.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Granted March 13, 1983.

      Richard C. Angino, Harrisburg, for appellant.
    Jeffrey B. Rettig, Harrisburg, for Erie, appellee (at No. 43).
    Clyde W. McIntyre, Harrisburg, for Erie, appellee (at No. 184).
    Edward E. Knauss, Harrisburg, for CNA, et al., appellees.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   PER CURIAM:

These are consolidated appeals arising out of a class action suit instituted by C. William Nye, Jr. (hereinafter Nye), against Erie Insurance Exchange (hereinafter Erie) and thirty other insurance companies. These appeals were taken respectively from the lower court’s orders dated February 4, 1981, dismissing the complaint as to all of the defendants except Erie (No. 43 Harrisburg 1981), and June 4, 1981 (No. 184 Harrisburg 1981) dismissing the complaint as to Erie. We will address the appeals separately in the order in which they were taken.

Nye is the administrator of the estate of his deceased daughter, Karen L. Nye, who was killed in an automobile accident December 21, 1978. At the time of the accident, Karen Nye was covered by a no-fault motor vehicle insurance policy issued by Erie. Following Karen Nye’s death, Nye submitted a claim to Erie for work loss benefits, but the claim was refused. Thereafter, on November 15,1979, Nye, acting as the administrator for his daughter’s estate, instituted a class action suit against Erie and thirty other insurance companies which allegedly followed a practice of refusing to pay work loss benefits to the estates of deceased victims.

All of the defendants except Erie filed preliminary objections to the complaint in which they argued that because Karen Nye did not have a contract of insurance with them, her personal representative did not have a cause of action against them and, therefore, he also lacked standing to represent a class of plaintiffs in an action against them. The lower court accepted this argument and, on February 4, 1981, it entered an order dismissing the complaint as to all of the defendants except Erie. The first appeal followed.

The lower court based its decision to dismiss the complaint as to all the defendants except Erie on its belief that prudent judicial policy requires that a plaintiff have a direct adversarial relationship with the defendant. The court below was persuaded by the analysis of a federal decision limiting class actions to cases where the plaintiff had such a direct relationship with the defendant. See Weiner v. Bank of King of Prussia, 358 F.Supp. 684 (E.D.Pa.1973). Yet federal law is not controlling because federal law on standing has developed in response to the constitutional limitation of the judicial power of the United States to cases and controversies. U.S.Const. art. Ill, § 2, cl. 1.

We are not bound by the federal law of standing and our recent decision in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982), leads us to the conclusion that justice and judicial economy will be served by allowing Nye to maintain a class action suit. The Freeze decision clearly allows an estate to recover work loss benefits; thus, Nye and the other class members are entitled to the benefits they seek to obtain in this suit. If Nye is not permitted to maintain this suit all the class members would be forced to file individual suits to vindicate their rights. To thrust numerous members of a class into separate actions would be an intolerable waste of judicial resources when the claims of all plaintiffs may be expeditiously settled in one suit. Class actions can be a fair and efficient method of resolving disputes and to subject the parties and the court system to the hazards and expenses of separate litigation in this context would eviscerate the purpose of the class action as a “procedural device designed to promote efficiency and fairness in the handling of large numbers of similar claims.” Lilian v. Commonwealth, 467 Pa. 15, 21, 354 A.2d 250, 253 (1976).

Having decided that Nye should be allowed to maintain a class action suit we turn to the issue presented by the second of these consolidated appeals. After ruling that Nye could not maintain a suit against any insurance company but Erie, the court below ordered Nye to amend his complaint against Erie to show the existence of dependent survivors. Reproduced Record at 37a 39a. The complaint was not amended; on June 4, 1981, Nye’s suit was dismissed for failure to amend his complaint. The holding in Freeze is explicit: “the estate of a deceased victim is entitled to recover work loss benefits under the No-fault Act.” Freeze, supra, 301 Pa.Super. at 354, 447 A.2d at 1004. The court below, therefore, erred when it ordered Nye to amend his complaint to plead dependency.

The orders appealed from at No. 43 Harrisburg 1981 and No. 184 Harrisburg 1981 are reversed. The Superior Court of Pennsylvania relinquishes jurisdiction and remands for proceedings consistent with this opinion.

WICKERSHAM, J., did not participate in the decision or consideration of this case.

      . The question before us at No. 43 Harrisburg 1981 is only whether Nye has standing to bring a class action suit. We do not, therefore, decide whether Nye satisfies the prerequisites to a class action set forth in Pa.R.C.P. No. 1702, which provides:
      Rule 1702. Prerequisites to a Class Action
      One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
      (1) the class is so numerous that joinder of all members is impracticable;

        (2) there are questions of law or fact common to the class;
      (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
      (4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
      (5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.
      Nevertheless, Nye certainly appears to meet these prerequisites as well as the criteria of Pa.R.C.P. Nos. 1708 and 1709. See generally Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 431 A.2d 883 (1981); ABC Sewer Cleaning v. Bell of Pennsylvania, 293 Pa.Super. 219, 438 A.2d 616 (1981) and Scott v. Adal Corp,, 276 Pa.Super. 459, 419 A.2d 548 (1980).


author: HESTER, Judge:

text:
    453 A.2d 982
    COMMONWEALTH of Pennsylvania v. Marilyn A. LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1982.
    Filed Nov. 30, 1982.

      Stanley W. Greenfield, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellant, Marilyn A. Lewis, was charged with one count of barratry, a misdemeanor of the third degree, for having intentionally filed numerous unjust and vexatious lawsuits against Richard E. Lewis, Jr., her former husband, personally or pertaining to his business and property.

The nature, relevant information and disposition of said cases are as follows:

Date filed Caption of Case Court Disposition

10/6/76 Comm, of Pa. (Marilyn Lewis) v. Richard E. Lewis CC 7608963 Court of Common Pleas of Ally. County (CrimSimple Assault.) Defendant found not guilty by Judge Brosky 2/22/77

12/1/76 Comm, of Pa. (Marilyn Lewis) v. Richard E. Lewis, Jr. No. 395 of 1976 District Justice Bernard J. Regan (Simple Assault & Harassment.) Dismissed by District Justice 1/19/77

Date filed Caption of Case Court Disposition

12/27/76 First Lemington Corp & Key Properties, Inc. v. Richard Lewis, et al. C.A. No. 76-1623 U.S. District Court for the Western District of Pa. Dismissed by Judge Snyder 12/1/77.

Spring 1977 Marilyn A. Lewis v. Richard E. Lewis, Jr. No. 232 of 1977 Court of Common Pleas of Allegheny County (Rental Suit.) Verdict in favor of both Mr. Lewis ($832.18) & Mrs. Lewis ($820.00)

6/3/77 Marilyn Lewis v. Judge Richard G. . Zeleznik, James Lally, Peter J. King & Richard E. Lewis, Jr. CA No. 77-503 U.S. District Ct. for the Western District of Pa. (Civil Rights violation, seeking damages) Dismissed by Judge Teitelbaum 9/1/77

11/77 Marilyn Lewis v. Richard E. Lewis, Jr. District Justice Meinert TA 1977-384 TA 1977-385 (2 civil suits for personal property of $35,000.00) Dismissed by District Justice 12/22/77

12/27/77 Marilyn A. Lewis v. Peter J. King & Richard E. Lewis, Jr. G.D. 77-30126 Court of Common Pleas of Allegheny County Equity & damages of $110,000.00 Dismissed by Judge Flaherty

On September 19, 1978, the jury returned a verdict of guilty. Subsequently, appellant filed timely post-verdict motions which were denied. Appellant was then sentenced to a period of incarceration of six (6) to twelve (12) months and fined one thousand two hundred fifty ($1,250.00) dollars.

Appellant raises two issues on appeal: 1) whether the barratry statute is unconstitutionally vague?; and 2) whether the Commonwealth’s evidence was sufficient to sustain its’ burden of proof that the suits filed by Mrs. Lewis were unjust?

Regarding appellant’s first contention, it must be noted that the issues that are being examined in this appeal are those of first impression to a Pennsylvania appellate court, in that, this is a charge seldom instituted in this Commonwealth. See Commonwealth v. Gardner, 3 Lanc. 139 (1886); Donohue v. McGroarty, 1 Kulp. 238, 9 Luz.L.Reg.Rep. 281 (1879). The offense of barratry is defined at 18 Pa.C.S.A. § 5109:

A person is guilty of a misdemeanor of the third degree if he vexes others with unjust and vexatious suits.

Also, it must be noted that absent an assertion of First Amendment freedoms, the specificity of a statute must be measured against the conduct in which the parties challenging the statute has engaged:

“It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand, [citations omitted]” United States v. Mazurie, 419 U.S. 544, 550 [95 S.Ct. 710, 714, 42 L.Ed.2d 706] (1975); Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 245 (1976).

See also Comment, Recent Supreme Court Developments of the Vagueness Doctrine, 7 Conn.L.Rev. 94,100 (1974); Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960) [hereinafter cited as Pa. Note.] Since appellant makes no assertion that application of the barratry statute could result in an infringement of a First Amendment right, we must judge the specificity of the barratry statute in light of appellant’s particular conduct. Therefore, it is incumbent that we examine the standards which govern this determination.

A criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction. Statutes which are so vague that they fail to provide such notice violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).

See also United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-598, 9 L.Ed.2d 561 (1963); Commonwealth v. Heinbaugh, 467 Pa. at 5, 354 A.2d at 246; Comment, Public Disorder Offenses Under Pennsylvania’s New Crimes Code, 78 Dick.L.Rev. 15, 33 (1973); Pa.Note supra at 75. Statutes which are challenged on the ground of vagueness are not, however, to be tested against paradigms of legislative draftmanship. “The fact that [the legislature] might without difficulty have chosen ‘clear and more precise language’ equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague.” United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975); Commonwealth v. Heinbaugh, 467 Pa. at 6, 354 A.2d at 246. Rather, the requirements of due process are satisfied if the statute in question contains reasonable standards to guide the prospective conduct. United States v. Powell, supra; Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Pa.Note, supra at 80; cf. Horvath v. City of Chicago, 510 F.2d 594, 595 (7th Cir.1975); Commonwealth v. Heinbaugh, 467 Pa. at 6, 354 A.2d at 246; Freund, The Use of Indefinite Terms in Statutes, 30 Yale L.J. 437 (1921); Note, Due Process Requirements of Definitions in Statutes, 62 Harv.L.Rev. 77, 80 (1948).

In Powell, the Supreme Court applied the above-mentioned criteria to a criminal statute prohibiting the mailing of “firearms capable of being concealed on the person.” In holding the statute sufficiently precise, the Court concluded:

“While doubts as to the applicability of the language in marginal fact situations may be conceived, we think that the statute gave respondent adequate warning that her mailing of a sawed-off shotgun of some 22 inches in length was a criminal offense. Even as to more doubtful cases than that of respondent, we have said that ‘the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.’ ” [citation omitted] United States v. Powell, 423 U.S. at 93, 96 S.Ct. at 320; Commonwealth v. Heinbaugh, 467 Pa. at 7, 354 A.2d at 247.

Compare also United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921) with Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 (1932). It seems clear, then, that when an ascertainable standard is present in a statute, the violator whose conduct falls clearly within the scope of such standard has no standing to complain of vagueness. This leads us to question whether such a standard is present in this case.

Barratry was an indictable offense at common law. It was defined as “the crime or offense of frequently stirring up suits and quarrels between individuals, either at law or otherwise.” 9 C.J.S., Barratry, § 1, p. 1546; State v. Batson, 220 N.C. 411, 412, 17 S.E.2d 511, 512 (1941); 4th Blackstone, pp. 125, 134. While the language of the challenged Pennsylvania barratry statute differs in some respects from this common law definition, there is no difference in meaning. Accordingly, we conclude that the statutory language “vexes others with unjust and vexatious suits,” must be read as restating the established common law standard which has long existed in this Commonwealth.

Statutes which embody well-settled common law norms stand on a footing somewhat different than statutes which attempt to circumscribe conduct newly proscribed. Commonwealth v. Heinbaugh, 467 Pa. at 8, 354 A.2d at 247; Pa.Note, supra at 87. Because the former group merely reiterate customary normative standards, the prohibitory language need not be drawn with the precision that a newly-conceived interdiction might require. Commonwealth v. Heinbaugh, 467 Pa. at 8-9, 354 A.2d at 247; Commonwealth v. Zasloff, 338 Pa. 457, 13 A.2d 67 (1940); see e.g., Smith v. Goguen, supra (contemptuousness of the flag). Thus, statutes which embody common law definitions have generally survived attacks structured on the grounds of vagueness. See e.g., Connally v. General Construction Company, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Commonwealth v. Heinbaugh, 467 Pa. at 9, 354 A.2d at 247; Pa.Note, supra at 87. Our question, then, reduces itself to whether the common law norm relative to barratry and now embodied in the Crimes Code is sufficiently definite when applied to the conduct in which the appellant was engaged.

There can be no doubt that many of the suits instituted by appellant against her former husband, were initiated to harass him following their unamicable divorce and the proceedings resulting therefrom. While appellant’s actions initiated against her former husband at CC 7608963, No. 395 of 1976, and No. 232 of 1977, appeared from testimony to have some justification, the remaining five suits were clearly unjust. Special mention must be made of the suits brought at G.D. 77-30126 and C-A No. 77-503. Paragraphs 10-12 of the action filed pro se by appellant at G.D. 77-30126 contain extreme obscene and vulgar allegations against Mr. Lewis. Copies of these allegations were mailed to Mr. Lewis’ mother, brothers, sisters, a fraternal organization, a bar he frequented, two union officials, his attorney, his attorney’s law firm, and his girlfriend. Testimony revealed that neither Mr. Lewis, his attorney, nor the prothonotary mailed those copies of the complaint. These charges were dismissed by the court below when appellant failed to appear. At trial on this action, these abhorrent accusations were found to be groundless.

Regarding the action filed at C-A No. 77-503, appellant instituted suit against the Honorable Richard G. Zeleznik, James Lally, Peter J. King, and her former husband. One of appellant’s allegations in this action is as follows:

“At various times and places, more specifically set forth in the following counts, the defendants by their acts of commission and omission have unlawfully, wrongfully, maliciously and knowingly conspired to deprive plaintiff of her rights under the Constitution and the laws of the United States and are continuing to do so, causing her extreme mental and emotional distress and causing her two minor children serious physical, mental, emotional and developmental injury of a permanent and irreparable nature in addition to causing plaintiff financial losses in excess of $10,000.00, all to her injury and detriment and to the permanent and irreparable injury and detriment of her children.”

In dismissing this action, the United States Court for the Western District of Pennsylvania opined:

“The basis for denial is the complete lack of any credible evidence to support plaintiffs’ contentions. .. (T)he initiation of this proceeding is outrageous”.

The remaining three suits filed against Mr. Lewis by the appellant or her company concerned the couple’s property, and all were subsequently dismissed.

In addition to the annoyance, embarrassment and harassment of having to defend these meritless suits, Richard E. Lewis also suffered a substantial monetary loss due to attorneys’ costs and lost wages due to the time spent in court.

It is undisputable that the barratry statute contains a standard sufficiently normative to inform the appellant that her conduct was in violation thereof.

The final issue raised by appellant concerns the sufficiency of the evidence. In Commonwealth v. Rose, 463 Pa. 264, 267-268, 344 A.2d 824, 825-826 (1975), the Supreme Court stated:

“The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced.... The fact-finder is free to believe all, part, or none of the evidence.” (Citations omitted.)

Viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, we are of the considered opinion that the evidence presented by the Commonwealth was sufficient to establish beyond a reasonable doubt that the suits filed by the appellant were “unjust”. See pp. 985-986 of Opinion.

Judgment of sentence affirmed.

      . See, e.g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1973); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).

      . In contrast, the Supreme Court has upheld a vagueness challenge to a statute proscribing conduct deemed “contemptuous of the flag.” The court reasoned that the statutory language in question was so nondescript and so broad in sweep that it could not convey to the accused a reasonably ascertainable standard against which to gauge contemplated action. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); See also Commonwealth v. Heinbaugh, 467 Pa. at 6-7, 354 A.2d at 246.

      . At trial, the couple’s son testified that his father had grabbed him and thrown him into a step and had also subsequently kicked him twice. Moreover, the couple’s daughter testified that her father had “smashed” a window and had generally harassed the family. These incidents resulted in the actions at No. 395 of 1976 and CC 7608963 being filed. As to the suit filed at No. 232 of 1977, judgment was entered for both appellant and her husband.


author: WATKINS, Judge: CAVANAUGH, Judge,

text:
    453 A.2d 987
    Pauline COLODONATO and James Colodonato v. CONSOLIDATED RAIL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1982.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Granted May 19, 1983.
    George J. McConchie, Media, for appellant.
    Henry B. Fitzpatrick, Philadelphia, for appellees.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the Judgment of the Court of Common Pleas of Delaware County by which damages for delay were added to the jury’s award of both compensatory and punitive damages.

This action in trespass arose out of the rape of the wife-appellee in the suburban station in Philadelphia on June 23, 1976. The jury returned verdicts for both plaintiffs. Mrs. Colodonato was awarded compensatory damages of $250,000 and punitive damages of $500,000. Her husband was awarded $25,000 in compensatory damages.

The issue before the court arises from plaintiffs’ motion to mold the verdict under Pa.R.C.P. 238. The question is whether Pa.R.C.P. 238, providing for the imposition of damages for delay in certain circumstances, applies to that portion of the jury’s verdict that awarded punitive damages to Mrs. Colodonato. The court below awarded, without breakdown damages for delay on the total verdict of $750,-000 in favor of Mrs. Colodonato. Of the total award for delay damages, exactly two-thirds or $76,805.53 was computed on the punitive damages of $500,000. It is this sum that is in dispute between the parties and that is the subject of this appeal.

The pertinent part of Pa.R.C.P. 238 is as follows:

“.. . in an action seeking monetary relief for bodily injury, death or property damage .. . the court . . . shall (1) add to the amount of compensatory damages in the verdict of a jury . . . damages for delay at ten (10) percent per annum, not compounded, which shall become part of the . .. verdict...”

Plaintiffs-appellees contend that the rule is meant to apply to both compensatory and punitive damages. Since the issue has never been before the court, the exact meaning of the rule must be ascertained from the sparse case law dealing with that particular rule and also rules of construction.

The distinction between compensatory and punitive damages was explained in Esmond v. Liscio, 209 Pa. Superior Ct. 200, 224 A.2d 793 (1966). In that decision, it was held that “punitive damages are in no sense intended as compensation to the injured plaintiff. They are, rather, a penalty, imposed to punish the defendant and to deter him and others from ‘outrageous’ conduct”. The function of compensatory damages, on the other hand, is primarily “to shift the loss from a wholly innocent party to one who is at fault”.

According to Pa.R.C.P. 127:

“... When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”

If one reads Pa.R.C.P. 288 in light of the provisions of Pa.R.C.P. 127, it becomes clear that damages for delay are to be computed on compensatory damages only.

The purposes of Pa.R.C.P. 288 were enunciated in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), which upheld the constitutionality of the rule. According to the Supreme Court “this rule serves to compensate the plaintiff for the inability to utilize funds rightfully due him, but the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.” In the course of further explaining the purpose of the rule, a statement was made by the court which may be helpful in the disposition of our case since it shed some light on the intended meaning of the rule. It was written that “although the award for delay of time may be ‘in the nature of interest’, in reality, it is merely an extension of the compensatory damages necessary to make the plaintiff whole.” [Emphasis added]. If the damages for delay are considered to be an extension of the compensatory damages, it only follows that they are to be computed according to the amount of compensatory damages awarded, and not according to the entire sum which includes punitive damages.

Order reversed and case remanded with a procedendo in accordance with this opinion. Jurisdiction retained.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I dissent. The facts of this case showed a callous disregard for public safety on the part of Conrail and fully justified the jury’s award of substantial punitive damages.

Following the verdict, the lower court molded the verdict by adding damages for delay under Pa.R.C.P. No. 238 at the rate of 10% per annum from October 16, 1979 to April 29, 1981. The court rejected Conrail’s argument that Rule 238 did not authorize the computation of delay damages on the punitive damages and judgment was entered in favor of Pauline Colodonato in the amount of $865,208.29 (including $115,208.29 of delay damages) and in favor of James Colodonato in the amount of $28,840.22 (including $3,840.22 of delay damages). Conrail has appealed from the judgment in favor of Pauline Colodonato insofar as it includes damages for delay computed on the punitive damages—a sum of $76,805.53 is thus in dispute.

When a rule, statute or other promulgation must be interpreted the first step is to examine the language of the rule. Rule 238 provides in part:

“Award of Damages for Delay in an Action for Bodily Injury, Death or Property Damage.
(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court . .. shall
(1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
(e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.

It is the position of the majority that the words “add to the amount of compensatory damages” mean that damages for delay shall be computed on the compensatory damages only and not on punitive damages.

It is immediately obvious, however, that the Rule does not say “computed on”; rather, the Supreme Court chose the words “add to”. It would have been quite simple for the court to have directed that delay damages shall be “computed on the amount of the compensatory damages”. It did not; and the fundamental precepts of statutory construction as well as the specific guidelines set out by the Supreme Court for the construction of its rules in Pa.R.C.P. No. 127 require that we give effect to all the provisions of the rule—here specifically the words “add to the amount of compensatory damages.”

In addition, in structuring Rule 238, the Supreme Court included a section in which it specified those circumstances in which the rule was not to apply. Section (g) provides:

(g) This rule shall not apply to
(1) eminent domain proceedings;
(2) pending actions in which damages for delay are allowable in the absence of this rule.

The court could have included punitive damages in section (g). It did not; and I believe the omission indicates that the court did not intend to exclude punitive damages from the application of the rule.

The plain meaning of the language of the Rule is that the amount of delay damages should be computed upon the entire award including any punitive damages awarded. The amount thus computed should be added to the compensatory damages and judgment entered accordingly. This is a perfectly sensible approach since damages for delay, even for delay in paying punitive damages, are compensatory in nature and not designed to act as a penalty.

The paramount precept in the construction of the Supreme Court Rules is stated to be:

The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court.

The Supreme Court is more explicit when it directs that the following matters be considered in ascertaining the intention of the Court:

(1) the occasion and necessity for the rule;
(2) the circumstances under which it was promulgated;
(3) the mischief to be remedied;
(4) the object to be attained.

Fortunately the Supreme Court itself has informed us on all of these points when it discussed the occasion for the promulgation of Rule 238, the mischief to be remedied and the object to be attained in the course of its opinion in Laudenberger v. Port Authority of Allegheny County, et al., 496 Pa. 52, 58, 59, 436 A.2d 147, 150, 151 (1981). There the court said:

In September, 1978, the Civil Procedural Rules Committee proposed Rule 238 to this Court for its review and promulgation. In the accompanying explanatory comments, the Committee stated:
The judicial system has long been vexed by the problem of congestion and delay in the disposition of civil actions for bodily injury, death or property damages pending in the trial courts. Various techniques, such as compulsory arbitration, have helped to dispose promptly of the bulk of such cases in amounts under $10,000 in Philadelphia and Allegheny Counties and under $5,000 in other counties which have adopted compulsory arbitration. Nevertheless, there is still a considerable residue of so-called major cases not presently subject to arbitration.
There are also the appeals from arbitration which require further proceedings in the trial court.
Statistics show that... [t]hirty-eight percent are settled without going to trial. Some are settled through pre-trial conciliation techniques, but in too many cases meaningful negotiations commence only after a trial date is fixed or on the courthouse steps or in the courtroom, thus leading to delay in the disposition of cases and congestion in the courts. The present practice provides no incentive for early settlement.
In the usual civil action for bodily injury, death or property damage, there is no compensation to the successful plaintiff and no sanction against the defendant for the long delay between commencement of the action and the trial.
8 Pa. Bulletin 2668 (1978). These explanatory notes have not been officially adopted or promulgated by this Court, nor do they constitute part of the rule. However, they indicate the spirit and motivation behind the drafting of the rule, and they serve as guidelines for understanding the purpose for which the rule was drafted.

Articulating that purpose the Supreme Court went on to state:

Undeniably, this rule serves to compensate the plaintiff for the inability to utilize funds rightfully due him, but the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.

496 Pa. at 59, 436 A.2d at 151.

We are thus furnished with a clear identification of the problem which the Supreme Court sought to eradicate by the promulgation of Rule 238, viz., court congestion caused by the failure to dispose of cases seeking monetary relief for bodily injury, death or property damage or any combination thereof. In the ordinary scheme of things some cases seeking such relief will include a claim for punitive damages in addition to compensatory damages—as this case does—and some cases will seek only compensatory damages. Even the briefest reflection on the mechanics of the rule will reveal that if delay damages are to be imposed on the compensatory portion of a verdict only, as the majority holds, the Supreme Court’s purpose in promulgating the rule will be thwarted in all cases where punitive damages are sought. This is so because cases cannot be settled in sections; plaintiffs cannot be expected to accept an offer to settle the compensatory section of a case (even though in a given case a plaintiff might regard the offer to be reasonable as to compensatory damages) and then try the punitive section. Moreover, if the calculation of delay damages on the punitive portion of verdicts is eliminated, then the motivation of defendants to make early settlements in punitive damage cases is eliminated. I view this as an unnecessary dilution of the impact of Rule 238, and at the same time anomalous providing, as it would, better treatment for those whose conduct is outrageous as compared to those whose conduct is merely negligent.

Nor has appellant advanced any reason which persuades me that an entire category of cases should be removed from the application of Rule 238. Appellant points to four considerations which it cites as supportive of its interpretation of the intent of the Supreme Court.

First, appellant points out that the purpose of punitive damages is not to make the plaintiff whole (but rather to punish and deter). However that may be, we are here concerned not with the purpose of punitive damages but with the purpose of delay damages and the purpose of delay damages is to make the plaintiff whole. This purpose can only be accomplished by computing the delay damages on the entire sum withheld from the plaintiff by the defendant.

Second, appellant asserts that very few cases include claims for punitive damages and therefore if the rule accomplishes no improvement in the settlement prospects of these cases not much will have been lost. We are privy to no statistics on this point; however, even if the number of punitive damage cases is proportionately small, it may be that in an absolute sense the number of punitive damage cases is not insubstantial.

Third, appellant asserts that the “majority of backlog cases” involve insured defendants and contends that there is a public policy in Pennsylvania which prohibits one’s obtaining indemnification by way of insurance for punitive damages. Thus, it is argued, the intent of the rule is largely frustrated in punitive damage cases anyway. I find no support for the supposition that the Supreme Court reserved to insurance companies the motivation for early settlement of cases it sought to impart by the enactment of Rule 238. As a matter of fact, the Supreme Court dealt with this very argument which was pressed by the defendants in the Laudenberger case. There the defendants complained that “Rule 238 also stings uninsured defendants who are without the use of reserve funds for investment.” The Supreme Court responded:

As evidenced by appellees’ own language, they misstate the aim of the rule by concentrating their attention on one by-product of the rule. It is true that Rule 238 does disgorge profits on funds placed in reserve by insurance companies for up-coming trials. However, while some defendants may in fact be uninsured, they have nonetheless caused the loss to the plaintiffs by their tortious conduct and owe compensation to their victims. Uniformly, the plaintiffs are the parties prejudiced by the long litigation process; whether the defendants are insured or uninsured does not lessen their loss.

496 Pa. at 71, 436 A.2d at 157.

Fourth, appellant contends that the Supreme Court meant to exclude punitive damage cases from those it sought to get off the trial lists and out of the judicial system by encouraging settlements because they are difficult to evaluate—at least more difficult than non-punitive cases. I reject this generalization out of hand. There are limitless gradations of difficulty in the evaluation of cases for settlement— whether they involve punitive damages or not. Punitive damage cases may be one type of case which is difficult to evaluate; cases involving multiple defendants can be another; cases involving serious liability questions can be another; cases involving the death of a child another. In those cases the defendants may have to make a special effort to evaluate the case—presumably they will if they know they will be paying delay damages if they don’t; contrariwise, if the defendant in any of those types of cases knows it will not be paying delay damage—that it can keep the money and invest it—there is no motivation for it to make any effort, let alone a special effort, to evaluate the case so that an offer of settlement may be made.

Having determined that the primary purpose of the rule— alleviation of congestion in the courts—can best be achieved by not excluding punitive damage cases from its application and having found no countervailing disadvantage I now examine the second purpose of the rule which is to provide compensation to the plaintiff. Obviously, this purpose of the rule will be better served if the plaintiff is fully compensated rather than partially compensated. Punitive damages are no less real money than compensatory damages and the interest earned on punitive damages is no less of a benefit to the defendant than the interest earned on compensatory damages and the plaintiff is no less deprived of the use of one than of the other.

Viewed in this context the Supreme Court’s direction that the court “add to the amount of compensatory damages ... damages for delay” is thoroughly understandable: it directs that the delay damages be added to the compensatory damages because that is what the delay damages are—compensation. They are to compensate the plaintiff who has been denied the use of the punitive damages as well as the compensatory damages.

The reliance by the majority on the language of the Supreme Court in Laudenberger, supra, that damages for delay are “an extension of the compensatory damages necessary to make the plaintiff whole” misconstrues the point the Supreme Court is making, i.e., that delay damages are no different from any other damages designed to make' a plaintiff whole “for an injury done or wrong sustained” which in this case is the “secondary derivative wrong perpetrated by the defendant in delaying settlement.” Laudenberger, supra. Both the Pennsylvania and New Jersey Courts have viewed the withholding of damages as a separate, “secondary, derivative” or “second” wrong.

The delay in the payment of the punitive damages which are “inextricably entwined” with the compensatory damages was just as long and just as wrong as the delay in the payment of the compensatory damages and if the plaintiff is to be compensated as the Supreme Court says he is this is not accomplished by limiting the delay damages to any less than that which was withheld. The Supreme Court has said:

The defendants, on the other hand, have suffered no wrong. They, as the tortfeasors, are not unjustly deprived of compensation during the course of pretrial delays.

I would hold that the court below properly added to the compensatory damages delay damages which it computed on both the compensatory and punitive portions of the verdict and accordingly would affirm its order.

      . At no time prior to trial had defendant made any offer to settle this case. See Motion to Mold Verdict and Defendant’s Answer at R 2a and 3a. See Pa.R.C.P. 238(e) and (f).

      . Pa.R.C.P. No. 127.

      . Pa.R.C.P. No. 127(a).

      . Pa.R.C.P. No. 127(c).

      . As the lower court observed in the course of its opinion:
      “We feel that the Rule is particularly applicable to a case such as the present one. From the time this matter was certified as ready for trial through the pre-trial conference and settlement discussion and negotiations, all parties in interest were aware that punitive damages were an integral part of the case. Because of the serious circumstances involved in the case, the defendants knew full well their exposure in facing a jury empowered with awarding compensatory and punitive damages. In fact, it is fair to say that punitive and compensatory damages were inextricably entwined in this case.”

      . “Although the award for delay of time may be ‘in the nature of interest’, in reality it is merely an extension of the compensatory damages necessary to make a plaintiff whole.” Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 66, 436 A.2d 147, 154 (1981).

      . “In the usual civil action for bodily injury, death or property damage, there is no compensation to the successful plaintiff and no sanction against the defendant for the long delay between commencement of the action and the trial.” Explanatory Notes of Pa.Civil Procedural Rules Committee, Pa. Bulletin 2668 (1978). In Laudenberger v. Port Authority of Allegheny County, et al., supra, 496 Pa. at 59, 436 A.2d at 151. The Supreme Court of Pennsylvania referred to Rule 238 as follows: “Undeniably this rule serves to compensate the plaintiff for the inability to utilize funds rightfully due him...”

      . Laudenberger, supra.

      . Busik v. Levine, 63 N.J. 351, 307 A.2d 571 (1973), appeal dismissed, 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973).

      . Laudenberger v. Port Authority of Allegheny County, et al., supra.

      . Laudenberger v. Port Authority of Allegheny County, et al., supra.

      . Laudenberger v. Port Authority of Allegheny County, et al., 496 Pa. at 69, 436 A.2d at 156.


author: CERCONE, President Judge:

text:
    453 A.2d 993
    COMMONWEALTH of Pennsylvania v. HOANG KHAI TRAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1981.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Denied May 18, 1983.

      Taylor P. Andrews, Public Defender, Carlisle, for appellant.
    J. Michael Eakin, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

This is a direct appeal from judgment of sentence. We now reverse and remand for new trial.

In the early morning hours of April 12, 1980 appellant Tran drove from his home in New Cumberland to the home of Cheng Chang in Lemoyne, Cumberland County. He was let into the house by Chang and the two had words about a woman whom Chang was then dating and whom Tran had once dated for nearly a year. The dispute moved from the first floor of Chang’s house to his second floor bedroom. The argument grew heated. Aroused by the noise, Chang’s sister and mother entered the room and turned on the light. They saw appellant stab Chang more than once. The sister ran to the telephone and called the police. Chang asked appellant for the knife and appellant handed it to him. He then fled the house. The police later found him sleeping in his car and arrested him for the assault on Chang. Twenty-three days later Chang died from complications arising from the multiple stab wounds and Tran was rearrested and charged with murder. The burglary and assault charges were dropped.

At trial appellant testified that on the evening just prior to the stabbing he consumed five or six beers, two “screwdrivers” (vodka and orange juice), and then smoked hashish. He then telephoned Eileen Hall and asked if he could see her the following day. She denied him the interview. Ms. Hall testified that he sounded excited and that his voice was unusually high. She characterized the call as “silly.” Following this conversation, which was made from appellant’s home, appellant took a knife and drove from New Cumberland to Lemoyne. Tran claimed at trial that he took the knife because he feared a confrontation with Chang about Ms. Hall. The confrontation did in fact occur, although the only witnesses to its inception were Tran and Chang. Tran claimed that he acted in self-defense when he first stabbed Chang. He testified that the two quarrelled over a picture of Ms. Hall and that Chang struck him with a flashlight. He testified that he had no intention of killing Chang. The police officers testified that when they arrested Tran they detected no signs of intoxication. They did not smell alcohol on his breath nor did they detect that he had trouble standing or walking even after his hands were secured behind his back.

In addition to asserting both self-defense and intoxication, appellant offered evidence of his good character by way of testimony concerning his reputation for peacefulness. He submitted a point for charge to the jury on the question of reputation testimony. The court agreed to read the submitted charge to the jury but later neglected to do so. Appellant’s counsel failed to object to the court’s omission and the case was sent out with the jury. They returned with a verdict of guilty of murder of the first degree. Appellant, represented by the same counsel as at trial, then filed a motion in arrest of judgment and a motion for new trial. The motion for new trial raised, inter alia, counsel’s ineffectiveness for his failure to object to the court’s omission of the jury instruction on reputation evidence. The court denied both motions and subsequently sentenced appellant to life imprisonment. Still represented by trial counsel, appellant brought this timely appeal.

Appellant first assigns as error the lower court’s refusal to grant the motion in arrest of judgment thereby raising the question of the evidence’s sufficiency to sustain the verdict of guilty of murder in the first degree. In deciding sufficiency claims on appeal, we read the evidence in the light most favorable to the Commonwealth as verdict winner, giving it also the benefit of all inferences which can be reasonably drawn from the evidence. We then weigh the evidence and inferences against the elements of the crime to determine whether the Commonwealth has met its burden of proving each element thereof beyond a reasonable doubt. See Commonwealth v. Fisher, 491 Pa. 231, 420 A.2d 427 (1980). When self-defense is raised as a defense to a homicide charge the Commonwealth bears the additional burden of proving beyond a reasonable doubt either:

(1) that the defendant did not reasonably believe it was immediately necessary to kill in order to protect himself against death or serious bodily harm, or that the defendant used more force than was necessary or reasonably appeared to him to be necessary to save himself from death, great bodily harm or the commission of a felony, (2) that the defendant provoked the use of force, or (3) that the defendant had a duty to retreat and that retreat was possible with complete safety.

See 18 Pa.C.S. § 505(b)(2). And see Commonwealth v. Fisher, supra; Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90 (1977). A defense claim of intoxication which seeks to negate the element of specific intent required to sustain convictions for first degree murder places no additional burden (either of proof or persuasion) on the Commonwealth, since those burdens rest with it from the outset. Evidence of intoxication thus tends to question the sufficiency of the Commonwealth’s evidence of specific intent in such cases, but does not obligate the Commonwealth to prove additional elements as in the case when self-defense is raised. See Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974). See 18 Pa.C.S. § 308.

Clearly the evidence was sufficient to sustain the verdict. Appellant has not denied that he stabbed his victim, indeed, by raising his self-defense claim he has admitted doing so. Moreover, it is certain that Chang died as a result of his wounds, albeit nearly a month after the assault. The jury could reasonably have inferred appellant’s premeditation of the crime when he took the knife from his house as he left to confront his victim and the necessary malice may have been inferred from the use of the deadly weapon itself. The jury was not required to accept appellant’s claim of intoxication but could reasonably have believed the arresting officers when they testified that they detected no traces of alcohol on appellant. As for the claim of self-defense, the jury could reasonably have concluded, even if it believed appellant when he testified that Chang struck him with a flashlight, that appellant used excessive force, or that he provoked the use of force or that retreat from the victim’s bedroom and house was possible. The court did not err in refusing to grant the motion in arrest of judgment and appellant is not entitled to a discharge.

Appellant’s second assignment of error raises the spectre of his counsel’s ineffectiveness. The question is presented to us in an unusual although not altogether untoward procedural posture in that appellant is now represented by the same counsel as at trial and post-trial. Counsel may raise his own ineffectiveness, and will be permitted to argue the same on appeal, if he has preserved the issue by raising it at the first available time (in post-trial motions when the allegation is one of ineffectiveness at trial), and if the ineffectiveness is apparent on the face of the record. See Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980); Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978); Commonwealth v. McNeal, 261 Pa.Superior Ct. 332, 396 A.2d 424 (1978); Commonwealth v. Matt, 249 Pa.Superior Ct. 98, 375 A.2d 777 (1977).

Instantly, the claim foregone was an objection to the court’s jury instructions. In appellant’s case in chief, Eileen Hall, the woman about whom appellant and his victim fought, testified as follows:

Q. [Defense Counsel] Did you know other people then that knew [Tran]?
A. [Hall] Yes.
Q. Do you know what his reputation was amongst those other people for being either a violent or peaceful person?
A. He wasn’t a violent person at all. He was—He was—
Q. How was he regarded by his friends?
A. He was the one who was willing to do anything, you know. He was the one who was sent to the store, you know, friendly.
Q. Aside from going to the store and possibly accomodating somebody, how was he regarded with regard to violence or peacefulness?
A. I have never seen him—never seen him raise his voice. I have seen other people raise their voice in the same room with him, and he would just—he would never take sides, just stay out of it. He would never get involved in anything like fighting or anything.

At the close of the evidence appellant submitted a written point for charge to the jury concerning reputation testimony. The court accepted the proposed instruction without objection from the Commonwealth. However, when the court charged the jury it omitted not only appellant’s proposed instruction but any reference to reputation testimony whatsoever. This omission went unchallenged by appellant’s counsel. Appellant now contends that this failure to object to the omission of the charge on reputation testimony constituted ineffective assistance of counsel. It is further contended that the lower court’s denial of appellant’s post-trial motion raising this ineffectiveness claim is reversible error apparent on the face of the record and, therefore, does not require a remand for the appointment of different counsel or for an evidentiary hearing.

In reviewing claims of ineffective assistance of counsel we are guided by the time honored case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where the Supreme Court stated:

Counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.

Id., 427 Pa. at 604, 235 A.2d at 352. The Supreme Court elaborated the Maroney standard in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). The Supreme Court stated there:

In Maroney we noted that “a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. Because counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion. See e.g., Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Harrison, 228 Pa.Superior Ct. 42, 323 A.2d 848 (1974); cf. Commonwealth v. Goosby, 461 Pa. 229, 336 A.2d 260 (1975); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for ... counsel’s decision not to pursue the matter. Thus the starting point of our inquiry is whether there were reasonable grounds upon which to advance the . .. claims which were not advanced. . . .

Id., 427 at 277-278, 372 A.2d at 695. Initially, we must consider whether there is any arguable merit to appellant’s assertions, for it is axiomatic that counsel will not be deemed ineffective for failure to assert a baseless claim. See Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977); Commonwealth v. Payton, 253 Pa.Superior Ct. 422, 385 A.2d 410 (1978); Commonwealth v. Hawkins, 240 Pa.Superior Ct. 56, 362 A.2d 374 (1976). If we find that the contention is of arguable merit then we must proceed to determine whether the course of action followed by counsel had some reasonable basis designed to effectuate his client’s interests. See Commonwealth ex rel. Washington v. Maroney, supra.

It would appear well-settled that reputation evidence offered to prove a defendant’s good character is substantive, positive, and material to the question of his guilt or innocence. As the Supreme Court stated in Commonwealth v. Beingo, 217 Pa. 60, 66 A. 153 (1907):

All that the prisoner is entitled to, even on trial for murder, is that the jury shall be accurately instructed as to the law applicable to every material phase of the case which the jury may under the evidence be authorized to consider. The substance of the law as to good character is that it is not a mere make-weight, but positive and substantive in itself and entitled as such to go to the jury as a fact in the prisoner’s favor. If the jury is so instructed the duty of the judge is correctly performed. .. .

Id., 217 Pa. at 64, 66 A. at 154. See also Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978); Commonwealth v. Stoner, 265 Pa. 139, 108 A. 624 (1919); Commonwealth v. Cleary, 135 Pa. 64, 19 A. 1017 (1890); Heine v. Commonwealth, 91 Pa. 145 (1879); Kilpatrick v. Commonwealth, 31 Pa. 198 (1858). Cf. Edgington v. United States, 164 U.S. 361, 366, 17 S.Ct. 72, 73, 41 L.Ed. 467 (1896); United States v. Quick, 128 F.2d 832, 835 (3d Cir.1942.)

In agreeing to give the proposed jury instruction concerning the effect of reputation evidence the trial court ruled that Ms. Hall’s testimony constituted proper evidence of appellant’s reputation for good character. Despite the trial court’s later conclusion at the post-verdict motion stage to the contrary, we believe that this was proper reputation testimony, and that the charge should have been read to the jury. As was said in Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1976): “reputation evidence is established by testimony of the community opinion of the individual in question, not through specific acts or mere rumor. See generally, V Wigmore on Evidence, §§ 1609, 1611-1612 at 580, 583-584 (Chadbourn Ed. 1974).” Id., 467 Pa. at 180, 354 A.2d at 904. (Emphasis in the original). Ms. Hall’s testimony was not in the nature of rumor since she admitted to being well acquainted with appellant. Nor did her testimony relate to specific incidents; it was clearly general testimony. The trial court concluded on post-verdict motions that the testimony concerned Ms. Hall’s personal opinion of appellant and not his reputation in the community. A fair reading of the testimony, however, reveals the contrary to be true; that is, Ms. Hall testified about appellant’s reputation and not about her personal opinion of him. Admittedly some of her responses to some of these questions are worded in the first person, e.g., “I have never seen him. ... ” Other responses clearly point to evidence of his reputation however: e.g., “He was the one who was sent to the store, you know, friendly.” Moreover, all of the questions put to Ms. Hall were phrased in terms of reputation; they did not solicit her personal opinion of appellant, but rather, her knowledge of how he was viewed among his friends and acquaintances. Thus, we conclude that the trial court was correct when it initially ruled to accept the submitted point for charge on reputation evidence.

We turn now to the ineffectiveness claim itself. Instantly, the course of action foregone was an objection to the court’s omission of a jury charge on reputation testimony. Had the court initially rejected the proposed charge and had appellant properly preserved the issue for appeal we would rule that the court erred in refusing the charge and grant appellant a new trial. It is thus our opinion that the action foregone was not only of arguable merit but meritorious, and not meritless as the lower court concluded at the post-verdict motion stage.

We believe this to be a clear example of ineffective assistance of counsel. Not only was a charge on reputation evidence appropriate in this case, but counsel submitted such a charge to the court and it was accepted. We can conceive of no reason not to object to the omission of a point for charge where the point has been submitted to the court by defense counsel, where the court has already ruled it appropriate, and indeed where such a point for charge is required, as it was here. Moreover, we need not remand the case for an evidentiary hearing to decide that claim because we find that the ineffectiveness of counsel is apparent on the face of the record. Thus, to our minds, counsel was clearly ineffective and the lower court erred when it denied appellant’s motion for new trial. Accordingly, the judgment of sentence must be reversed and the case remanded for a new trial.

Reversed and remanded for new trial.

       Generally, failure to object to the rejection of a proposed charge after the completion of the court’s instruction to the jury waives any error for purposes of appeal. See Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980); Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977) (Plurality).


text:
    453 A.2d 998
    Wilma M. KRENZELAK, Appellant, v. Chester KRENZELAK and Stanley Krenzelak.
    Superior Court of Pennsylvania.
    Argued April 28, 1982.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Granted Feb. 10, 1983.

      Robert Ceisler, Washington, for appellant.
    W. Bryan Pizzi, II, Washington, for appellees.
    Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.
   CERCONE, President Judge:

Wilma M. Krenzelak appeals the order of the lower court sustaining appellees’ preliminary objections to her complaint in equity. The issue for our determination is the applicability of the new Divorce Code of Pennsylvania, (hereinafter referred to as “the Code”) to a conveyance for no monetary consideration by appellee Chester Krenzelak to his son by a previous marriage, appellee Stanley Krenzelak on March 25, 1980. This property is a seventy-four acre tract located in Morris Township, Washington County, and was purchased by Chester on January 29, 1968, during his marriage to Wilma. At all times the property was in Chester’s name only.

Appellee-husband filed an action in divorce against appellant-wife in April 1978, and she filed against him in April, 1979. The transfer of property from father to son, which is the subject of this appeal, occurred on March 25, 1980. Thereafter, the Code went into effect on July 1, 1980. Under Section 108 of the Code, appellant petitioned the Court in January 1981 to have her existing divorce action governed by the provisions of the new Code. The petition was unopposed, and permission was granted to proceed under the Code. Appellant then amended her original complaint in divorce to ask for equitable distribution and other appropriate relief. In March of 1981, a suit in Equity was filed to set aside the conveyance of the property from the appellee-husband to appellee-son. The complaint alleged that the property transfer was made solely to deprive appellant of her right to distribution of marital property. Appellees filed Preliminary Objections to the Complaint in the form of a demurrer arguing that appellant failed to state a cause of action upon which relief may be granted because at all time the property was owned only by appellee-husband, individually. The lower court sustained the Preliminary Objections. It reasoned that the new Divorce Code could not be applied retroactively and thereby refused to characterize the property as “marital property”. The court’s characterization rendered this property not subject to equitable distribution upon termination of the marriage. Because we feel the instant situation is controlled by the recent case Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982), we reverse and remand for proceedings consistent with this opinion.

The Bacchetta case confronted our Supreme Court with the issue of whether the new Divorce Code subjected property acquired during the marriage of the parties, but before the effective date of the Code, to be classified as marital property for purposes of equitable distribution upon termination of the marriage. The Court, in a 4-3 decision, opinion by Justice Roberts, found direction from the Legislature that all property acquired during the marriage of the parties shall be subject to the equitable distribution provision of the Divorce Code. The Court further concluded that this application was constitutionally permissible.

Section 103 of the Code states that all provisions of the Code shall apply to those actions governed by the Code. It provides:

The provisions of this act shall apply to all cases, whether the causes for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon application granted, under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act.
23 P.S. § 103.

As appellant in this case made application to proceed under the Code, to which appellee-husband made no opposition, all provisions of the Code must apply to this case.

Initially, Section 401(c) grants full equity power and jurisdiction in all matrimonial cases to the court of Common Pleas, including the power to grant relief against any third party over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause. Section 401(e) defines marital property subject to equitable distribution as “all property acquired by either party during the marriage.” Excluded from this definition is property which “a party has sold ... in good faith and for value prior to the time proceedings for the divorce are commenced.” Section 401(e)(5). However, the property in this case was conveyed on March 25, 1980, for no monetary consideration, almost two years after the grantor filed for divorce and eleven months after appellant filed her divorce action. Thus, the property falls within the definition of marital property. Additionally, Section 403(d) authorizes a nullification of any disposition of property by a party to a third person, which person had notice of the pending divorce or who paid “wholly inadequate consideration” for the property. Appellant sought to have the instant conveyance set aside pursuant to this provision.

While this case proceeds a step forward from Bacchetta in that it involves a third party who now purports to own the property, this Court perceives no reason to withhold retroactive application of a provision in the Divorce Code from this situation which may involve the divesting of property rights of appellee-son. It must be noted that prior to the enactment of the Divorce Code, when property distribution was governed by principles of the common law, a conveyance from one spouse to a third person could be set aside if that spouse could be shown to have disposed of the property with an intent to defraud the other spouse of his or her rights. See In re Montague's Estate, 403 Pa. 558, 170 A.2d 103 (1961); Barnhart v. Grantham, 197 Pa. 502, 47 A. 866 (1901). Therefore, retroactive application of Section 403(d) cannot be regarded as intolerably burdensome to the parties in this case, since the transaction between father and son would be subject to court scrutiny even if the Divorce Code were not applicable. Further, it would be anomalous to apply one section of the Code retroactively, while refusing the same application to another section. To do so would thwart the stated purpose of the Divorce Code, to “effectuate economic justice between parties who are divorced or separated and .. . [to] insure a fair and just determination and settlement of their property rights.” Section 102(a)(6). In view of this stated purpose, it must be concluded that the legislative proscription against property transfers during divorce proceedings for inadequate consideration includes transfers occurring prior to July 1, 1980, the effective date of the statute, if the parties are proceeding under the dictates of the Divorce Code.

The lower court sustained appellees’ Preliminary Objections because it found a retroactive application of the Divorce Code to the within transfer would be unconstitutional. To avoid such a result, the lower court construed the code to apply to the parties’ financial and proprietary situation as it existed on the day when appellant was granted permission to proceed under the Code, that is, in January of 1981. Following Bacchetta, we find that the parties’ situation must be considered as it existed during the marriage up to the date of the first divorce filing, that is, at a time when appellee-husband still owned the property. We find further that such a retroactive application is constitutional as a proper exercise of the Legislature’s police power in providing for the distribution of property upon divorce. In Bachetta, the court noted that police power

“ ‘is one of the most essential powers of government. . ..’
Hadacheck v. Sebastian, 239 U.S. 394, 410, 36 S.Ct. 143, 145, 60 L.Ed. 348 (1915). The police power is fundamental because it enables ‘civil society’ to respond in an appropriate and effective fashion to changing political, economic, and social circumstances, and thus to maintain its vitality and order.” See e.g., Mugler v. Kansas, 123 U.S. 623, 668, 8 S.Ct. 273, 301, 31 L.Ed. 205 (1887).” Bacchetta, supra, 498 Pa. at 233, 445 A.2d at 1197, quoting from National Wood Preservers, Inc. v. Commonwealth of Pa., Dept. of Environmental Resources, 489 Pa. 221, 231, 414 A.2d 37, 42 (1980).

Due process requires that an exercise of police power be reasonable and that it have a real and substantial relation to the objective sought to be obtained. The Bacchetta court found that the means selected by the Legislature to mitigate economic harms upon divorce unquestionably withstand constitutional scrutiny. It cited the Code’s factors for a Court to consider in exercising its discretion regarding equitable distribution. The Court also set forth the requirement that the lower court explain and support its decisions on the record.

Referring to the marital property provision as effective and carefully tailored, the court applied it to property acquired before the Code’s effective date. We are now constrained to apply the provisions of the Code which underlie the instant proceeding, that is Sections 401(c), 401(e), and 403(d) to the property conveyed by appellee-husband to appellee-son. Therefore, we reverse and remand to the trial court for proceedings consistent with this opinion.

Order reversed and record remanded. Jurisdiction is relinquished.

      . Act of April 2, 1980, P.L. 63, § 101 et seq., 23 P.S. § 101 et seq. (Supp.1982-83) (effective July 1, 1980).

      . Cf. Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981) (order granting application to proceed under the Divorce Code not immediately appealable) and Gordon v. Gordon, 293 Pa.Superior Ct. 491, 439 A.2d 683 (1981) (order denying application to proceed under Divorce Code immediately appealable).

      . Of course, disposition of this case on the merits remains in the first instance with the trial court. We hold only that the Divorce Code is applicable to the instant situation.

      . This pre-Code remedy is discussed to counter appellees’ contention that “a pre-Code transfer in this manner was legitimate and would be subject to no challenge by appellant whatsoever.” Thus, appellees’ reliance on the validity of their transaction in a pre-Code light may be misplaced.

      . In this case a divorce action had been pending since the filing of the husband’s action in April of 1978. An application to proceed under the Code determines the outcome of any “action pending” once it is granted. 23 P.S. § 103.