text:
    509 A.2d 1310
    Marie TACKETT, Appellant, v. Ted K. ENCKE, Richard F. Collins, Jr., Donald F. O’Malley, Steel Valley Orthopedic Association, Jefferson Center Hospital, and Jefferson Health Services, also known as South Hills Health System.
    Superior Court of Pennsylvania.
    Argued March 18, 1986.
    Filed June 3, 1986.

      Michael I. Markowitz, Pittsburgh, for appellant.
    James A. Wood, Pittsburgh, for Encke, appellees.
    George M. Weis, Pittsburgh, for Jefferson, appellees.
    Before BROSKY, ROWLEY and HESTER, JJ.
   BROSKY, Judge:

This appeal is from an order dismissing appellant’s complaint for negligent infliction of emotional distress. Appellant argues that the trial court erred in sustaining preliminary objections in the nature of a demurrer and dismissing the complaint for failure to state a cause of action. We find no merit to this contention and, accordingly, affirm.

Facts

Appellant's son was injured in a motorcycle accident on November 30, 1982. He was admitted to and given treatment at Jefferson Center Hospital. Appellant visited him on a daily basis. Due to an alleged failure of the appellees to diagnose a pulmonary fat embolism, appellant’s son exhibited an elevation in temperature, increased pulse rate, shortness of breath, cyanosis and lethargy. Upon discovery of these symptoms, appellant’s son was transferred to the intensive care unit and was placed on an artificial breathing machine. He remained in intensive care until December 9, 1982, during which period he suffered a comatose episode and hemoptysis requiring a bronchoscopy. He was discharged from the hospital on December 29, 1982.

On December 12, 1984, the instant complaint was filed. In that complaint appellant alleged that, due to the negligence and recklessness of appellees in failing to diagnose and treat her son, she suffered severe mental anguish and emotional distress. On January 23 and 24, 1985, preliminary objections were filed by appellees, to which appellant filed her answer on February 5, 1985. On February 12, 1985, a hearing was held and the trial court entered an order dismissing appellant’s complaint. On March 4, 1985, appellant filed notice of appeal questioning the dismissal of her complaint.

Analysis

In 1979, our Commonwealth’s Supreme Court outlined factors necessary for a bystander who was not within the zone of danger to sustain a cause of action for negligent infliction of emotional distress. Citing a leading California case, the Court said:

In the seminal Dillon case, the California Supreme Court identified three factors determinative of whether the injury to the Plaintiff was reasonably foreseeable:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
Dillon v. Legg [68 Cal.2d 728], 69 Cal.Rptr. [72] at 80, 441 P.2d [912] at 920 [1968],

Sinn v. Burd, 486 Pa. 146, 170, 404 A.2d 672, 685 (1979). We find that appellant’s complaint for negligent infliction of emotional distress does not meet the second requirement of Sinn v. Burd.

The essence of appellant’s case is that she was injured emotionally as a result of witnessing, over time, her son’s reaction to a negligently undetected pulmonary fat embolism.

In a similar case, a wife sued asbestos suppliers for emotional distress brought on by witnessing her husband being progressively overcome by asbestosis. This Court said:

The developing case law clearly indicates that a cause of action will not lie for emotional distress negligently caused to a bystander, unless the bystander personally observes an identifiable traumatic incident. The lower court’s dismissal of Thelma Cathcart’s claim for negligently-caused emotional distress sustained at witnessing her husband’s developing disease is affirmed.

Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 150, 471 A.2d 493, 507 (1984).

In another case, this Court quoted with approval a Federal District Court case and its dismissal of an action for emotional distress arising out of similar circumstances. “Clearly the Supreme Court of Pennsylvania contemplated a discrete and identifiable traumatic event to trigger recovery.” Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 44, 482 A.2d 1067, 1071 (1984) citing Amader v. Johns-Manville Corp., 514 F.Supp. 1031 (E.D.Pa.1981).

Instantly, since appellant has not alleged that she witnessed a “discrete and identifiable traumatic event,” we must affirm the order of the trial court.

Order affirmed.

ROWLEY, J., concurs in the result.

      . In contrast to the tort of intentional infliction of emotional harm, bodily harm to the plaintiff is also necessary to establish the tort of negligent infliction of emotional harm. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493, 507 (1984). That element of the tort is, however, not at issue in this appeal.

      . We note further that a negligent act which is not witnessed by the plaintiff does not give rise to recovery under a cause for negligent infliction of emotional distress. Cathcart, supra. In the instant case there was a perforce non-witnessed negligent omission to act. It would be anomalous to deny recovery in the first situation and allow recovery in the second, instant, situation. While we might view with favor a rule which looked to the necessity of the plaintiff witnessing the results of the negligent act or omission, that option is not before us in light of prior case law.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    509 A.2d 1313
    COMMONWEALTH of Pennsylvania, Appellant, v. Brent Allen KIEHL, Appellee.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed June 2, 1986.
    William M. Kern, District Attorney, Clarion, for Commonwealth, appellant.
    David M. Speer, Clarion, for appellee.

      Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

         Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania is sitting by designation.

   OLSZEWSKI, Judge:

Appellee, Brent Allen Kiehl, was arrested February 19, 1983 and charged with driving under the influence of alcohol, a violation of section 3731(a)(l)(4) of the Pennsylvania Vehicle Code of 1976 as amended, 75 P.S. § 3731(a)(l)(4). Appellee filed a request for acceptance into Accelerated Rehabilitative Disposition (ARD). The district attorney summarily rejected appellee’s request, citing none of the reasons set forth in the statute for excluding the defendant from the program but merely saying he was philosophically opposed to it. Appellee filed a rule to show cause and the lower court on its own motion admitted appellee to ARD. This appeal followed.

The sole question before us is “whether in a prosecution for driving (under the influence) under the Motor Vehicle Code, 75 Pa.C.S.A. 3731, a defendant may be admitted to Accelerated Rehabilitative Disposition (ARD) over the objection of the attorney for the Commonwealth.” Commonwealth v. Lutz, 508 Pa. 297, 302, 495 A.2d 928, 930 (1985). This question was answered in the negative by our Supreme Court in Commonwealth v. Lutz. Id. In that case the Court stated:

... the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender. Compare Shade v. Commonwealth of Pennsylvania De partment of Transportation, 394 F.Supp. 1237, 1242 (M.D.Pa.1975), citing Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

Id., 508 Pa. at 310, 495 A.2d at 935.

Thus, while the district attorney has sole discretion to move for a defendant’s admission into ARD, the prosecutor may not summarily reject a person from consideration for admission. The Lutz Court noted that in all of the cases before it, “the prosecutors (had) openly specified their reasons for not submitting the cases for ARD____” Lutz, 508 Pa. at 310, 495 A.2d at 934. For these reasons we reverse the order of the court below and remand this case for a hearing to allow the district attorney to openly specify the reasons for not submitting this case for ARD.

Reversed and remanded. Jurisdiction relinquished.

      . Case assigned to Judge Peter Paul Olszewski for opinion writing on May 20, 1986.


author: HESTER, Judge:

text:
    509 A.2d 1314
    COMMONWEALTH of Pennsylvania v. Joseph McMANUS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 29, 1985.
    Filed June 2, 1986.

      Gary B. Zimmerman, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   HESTER, Judge:

This is an appeal from judgment of sentence entered in Allegheny County on October 17, 1984. Appellant, Joseph McManus, was adjudged guilty at a non-jury trial of third degree murder. Post-verdict motions were filed and denied, and he was sentenced to undergo imprisonment of not less than eight nor more than twenty years.

On October 2, 1983, the body of Ralph Novak was discovered in Arsenal Park in the Lawrenceville section of Pittsburgh. A pathologist determined that Novak’s death was due to severe trauma. The pathologist opined that lacerations, contusions, hemorrhaging and bone fractures of the head were caused by blows from a blunt object. Numerous contusions and abrasions were also discovered over the victim’s torso and extremities, and one of his cervical vertebrae was fractured. It was the pathologist’s opinion that either the head injuries or the fractured vertebra was sufficient to cause death.

Investigating officers discovered the victim’s naked body on cement steps connecting a wading pool with a higher level of the park. A trail of blood across the pool, line markings on his torso and the crumpling of his two shirts over his chest and head indicated that the victim had been dragged as well as beaten. Hair and blood, matching the victim’s, were discovered on the iron legs of a nearby park bench.

Appellant raises the following three arguments:

1. The trial court erred in admitting appellant’s incriminating statement to homicide detectives because he was arraigned more than six hours after arrest;

2. The trial court erred in admitting the incriminating statement because appellant, a juvenile, was not accorded the benefit of consulting an informed and interested adult upon being taken into custody; and

3. The trial court erred in admitting the incriminating statement because appellant did not voluntarily waive his rights under the fifth and sixth amendments.

In Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), our supreme court held that all statements made by the accused after arrest but before arraignment were inadmissible when arraignment was not held within six hours of arrest. The Davenport court was concerned about the frequency of suppression hearings. By setting a time restriction for the period between arrest and arraignment, the Davenport court hoped to reduce pre-trial delay, the burden on prosecution and defense resources, and violations of the accused’s rights to counsel, bail, a preliminary hearing and prompt instructions on the nature of the charges. Pa.R.Crim.P. 140.

We are not bound by Davenport, however, because appellant’s incriminating statement was uttered prior to arrest. Since the six-hour period commences at the time of arrest, its running cannot preclude the admission of statements made before arrest.

In reviewing an order denying suppression, we are bound by the factual determinations supported by the record, Commonwealth v. Wiggins, 472 Pa. 95, 371 A.2d 207 (1977), and we may not impose our own findings on the suppression court. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). We are to consider only the Commonwealth evidence and the remaining uncontradicted defense evidence. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). Although we must defer to the trial court, we are not bound by findings wholly unsupported by the record. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977).

When the time of arrest is not clear because no formal arrest is made, arrest occurs when the officers’ actions indicate their intention to detain a suspect and subject him to their will. Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976); Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980). Whether an arrest has occurred depends upon the impression conveyed to the person detained, not upon the officers’ subjective intentions. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978).

The parties agreed that appellant had been arraigned at 10:00 A.M. on October 3, 1983. It was also undisputed that appellant had not been formally arrested. The trial court concluded that the exact time of the arrest was not critical; it was only necessary to determine whether arrest had occurred after the incriminating statement. Inasmuch as Davenport excludes only statements made after arrest, the trial court held that the statement here was admissible as it occurred prior to arrest. We agree.

Detective David J. McManus, of the Allegheny County homicide division, was at home on October 2, 1983, when he received a telephone call from his son at 10:00 P.M. His son told him that appellant, who was the detective’s nephew, wanted to speak with him. His son also relayed his conversation with appellant which provided information on the Arsenal Park murder.

McManus returned appellant’s call, and appellant corroborated the information McManus had received from his son. Appellant told the detective that he had attended a bachelor party for his codefendant, Mark Michalski. According to appellant, Michalski left the party at 3:00 A.M. on October 2, 1983. He returned presently and asked appellant to accompany him to Arsenal Park. Appellant did so, and Michalski led him to what appellant thought was a dummy. Michalski kicked the dummy, and both young men dragged it around the park. Appellant then said that the dummy was heavy, and that they may have left it by the park fountain. Appellant returned to the party and then was driven home by a friend. After giving this statement, appellant agreed to ride with McManus to the Public Safety Building in Pittsburgh to repeat it for investigating officers of the city homicide division.

Appellant incriminated himself when he told investigating officers at the police station that he may have flipped a park bench on the victim’s head. His arrest immediately followed because Detective McManus informed him that he was “in trouble” and that he was not free to leave. Until arrest, however, there was substantial evidence that appellant was merely considered an eyewitness.

First, it is important to note that appellant voluntarily called McManus to offer information of the crime; there was no evidence that he was coerced to come forward. During the telephone conversation with McManus, appellant did not alter or add to the information that McManus had received from his son. Therefore, both telephone conversations were not incriminatory as appellant had described how Mihalski kicked the dummy and how they both dragged it.

After receiving his statement by telephone, McManus asked appellant to accompany him to the police station so that he could repeat the statement to investigating officers. There was no indication that McManus unduly pressured appellant into accompanying him.

Also, it is significant that McManus was appellant’s uncle. As a demonstration of his concern for his nephew, the detective called appellant’s father prior to driving appellant to the station and assured him that he would care for him. Therefore, the record indicates that McManus was acting as a relative as well as a law enforcement officer in his treatment of appellant.

Upon arrival at the police station, appellant was left unattended without handcuffs in a room having an unlocked door. When he spoke with interrogating officers, his uncle was always present to offer advice and assurance. The pre-interrogation form noted that appellant was not in custody nor under arrest; indications that appellant was considered an eyewitness only. On two more occasions, appellant assured the officers that he was not culpable. It was not until the end of the interview at 1:00 A.M. when appellant incriminated himself.

We note that the officers instructed appellant that he was not in custody. Moreover, it was apparent that appellant was free to wander throughout the station.

Finally, appellant’s own testimony at the suppression hearing indicates that he believed he was not in custody even after making the incriminating statement.

Q And do you recall what your uncle told you while you were in that room?

A Well, I asked him, I said Unc, do you think I can go home. And he said no, I don’t think so, you are in a little bit of trouble.

Q Was this before you made the statement?

A This was after I made the statement.

(Emphasis added) (N.T. March 5, 1984, p. 142). It is doubtful that appellant would have requested to go home if he believed he had been arrested for homicide.

For these reasons, we hold that appellant believed that he was not in custody until he incriminated himself. As a result, his statement was admissible without regard to the six-hour rule.

For the same reasons, we reject appellant’s argument that the statement was not admissible because he was not accorded the benefit of consulting an informed and interested adult prior to waiving his constitutional rights. The validity of a minor’s waiver is now reviewed under the totality of the circumstances. See Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). Considering appellant’s age of seventeen years, the presence of his uncle at the time he waived his rights, and the fact that he was not harshly treated, we hold that the absence of an informed and interested adult was not constitutionally infirm. Due to these same totality of the circumstances, appellant’s waiver was voluntary, knowing and intelligent.

Judgment of sentence affirmed.


author: BECK, Judge:

text:
    510 A.2d 352
    Joyce SPACK, Michael Spack, v. Panayotis APOSTOLIDIS, M.D. and the Lankenau Hospital. Appeal of Joyce SPACK. Debra Lee JACKSON, Charlie Andrew Jackson, v. Panayotis APOSTOLIDIS, M.D. and the Lankenau Hospital. Appeal of Debra Lee JACKSON.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed April 28, 1986.
    Reargument Denied June 19, 1986.
    Petition for Allowance of Appeal Denied Nov. 5, 1986.

      Gregory G. Stagliano, Media, for Spack, appellant.
    David E. Auerbach, Media, for Jackson, appellant.
    Harvey A. Sernovitz, Philadelphia, for Apostolidis, appellee.
    Ralph L. Hose, Ardmore, for Lankenau, appellee.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   BECK, Judge:

Appellants appeal the judgment on the pleadings entered in favor of appellee Dr. Apostolidis on the ground that the appellants’ suit was barred by the two-year statute of limitations. We affirm.

In reviewing an order granting a motion for judgment on the pleadings, we “accept as true the opposing party’s well-pleaded averments of fact and consider against him only those facts which he specifically admits.” Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 279, 431 A.2d 1046, 1047 (1981). In ascertaining the facts, we must examine only the pleadings and the documents properly attached thereto. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984). “No affidavits, depositions or briefs may be considered.” Id., 328 Pa.Superior Ct. at 270, 476 A.2d at 1324. Judgment on the pleadings will be upheld only “ ‘in cases which are so free from doubt that trial would clearly be a fruitless exercise.’ ” Id., 328 Pa.Superior Ct. at 270, 476 A.2d at 1324; Balush v. Borough of Norristown, 292 Pa.Super. 416, 437 A.2d 453 (1981).

Appellants Mrs. Spack and Mrs. Jackson and their husbands claim damages stemming from Dr. Apostolidis’ alleged May 20, 1977, sexual assault on Mrs. Spack and Mrs. Jackson during gynecological examinations. Nearly four years after the reputed incidents, on May 18, 1981, appellants Spack and appellants Jackson instituted actions against Dr. Apostolidis by writs of summons. Eight months later, on January 18, 1982, appellants Spack and appellants Jackson filed substantively identical six-count complaints against Dr. Apostolidis. In each complaint five counts were labelled trespass, and one count was labelled assumpsit.

Appellants concede that the five counts designated trespass in each complaint are barred by the two-year statute of limitations applicable to actions seeking recovery for personal injuries. Section 2 of the Act of June 24, 1895, P.L. 236, 12 P.S. § 34, now repealed and reenacted at 42 Pa.C.S. § 5524(2). However, appellants contend that their cause of action pled in assumpsit is not time-barred because it is governed by the six-year statute of limitations applicable to actions seeking recovery for breach of contract. Section 1 of the Act of March 27, 1713, 1 Sm.L. 76, 12 P.S. § 31, now repealed and reenacted at 42 Pa.C.S. §§ 5525 and 5527.

In Pennsylvania, the nature of the relief requested, rather than the form of the pleading, determines which statute of limitations controls a particular action. Murray v. University of Pennsylvania Hospital, 340 Pa.Super. 401, 490 A.2d 839 (1985); Sykes v. Southeastern Pennsylvania Transportation Authority, 225 Pa.Super. 69, 310 A.2d 277 (1973). As we explained in Murray,

the two year statute applicable to causes of action for personal injuries cannot be avoided by the expedient of pleading in contract.... In determining which statute will control, it is necessary to determine the nature of the damages sought to be recovered____ If ... the damages sought to be recovered are for personal injuries, the two year period of limitation is clearly applicable____ It is applicable whether the pleaded cause of action sounds in contract or in tort.

Id., 340 Pa.Superior Ct. at 405-06, 490 A.2d at 841-42; see also Prosser and Keeton on the Law of Torts § 92, at 666-67 (W. Keeton 5th ed. 1984). The rationale for utilizing the two-year statute of limitations for all actions seeking recovery for personal injuries, whether premised on a contract or a tort theory, is that

the words of the personal injuries statute of limitations are general, and there is nothing to indicate that they were not intended to establish a general rule applicable to all cases within their terms, to wit, every suit to recover damages for injury wrongfully done to the person. Thus the application of the 2-year limitation cannot be avoided by suing in assumpsit, as actions for personal injuries must be commenced within two years whether the action sounds in trespass or assumpsit. The legislature has made no attempt to discriminate between forms of action, but defines the actions it has in mind simply by their purpose — those brought to recover damages for injuries to the person. The reason for the shorter term of limitation in such suits applies equally whether the writ sounds in tort or contract; it is that the infirmities of testimony weakened by lapse of time may be as far as possible avoided, especially in cases which usually depend entirely upon oral testimony.

2 Standard Pennsylvania Practice 2d § 13:39, at 444-445 (1981) (footnotes deleted); Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841 (1983).

Thus, to ascertain whether the two-year or the six-year statute of limitations governs the case sub judice, we must consider whether the pertinent count in the appellants’ complaints asks damages for personal injuries or, instead, asks other relief. The relevant count reads as follows:

11. On or about May 20, 1977 [appellant] and [appellee] Apostolidis entered into another agreement whereby [appellee] would treat and examine and care for [appellant] in a proper manner in exchange for [appellant] paying to [appellee] a stated fee. -
15. As a result of the [appellee’s] conduct, [appellant] has suffered damages as follows:
(a) Physical pain as a result of the original assault;
(b) Emotional distress including loss of well being, anxiety, mental anguish, loss of sleep and loss of self-respect.
16. ... [Appellant] has been required to seek counseling for her mental condition and will in all likelihood, continue to require counseling for an indefinite time in the future.
17. As a result of the above, [appellant] has incurred and will continue to incur expenses for an indefinite time in the future.
18. The injuries sustained by [appellant] are permanent in nature.
19. As a result of the above, [appellant] has suffered a loss of earning capacity which shall continue for an indefinite time in the future.
21. [Appellee] Apostolidis, and through him, [appellee] Lankenau Hospital, breached their contract or agreement to treat [appellant] in accordance with the standard ordinarily required in the medical profession....

Citing Murray, appellants argue that the count in question requests contract damages and hence falls within the purview of the six-year statute of limitations. In Murray, the plaintiff contracted with her physician for a tubal ligation to achieve the specific result of rendering her sterile. When she became pregnant after the tubal ligation, the plaintiff discovered that she had not received the result for which she had contracted. Thereafter, in an action against her physician, the plaintiff sought recovery for personal injuries and “recovery for the reasonable cost of achieving the result contracted for, i.e., prevention of conception; and the cost of remedying [the doctor’s] failure to perform their contract, i.e., the cost of the therapeutic abortion” which the plaintiff was required to undergo. Id., 340 Pa.Superior Ct. at 408, 490 A.2d at 843. While the two-year statute of limitations was applied to that portion of the plaintiff’s claim seeking damages for personal injuries, the six-year statute was applied to the remainder of the plaintiff’s claim requesting damages for the “cost of completing performance of the contract or remedying defects in performance.” Id., 340 Pa.Superior Ct. at 406, 490 A.2d at 842. In other words, the two-year statute did not bar the plaintiff’s claim for “true contract damages intended to give the injured party the benefit of their [sic] bargain by awarding a sum of money that would, to the extent possible, put them [sic] in the same position as they [sic] would have been if the contract had been performed.” Id., 340 Pa.Superior Ct. at 408, 490 A.2d at 843.

Although the pertinent count in appellants’ complaints is couched in contractual terminology, we conclude that it asks relief for personal injuries and does not request true contract damages. In Moore, we defined personal injuries to encompass in

‘a narrow sense, a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property ... [and to encompass] in a much wider sense, ... any injury which is an invasion of personal rights, and in this signification it may include such injuries to the person as ... mental suffering.’

Id., 313 Pa.Superior Ct. at 270, 459 A.2d at 844 (citation omitted). The assumpsit count in appellants’ complaints essentially seeks damages for physical pain, emotional distress and mental anguish — all of which come within the definition of personal injuries provided in Moore. The count in question also asks reimbursement for the cost of mental counseling and for wages lost during the period of mental recovery. We do not regard these requested damages as true contract damages of the type sought in Murray, i.e., cost of completing the bargained for performance and/or cost of remedying the defects in performance. Rather, we deem these asserted damages as wholly derived from and concomitant to the physical pain, emotional distress and mental anguish for which appellants seek redress. Hence, they also constitute damages for personal injuries.

Inasmuch as appellants have not sought true contract damages in their designated count in assumpsit but have confined their claim to damages for personal injuries, appellants’ action against appellee is barred by the two-year statute of limitations. 12 P.S. § 34. Therefore, the common pleas court has properly entered judgment on the pleadings for appellee, and we affirm.

      . In pertinent part, 12 P.S. § 34 states:
      Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards....

      . In significant part, 12 P.S. § 31 states:
      [A] 11 actions upon account and upon the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants) ... shall be commenced and sued within the time and limitation hereafter expressed, and not after; that is to say, the said actions upon the case, other than for slander, and the said actions for account ... within six years next after the cause of such actions or suit, and not after.

      . Alternatively, appellants argue on appeal that they should be afforded the opportunity to amend their complaints to include a demand for contract damages. We have carefully reviewed the record and have determined that appellants’ request to amend their pleadings is being made for the first time at the appellate level and was never addressed to the common pleas court. Consequently, this issue has not been preserved for appellate consideration since "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302; Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).


author: WICKERSHAM, Judge:

text:
    510 A.2d 355
    Dorothy E. WINGER, Appellant, v. CROWTHERS, INC., Andrews and Pinkstone, Inc., Toole Associates, Inc., and Summit House Condominium Association.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed May 27, 1986.

      Frederick W. McBrien, III, Norristown, for appellant.
    Nancy C.M. Balliet, West Chester, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Dorothy E. Winger appeals from the order of the Court of Common Pleas of Chester County which denied her motion to reactivate and/or reinstate a dismissed cause of action.

On October 31, 1979, appellant purchased Unit 646F, Summit House Condominiums, located in West Chester, Chester County, Pennsylvania. On October 28, 1980, she filed a complaint alleging that she had been fraudulently induced into purchasing the condominium unit by appellees Crowthers, Inc. (“Crowthers”) and Andrews and Pinkstone, Inc. (“Andrews and Pinkstone”), the realtors involved in the sale; Toole Associates, Inc. (“Toole”), the firm managing the condominium; and Summit House Condominium Association (“SHCA”), a homeowners’ group. Appellant claimed that all appellees knew or should have known about various latent construction defects in the condominium unit and on this basis sought recovery of the cost of repairs to her unit or, in the alternative, the diminution in value of her property caused by the defects. The complaint was inadvertently filed in Montgomery County, but was subsequently transferred to Chester County by order dated March 9, 1981. On October 26, 1983, the trial court dismissed appellant’s action for inactivity pursuant to Chester County Rule 214.4. Appellant allegedly did not receive any notice of the court’s termination of this action until June 29, 1984, in the course of another action involving SHCA, one of the appellees herein.

On July 25, 1984, appellant filed a motion to reactivate and/or reinstate the dismissed action. Subsequently, after answers were filed and the deposition of appellant’s counsel was taken, the court denied appellant’s petition by order dated January 16, 1985. Appellant filed this timely appeal to our court in which she raises the following four issues for our consideration:

1. Is Local Rule 214.4 of the Rules of Procedure of the Court of Common Pleas of Chester County ineffective and unenforceable for failure to provide for pre-termination notice as required by Rule 1901 of Pennsylvania Rules of Judicial Administration?
2. Did the Chester County Common Pleas Court’s enforcement of Local Rule 214.4 in effect dispense with notice to the parties prior to termination of the case for inactivity in violation of Rule 1901 of the Pennsylvania Rules of Judicial Administration?
3. Does Local Rule 214.4 of the Rules of Procedure of the Court of Common Pleas of Chester County, Pennsylvania and/or its implementation herein violate the due process clause of both the Pennsylvania and the United States Constitutions?
4. Did plaintiff meet its burden of proving “good cause” for the reinstatement and/or reactivation of her case dismissed, without notice to any of the parties, for inactivity?

Because of our disposition of appellant’s first issue, however, we find it unnecessary to reach the merits of those issues remaining.

In her first issue, appellant alleges that Chester County Common Pleas Local Rule 214.4, which provides for the automatic termination of cases in which there has been no activity of record for a period of two years or more, without notice of an opportunity for a pre-termination hearing, is inconsistent with Pennsylvania Rule of Judicial Administration 1901(c) so as to render the local rule unenforceable.

Rule 214.4 provides for the automatic termination “by operation of law” of any matter in which there has been no activity of record for two years or more. The rule contains a provision for reactivation of a case by the court for “good cause” shown. The local rule was enacted pursuant to Rule 1901 of the Pennsylvania Rules of Judicial Administration and in fact, is identical to the suggested local rule provided in the note to that general rule. Appellant nonetheless contends that the local rule is inconsistent with the general rule because it does not contain a provision for “at least 30 days’ written notice of opportunity for hearing on such proposed termination,” as does the general rule.

In light of our recent disposition of the same issue in Taylor v. Oxford Land, Inc., 338 Pa.Super. 609, 488 A.2d 59 (1985), concerning the similar Allegheny County Local Rule 229, we are constrained to agree. In Taylor we stated that even were the note following Rule 1901 read to authorize the adoption of a local rule which eliminated the pre-termination notice required in the rule itself, the general rule must govern. Id., 338 Pa.Superior Ct. at 614, 488 A.2d at 62. Our court in Taylor further explained that it did not construe the note to have such a meaning, stating:

Rule 1901(c) provides two methods of giving the prescribed pre-termination notice. Notice must be given in person or by mail, or by publication “in the manner provided by rule of court____” The statement contained in the [Note] clearly refers to the second method of providing notice, that is, by publication. As we understand it, the 30 days prior notice may be given periodically, by the trial court’s entry of an order or adoption of a general rule providing for the publication of a list of cases by name and docket number in which there has been no activity for a period in excess of two years. After such publication, those cases listed in the notice will then be considered terminated if no action is taken within the 30 days provided. Such an interpretation thus gives meaning to both the rule and the [note]. A contrary interpretation ... would effectively rewrite the rule and eliminate the requirement for pre-termination notice. Such an interpretation would render subsection (c) utterly meaningless and without effect. We do not believe that the Supreme Court, in adopting Rule 1901(c), intended to perform a useless act.

Id., 338 Pa.Superior Ct. at 614-15, 488 A.2d at 62.

Following Taylor, we conclude that “the clear language of Rule 1901 requires pre-termination notice and because ... [the] local rule fails to provide for such notice, it is ineffective and unenforceable.” Id., 338 Pa.Superior Ct. at 615, 488 A.2d at 62-63. Therefore, appellant’s case was not “automatically” terminated and the order must be reversed.

Order reversed, case remanded. Jurisdiction relinquished.

      . Rule 214.4 provides as follows:
      (a) The prothonotary shall cause to be listed for general call at the first civil argument court held after September 1 of each year all civil matters in which no steps or proceedings have been taken for two years or more prior thereto and shall give notice thereof to counsel of record, and to the parties for whom no appearance has been entered, as provided by Pa.R.J.A. No. 1901(c). If no action is taken or no written objection is docketed in such a matter prior to the commencement of the general call, the prothonotary shall strike the matter from the list and enter an order as of course dismissing the matter with prejudice for failure to prosecute, under the provisions of this rule. If no good cause for continuing a matter is shown at the general call, an order shall be entered forthwith by the court for dismissal.
      (b) The clerk of courts shall list at the first criminal argument court held after September 1 of each year all criminal proceedings in which no steps or proceedings have been taken for two years or more prior thereto and shall give notice thereof to the district attorney, any private prosecutor and the defendant, as provided by Pa.R.J.A. No. 1901(c). If no good cause for continuing a proceeding is shown at the general call, an order for dismissal shall be entered forthwith by the court.
      Under Rule 1901(c)(2), in those cases where it is unduly burdensome to research the captions, parties and mailing addresses of cases which have been inactive for two years or more, the moribund matters may be terminated by the adoption and publication of a general refiling requirement, without service of individual notice. Under such a local rule matters in which no paper has been filed within the previous two years would be deemed terminated without any further entry in the docket, and all such matters could be excluded from any computerized or other modern docket control system installed in the judicial district, subject to the right of the parties to reactivate the matter for good cause shown.

      . This separate action was initiated by SHCA against appellant a short time after appellant filed the instant action, and indexed at No. 191, December Term 1980. In this second suit, SHCA sought to recover the special assessment imposed by it on all condominium owners to repair the construction defects which appellant alleged had been not disclosed to her in the first action. In response to the second suit, appellant filed an answer, new matter and counterclaim in which she incorporated by reference all allegations in her complaint in the first action. SHCA filed preliminary objections to this pleading, alleging that appellant had improperly joined a counterclaim in trespass with a complaint in assumpsit. Those preliminary objections were sustained. The distinction between assumpsit and trespass actions being dispensed with in the interim, however, appellant filed an amended answer and new matter again incorporating all of the allegations in her original complaint. SHCA then responded with a second set of preliminary objections to appellant’s amended answer and new matter which, to date, has still not been disposed of by the court. Appellant's counsel testified that only when reviewing SHCA’s second set of preliminary objections, on June 29, 1984, did he receive any notice of the court's intention to dismiss the action. (N.T. at 3-6). On July 5, 1984 appellant’s counsel received confirmation from the Chester County Prothonotary’s Office that this case had been dismissed for lack of activity, and on July 25, 1984 appellant filed a motion to reactivate and/or reinstate the dismissed cause of action.

      . We do not believe that appellant has waived this issue nor issues II and III for failure to specifically allege that the local rules’ notice provisions were inadequate below. We acknowledge that generally a matter not raised in the trial court will not be considered on appeal. See Commonwealth v. National Federation of the Blind, 471 Pa. 529, 370 A.2d 732 (1977) (issue raised on appeal after denial of preliminary objections, which was not contained in preliminary objections or otherwise presented to the court, was waived). We hold, however, that here the issue was not waived for failure to raise it below because one of the principal reasons for the rule, ie., that it is unfair to reverse the trial court on a propositon not brought to its attention, does not exist in this case. See Napoli v. Bianco, 342 Pa.Super. 235, 492 A.2d 738 (1985). Here, appellant did present the trial court with the lack of notice issue central to her current issues on appeal. See Plaintiff's Brief In Support of Motion To Reactivate And/Or Reinstate Dismissed Cause of Action at 3-4. While it is true the notice issue did not comprise the major portion of her brief in support of reactivation, we must conclude that that issue was sufficiently discussed so as to form the basis for appellant’s more eloquent formulation of that issue on appeal.

      . Rule 1901(c) provides in pertinent part as follows:
      (c) Minimum standards. Before any order terminating a matter on the ground of unreasonable inactivity is entered, the parties shall be given at least 30 days’ written notice of opportunity for hearing on such proposed termination, which notice shall be given:
      (1) In person or by mail to the last address of record of the parties or their counsel of record and setting forth a brief identification of the matter to be terminated; or
      (2) By publication in the manner provided by rule of court in the legal newspaper designated by rule of court for the publication of legal notices in any case where notice by mail cannot be given or has been returned undelivered or where the docket of the matter shows no evidence of activity during the previous two years. Any matter terminated after notice by publication pursuant to this ■paragraph may be reinstated by the court after dismissal upon written application for good cause shown.

      . Appellees draw our attention to Chester County Local Rule 233.1, which provides for notice by publication in the Chester County Law Reporter of those actions to be dismissed for inactivity. Appellees would equate the above rule with the procedure provided by Philadelphia County Local Rule 130, which similarly provides for termination of inactive cases. See Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983); Chaplynsky v. Broad Street Hospital, 305 Pa.Super. 497, 451 A.2d 757 (1982). However, the Philadelphia rule requires notice by publication in the Legal Intelligencer sixty days prior to termination for inactivity. Publication in a purely local journal and without any express time of notice (although "notice” did in this instance occur 60 days in advance of termination) is simply not comparable. Thus, none of the cases involving the Philadelphia rule reach the issue in this case. See Taylor v. Oxford Land, Inc., 338 Pa.Super. 609, 613, 488 A.2d 59, 61 (1985).


author: KELLY, Judge:

text:
    510 A.2d 359
    Nicholas STREDNY, Appellant, v. Paula GRAY, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1986.
    Filed June 4, 1986.

      Joseph J. Savitz, Wilkes-Barre, for appellee.
    Before ROWLEY, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

This appeal is from an order modifying an existing support order and directing appellant to pay the sum of $4,255.00 representing one-half of school expenses of the minor daughter for the 1983-84 school term, plus arrearages under a pre-existing support order. For the reasons stated below, we affirm.

The facts of this case, as presented to the Domestic Relations Master, hereinafter the Master, and affirmed by the lowér court, are as follows. The parties were married in 1971, and were subsequently divorced in 1974. Both have since remarried other persons. There was one child born of the marriage, Darrah, who is the subject of this support modification dispute. Appellant/father now has a stepdaughter by reason of his remarriage, and appellee/ mother has a second daughter by her present spouse, a chiropractor. Darrah resided with appellee until June 10, 1984 when she began residing with appellant.

Darrah was placed by appellee, the custodial parent, in a private school for emotionally disturbed children for the 1983-84 school term. The school tuition is $8,500 per school year. Appellee, on October 12, 1983, filed a petition for modification of the existing support order so that appellant would contribute to the tuition payments; appellant, on the same day, filed a request for reduction of the existing support order which mandated payment of $40.00 a week during periods of appellant’s employment, and $15.00 a week during periods when appellant collected unemployment compensation.

Appellee, after the birth of Darrah, worked at the PerkinElmer Corporation and earned $30,000 annually. She quit that job at the birth of her second child. Appellee now operates a business at a flea market three days a week. Appellee’s gross income from this business was approximately $7,000 in both 1982 and 1983. Appellee’s decision not to return to full-time work after the birth of her second child was based on a fear that her second child would develop emotional problems, as had her first.

Appellant/father, a college graduate, is seasonally employed in his father’s business, the Dallas Nursery, as a horticulturalist. From November through April appellant collects unemployment compensation. Appellant testified that his combined income sources totalled approximately $11,000 in 1983 (R. at 52a). Appellant pays the mortgage on his home which is built on his father’s property; his father cosigned the loan for the home. (R. at 51a). Appellant testified that in the future his home will be free of the mortgage debt. Furthermore, he will own one-half of his father’s business; his brother will own the other half (R. at 57a). Appellant’s present wife is unemployed and receives $40.00 weekly for support of her child by a previous marriage.

The record also discloses the following facts, the implications of which bear directly on the lower court’s holding in this action. Appellant was able to borrow money from a local bank to finance alterations and additions to his home; appellant gave no collateral for the $15,000 he borrowed. Appellant’s attorney characterized this loan as a mortgage but the record supports the Master’s finding that the loan was in fact unsecured (R. at 60a). Appellant listed his monthly expenses, including Darrah’s weekly support payments, as being $1,481.80 monthly or approximately $17,780 annually (R. at 103a). This amount clearly exceeds his alleged annual income of $11,000. Appellant admitted on cross-examination that he and his wife had recently travelled to Florida; he refused to characterize the trip as a vacation but said it was conducted in pursuit of his wife’s family business. Appellant does not own a car but has full use of the car owned by his father’s business. Appellant had a documented history of being in arrears for his support payments; for example, at the time of the March 10, 1984 hearing before the Master, appellant owed $1,045 in support payments (R. at 27-28a).

Darrah’s annual expenses calculated from March 1983 to March 1984 totalled $14,844, including the $8,500 tuition payment, or $6,344 excluding tuition (R. at 31a). Appellant during this year had contributed only $200 of his total obligation (R. at 28a) of $1,245 (R. at 27a). Appellee, in addition to paying Darrah’s expenses and tuition, maintained payments for all Darrah’s health and life insurance; Darrah had a kidney removed at age 5 and consequently has special medical considerations (R. at 32a).

Appellee stated she consulted appellant about her decision to enroll their daughter in private school (R. at 28a-29a). Appellant agrees with appellee that their daughter is emotionally disturbed and that the school was “a good idea.” (R. at 62a). Appellee further testified, and was not contradicted by appellant, that appellant visited the private school in New Hampshire and approved of it (R. at 14a). Appellant assumed his support payments would be used as part payment of the tuition (R. at 21a).

Appellee also stated, again without contradiction, that appellant’s present wife and her parents as well as appellant’s own parents volunteered to contribute to Darrah’s tuition and expenses but “Nicky’s (appellant’s) answer was ‘No’, that’s not their responsibility____it’s my responsibility.” (R. at 35a and 36a).

The Master found that, based on appellant’s ability to secure a loan without collateral, and the other factors cited above, the appellant had access to funds beyond those appellant disclosed to the Master. The Master concluded it was not unreasonable, therefore, to order appellant to pay one-half of the child’s tuition expenses.

Upon review of the Master’s report, the Honorable Hourigan, P.J., entered an order incorporating the Master’s findings, dismissing appellant’s exceptions thereto, and affirming the decision of the Master.

Appellant raises two issues for review:

1. Whether the Court below abused its discretion in ordering appellant to pay the sum of $4,255 for special education school expenses for his minor daughter to the appellee directly, when appellee never consulted with appellant regarding this expenditure, nor did appellant ever agree he would be responsible for this expense.
2. Whether the Order of the Court below ordering appellant to pay the sum of $4,255, representing payment for special education school expenses for his minor daughter is confiscatory and violative of existing law based on appellant’s income.

(Appellant’s brief at 3).

Our review of the lower court’s decision is limited to ascertaining whether there was sufficient evidence to sustain the order and whether there has been an abuse of discretion by the lower court. Berry v. Berry, 278 Pa.Super. 30, 419 A.2d 1340 (1980); Commonwealth ex rel. Hall v. Hall, 243 Pa.Super. 162, 364 A.2d 500 (1976).

As to appellant’s first argument, appellant’s own sworn testimony belies his assertion that he was not consulted and did not agree to having his daughter enrolled in special school. We reproduce the pertinent testimony here:

Q. You heard your ex-wife testify that you helped in selecting a school for your daughter, Darrah. Is that true?
A. No, not exactly. She presented — her and her ... her and her husband a possibility of Darrah going to school
Q. Did you consent to it?
A. Yes, I thought it was a good idea.

(R. at 62a).

Furthermore, appellant declared to appellee and members of both families at a group meeting that it was his responsibility, his and appellee’s responsibility alone, to raise money for the tuition. (R. at 35a-36a). Appellant asserted his belief that his arrears, if paid, would be applied to Darrah’s tuition. (R. at 21a). This indicates to this Court that appellant had no quarrel with his money going toward the daughter’s tuition requirements. It offends our notion of fairness that appellant now on appeal attempts to deny either his consent or his assumption of responsibility for the increased financial burden of his daughter’s education.

Our standard of review is guided by firm principles. We will affirm the lower court absent a finding of insufficient evidence or abuse of discretion. Commonwealth ex rel. Sosiak v. Sosiak, 177 Pa.Super. 116, 111 A.2d 157 (1955). We find the appellant’s own testimony was sufficient evidence for the lower court to decide to affirm the Master’s recommendation on the first issue presented on appeal. We, therefore, find no abuse of discretion, and uphold the decision of the lower court.

The law of child support in this Commonwealth, as our Supreme Court has noted, is clear in its fundamentals. However, “[w]hile there is no shortage of case law announcing these principles, there is a total lack of organization with respect to how these principles interact____” Melzer v. Witsberger, 505 Pa. 462, 468, 480 A.2d 991, 994 (1984). Nonetheless, we begin our analysis of appellant’s second issue with a review of applicable caselaw.

A father has the responsibility to support his children, Hecht v. Hecht, 189 Pa.Super. 276, 150 A.2d 139 (1959), to the best of his ability, Commonwealth v. Cleary, 95 Pa.Super. 592 (1929). His ability to give support is determined by examination of his property, his income, his earning capacity and the station in life of the parties. Commonwealth ex rel Firestone v. Firestone, 158 Pa.Super. 579, 45 A.2d 923 (1946). The obligation of the father is to make personal sacrifices to furnish the children with their basic needs; however, the order should not be unfair or confiscatory. The purpose of a support order is the welfare of the children and not the punishment of the father. Commonwealth ex rel. Shumelman v. Shumelman, 209 Pa.Super. 87, 223 A.2d 897 (1966). Support orders which represent a contribution of more than one-half of the proven earnings of a parent in some cases are unreasonable. Warner v. Warner, 194 Pa.Super. 496, 168 A.2d 755 (1961).

In the case before us there is no allegation that either the Master or the lower court intended to punish the appellant. The child’s disability is such that special education is clearly in her best interest; special children may demand of their parents special sacrifices. Moreover, appellant was not asked to contribute half of his alleged income of $11,000, and was asked to contribute less than one-half of his daughter’s demonstrated need. He was being asked for the arrearages of $1,045 plus $4,225 for tuition, or a total of $5,270. Appellee, her second spouse, and family have been contributing the greater portion of Darrah’s expenses, and had been contributing all of Darrah’s expenses during the arrearage period of appellant.

Finally, this Court does not have to accept that the $11,000 alleged income constitutes the total funds that are available to appellant. This Court previously has held that a trial court may look beyond the actual earnings of a father in determining his support obligation to his children. Commonwealth ex rel. McNulty v. McNulty, 226 Pa.Super. 247, 311 A.2d 701 (1973). Courts may look to a parent’s earning power, especially where there is a question of bad faith, i.e., hiding assets or deliberately choosing a lower paying job in order to escape support responsibility. Ransome v. Ransome, 65 D. & C.2d 197 (1973). “In a support proceeding, the trial judge who sees and hears the witnesses is in a better position than the Superior Court to decide the issue on its merits.” Commonwealth ex rel. Friedman v. Friedman, 223 Pa.Super. 66, 67, 297 A.2d 158, 159 (1972).

In this case, the Master found appellant’s testimony to be less than credible. In particular, appellant’s ability to obtain an unsecured loan for household improvements amounting to $15,000 was not consistent with the diminished earning capacity appellant claims is the horticulturist’s lot in life. We find, given the Master’s first hand impression, and given the existence of evidence to support the Master’s incredulity, the trial court acted properly to uphold the Master’s finding that “appellant is able to obtain funds over and beyond the earnings and Unemployment Compensation.” (R. at 84a).

Appellant next contends that the court erred in not taking into sufficient account appellee’s earning capacity. Appellant contends that to ignore appellee’s earning power while examining his own is a violation of the state constitutional provisions of the Equal Rights Amendment.

Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability. Thus, when we consider the order to be assessed against the father, we must not only consider his property, income and earning capacity but also what, if any, contribution the mother is in a position to provide.

Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). He argues the Court should look to appellee’s former salary level of $30,000.00 as the measure of her earning capacity. However, we have recognized that the child care contributions of an unemployed, nurturing parent are important, and have stated that an unemployed, nurturing parent should not be expected to find employment to advance a child’s economic welfare at the expense of the child’s emotional welfare. Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977).

“... Of course, a court is not strictly bound by the nurturing parent’s assertion that the best interest of the child is served by the parent’s presence in the home____ But the court must balance several factors before it can expect the nurturing parent to seek employment. Among those factors are the age and maturity of the child; the availability and adequacy of others who might assist, the custodian-parent; the adequacy of available financial resources if the custodian-parent does remain in the home. We underscore that, while not dispositive, the custodian-parent’s perception that the welfare of the child is served by having a parent at home is to be accorded significant weight in the court’s calculation of its support order. (Emphasis added).

Wasiolek, supra, 251 Pa.Superior Ct. at 113-114, 380 A.2d at 402-3; see Bender v. Bender, 297 Pa.Super. 461, 444 A.2d 124 (1982).

Applying the Wasiolek factors to the facts of this case, we find that appellee’s daughter by present husband was very young (only 3V2 years old). Secondly, we find that appellee perceived that the welfare of this child would not be served by babysitters and day care facilities; appellee believed that Darrah’s problems were the direct result of inadequate day care situations while she was employed. Appellee’s perception that she was needed at home to spot the onset of potential emotional difficulties involving her infant daughter is accorded significant weight, especially in light of the emotional problem her elder daughter Darrah did, in fact, develop. Just as we cannot force a parent to choose between a child’s economic and emotional welfare, see, Wasiolek, supra, we cannot force a custodial parent to choose between the economic welfare of one child, in this case Darrah, and the emotional welfare of another, her second child.

The third factor to be examined is the “adequacy of available financial resources if the custodian-parent does remain in the home.” Appellant contends that the Master and trial court erred in failing to obtain evidence of appellee spouse’s contributions to their household, citing Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982). Since Commonwealth ex rel. Travitzky v. Travitzky, 120 Pa.Super. 435, 440, 326 A.2d 883, 885 (1974), we have recognized that:

[I]f the second wife [is] gainfully employed and if her earnings or a portion thereof [are] contributing] to the family budget, such facts would be relevant in determining the father’s ability to pay for his minor children.

Moreover,

Where the record demonstrates that the lower court has failed to consider all factors relevant to the award of support, we will remand for a full evidentiary hearing. Pawol v. Pawol, [293] Pa.Super. [29], 437 A.2d 974 (1981).

We find ample indication that the Master considered evidence of the contributions of both parties’ new spouses. The Master was obviously aware of the relevance of such testimony:

BY ATTORNEY COMETA:

At this point, Mr. Master, Mrs. Gray is remarried; her husband is a chiropractor. Mr. Stredny is remarried and whatever income his present wife may have is irrelevant in basing a support decision.

BY THE MASTER:

That’s true, but [I]’m sure you’re well aware that it is taken into consideration as to the circumstances at home and as to whether or not the wife does make any contributions to the home situation and so forth. There’s a big difference between a wife who has no income whatsoever and a wife who does — insofar as the home expenses themselves go. It is true that any income of the wife has no part of the support hearing and certainly his present wife is not responsible for any of the support for his daughter. But the questions of her support, the support of her daughter and any contribution to their home life, they are relevant. (R. at 64a).

In addition, the Master had heard testimony that appellee’s family, including her present husband, mother and mother-in-law, were contributing directly to Darrah’s educational expenditures, despite the fact that they were under no legal obligation to do so (R. at 14a, Master’s Report at 75a). As stated, supra, Darrah’s pretuition expenses were $6344. (R. at 31a). Appellant’s support payments of $40.00 or $15.00 weekly totalled $1245.00 annually. (R. at 28a). Appellant was obligated to pay only $1245.00 of his alleged annual income of $11,000.00 while the appellee was contributing the remaining $5099.00 of Darrah's expenses out of her $7,000.00 annual income. Moreover, appellant only paid during this period $200.00 of his obligatory $1245.00, so his arrearages amounted to $1045.00. When Darrah’s tuition payment of $8,500.00 is added into these calculations, appellee was paying $13,599.00 plus the arrearage amount of $1045.00 for a total of $14,644.00 in the year 1983. Approximately $6554.00, over and beyond appellee’s $7,000.00 income, was being contributed to Darrah’s support by members of appellee’s family. In other words, appellant had paid only $200.00 while appellee and her family paid $14,-644.00. Thus appellee’s spouse, out of necessity, has been contributing directly to appellee’s child in addition to supporting the ordinary operating expenses of his own household. We believe that this was sufficient evidence for the Master to utilize in reaching his decision, and thus distinguish this case from Shank, supra, wherein the record was devoid of any evidence regarding a second spouse’s contributions toward defraying household expenses.

Finally, we are also mindful that:

A parent of minor children who works in the home caring for children should be viewed as employed although he or she usually receives no pay check at the end of the week.

Butler v. Butler, 339 Pa.Super. 312, 319, 488 A.2d 1141, 1142 (1985).

However, this appellee did engage in part-time financial activity, earning approximately $7,000.00 annually. This activity was in addition to her role as primary caretaker for her younger daughter. Of that $7,000.00 income, we realize appellee had to contribute all of it to Darrah’s tuition, living expenses, health and life insurance since the appellant was in arrears with the support payments he was obligated to contribute under the pre-existing support order. This mother has made special sacrifice for this special child. For all the foregoing reasons we are compelled to affirm the lower court in rejecting appellant’s assertion that appellee’s earning power was not accorded sufficient weight in the Master’s determination of support payments.

We further agree with the lower court that the Master found sufficient evidence of appellant’s ability to access funds beyond those he claimed as income. We agree that appellee’s decision to remain at home with her second daughter was appropriate and that the trial court properly considered the total resources available to support the parties’ child. The trial court committed no abuse of discretion by ordering appellant to pay one-half of his daughter’s school tuition. Accordingly, we affirm the Order of the court below.

ROWLEY and MONTEMURO, JJ., concur in the result.


author: WATKINS, Judge:

text:
    510 A.2d 365
    COMMONWEALTH of Pennsylvania, Appellant, v. John KOPYCINSKI, a/k/a John Cooper.
    Superior Court of Pennsylvania.
    Submitted Nov. 25, 1985.
    Filed June 4, 1986.
    Petition for Allowance of Appeal Granted Oct. 30,1986.

      Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Com., appellant.
    Louis S. Gold, Pittsburgh, for appellee.

      Before CIRILLO, BECK and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Allegheny County, Criminal Division, and involves a Commonwealth appeal from a judgment of sentence imposed upon the appellee by the court below.

On November 29, 1984, the appellee-defendant was found guilty of Driving While Under the Influence of Alcohol pursuant to 75 Pa.C.S.A. § 3731(a)(1). On January 30, 1985, he was sentenced to undergo imprisonment for a period of forty-eight (48) hours, to pay the costs of prosecution and a $300 fine, to undergo evaluation by the local alcohol program, and to attend the Safe Driving School with an additional cost of $250.00. The Commonwealth appealed that sentence to our Court because the court below refused to sentence the defendant as a recidivist pursuant to 75 Pa.C.S.A. § 3731(e)(1)(H) which mandates a thirty (30) day minimum prison sentence if the person has been previously convicted of driving while intoxicated within the previous seven (7) years. Defendant had been convicted of driving while intoxicated within the past seven (7) years but the court below held 75 Pa.C.S.A. § 3731(e)(1)(H) unconstitutional as an ex post facto law because the previous conviction occurred before the thirty (30) day prison sentence had been mandated by the statute. We disagree.

The penalty provisions of Section 3731 are not violative of constitutional provisions proscribing ex post facto laws because section 3731 did not transform a previously legal act into an unlawful one. It did not permit the sentence attending the previous conviction to be increased. It merely notified an offender of what punishment would attend convictions based upon post-amendment violations. Thus, Section 3731 is not unconstitutional merely because it requires a sentencing court to consider a conviction which had occurred before the new law went into effect in imposing sentence on a subsequent conviction. Commonwealth v. Grady, 337 Pa.Superior Ct. 174, 486 A.2d 962 (1984). Section 3731 only punishes persons for conduct committed subsequent to its effective date. It is only future conduct which is punished. Sentences imposed for past conduct are not affected by the new statute. The mandatory thirty (30) day prison sentence for recidivists under the statute is a stiffened penalty for the later crime which is considered to be an aggravated offense because it is a repetitive one. See Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). Thus, the court below erred when it found the statutory penalty violative of the constitution as an ex post facto law.

Appellee argues that the court below acted correctly because the information charging him with the offense failed to set forth the prior conviction. However, the Commonwealth is not required to allege prior convictions in a criminal information under the Drunk Driving Act because the prior conviction for drunken driving does not constitute an element of the crime of driving while under the influence of alcohol. Commonwealth v. Reagan, 348 Pa.Superior Ct. 589, 502 A.2d 702 (1985). Reagan held that such notice must be provided to a defendant prior to a guilty plea. No guilty plea was entered in the instant case. The mandatory sentence provisions apply to appellee.

Judgment of sentence reversed and case remanded for re-sentencing.


author: OLSZEWSKI, Judge: HOFFMAN, Judge, CAVANAUGH, Judge,

text:
    510 A.2d 367
    COMMONWEALTH of Pennsylvania v. Robert Lewis BAILEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 3, 1985.
    Filed June 2, 1986.

      Daniel McGee, State College, for appellant.

      Robert A. Mix, District Attorney, State College, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Robert Bailey appeals from the judgment of sentence of one to two years’ incarceration following conviction by jury of one count of indecent assault.

The facts show that appellant separated from his common-law wife in 1976, leaving her with custody of their two sons. Appellant retained visitation rights. On a weekend in February 1981, appellant picked up his two sons for a visit to his house in Centre County. Appellant’s nine-year-old son, G.B., went to bed on Friday evening. Sometime thereafter, appellant came to bed, disrobed, and told G.B. to take off his pajamas. Appellant removed G.B.’s underwear and inserted his penis into G.B.’s anus.

G.B. returned to his mother’s home at 10:30 Sunday evening, took a bath, and went to bed. When his mother arose at 7:00 on Monday morning, she found bloodstains on G.B.’s underwear and questioned him about their origin. G.B. became upset, began to cry, and told his mother what had happened. A physician examined G.B.’s rectum and found a fresh abrasion which he testified was consistent with G.B.’s story.

Appellant was charged with one count of each of indecent assault and involuntary deviate sexual intercourse. Appellant was convicted by jury only of indecent assault. Following post-trial motions, this appeal is before us.

Appellant raises four questions for our review: First, he argues that the lower court erred in admitting hearsay statements by the boy’s mother as to G.B.’s responses to her questions about the origins of the bloodstains in his underwear. We hold that the statement was properly admitted under the spontaneous declaration exception to the hearsay rule. Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978). The exception requires that the statement must be:

... a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.

477 Pa. at 137-138, 383 A.2d at 860 (citation omitted).

In the instant case the victim, a boy of tender years, was subjected to a devastating experience at the hands of his father. The boy was required to remain with appellant for two days following the event. When he returned home Sunday evening, he went immediately to bed. Confronted with the bloodstains, the boy became visibly upset and cried. His statement to his mother was not made in a calm and unemotional manner. We agree with the court below that Monday morning was the first available opportunity that the victim had to speak of the incident outside of the presence or influence of appellant.

The statement was properly admitted as the product of an overpowering emotion caused by a shocking, traumatic, and humiliating experience. The time lapse between the indecent assault and the statement did not negate the clear indicia of reliability which underlies the spontaneous declaration exception. The requirement of spontaneity is a question which turns on the particular circumstances of each case. Pronkoskie, supra. The definition of spontaneity is relaxed when the child declarant is the victim of sexual assault. Id. The statement was reliable and properly admitted into evidence.

Appellant next argues that the lower court erred in not finding that the verdict was contrary to the evidence and to the weight of the evidence. After a thorough review of the record, we find ample evidence to support a verdict of guilt beyond a reasonable doubt. The victim testified that appellant inserted his penis in his “butt” and began “rocking back and forth.” Notes of trial at 38-42. Dr. Troyer testified that his examination of the victim revealed an abrasion of his rectum, and that the injury was consistent with the complaint. Accepting as true all of the evidence in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, we hold that the verdict was not contrary to the evidence. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). Although appellant presented some conflicting evidence at trial, the jury’s verdict was based on its determination of the credibility of the witnesses. See Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975). Appellant has presented no argument to question whether the jury’s verdict was properly rendered.

Finally, appellant argues that the sentence is excessive under the circumstances of this case. Appellant concedes that the sentence imposed is within the statutory maximum limit. We hold that the lower court did not abuse its discretion in the imposition of sentence. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). The lower court considered that appellant’s prior criminal history includes a 1978 conviction for indecent assault and corruption of minors; appellant’s medical needs; and the serious nature of this offense, which appellant committed against his own son. The term of imprisonment and recommended treatment for alcohol abuse meets appellant’s rehabilitative needs.

The judgment of sentence is affirmed.

HOFFMAN, J., files concurring opinion.

CAVANAUGH, J., files dissenting opinion.

HOFFMAN, Judge,

concurring:

While I agree with the dissent that the testimony of the victim’s mother concerning his statements about the sexual abuse by appellant were not admissible under the exception to the hearsay rule for excited utterances, I believe that the testimony was admissible as evidence of a prompt complaint.

Evidence of a complaint of a sexual assault is “competent evidence, properly admitted where limited to establish that a complaint was made and also to identify the occurrence complained of with the offense charged.” Commonwealth v. Freeman, 295 Pa.Superior Ct. 467, 475, 441 A.2d 1327, 1331 (1982). See also Commonwealth v. Green, 487 Pa. 322, 328, 409 A.2d 371, 374 (1979); Commonwealth v. Krick, 164 Pa.Superior Ct. 516, 522, 67 A.2d 746, 749-50 (1949). In the instant case, the victim’s mother testified about her son’s statements concerning the assault as follows:

[District Attorney:] I’ll repeat my question. Directing your attention to Monday morning, March 2, 1981, you had a conversation with your son ... with regard to blood on his underpants. Would you please state as best as you can recollect for the members of the jury the substance of that conversation?
[Victim’s mother:] He told me that his dad made him do bad things. He said his dad stuck his penis in his bum.

N.T. October 14, 1981 at 75. I believe that this testimony was properly limited to establishing that a complaint was made and to identifying the occurrence complained of with the offense charged. See, e.g., Commonwealth v. Krick, supra (admitting father’s testimony in statutory rape prosecution that his daughter told him that she had intercourse with the defendant).

The dissent, however, would find that the complaint was inadmissible because it was not made promptly enough. See slip op. at 4-5. I disagree.

It should be observed too that the weight attaching to a complaint depends upon the promptness with which it is made and the nature and explanation given for any delay. Indeed an unreasonable or unexplained delay may, in the circumstances, justify an inference against the sincerity of the complainant. ... The weight of the testimony is for the jury but the court should carefully instruct it as to the relative probative value of prompt and delayed complaints, the circumstances in which they are made or withheld, and the possible inferences which may be legitimately drawn from them.

Commonwealth v. Krick, supra, 164 Pa.Superior Ct. at 522, 67 A.2d at 750. Here, the trial court admitted the evidence of the victim’s complaint and specifically instructed the jury on how to weigh the evidence of his complaint:

[I]n determining the facts here, consider that there was a period of time from apparently early Saturday morning when [the victim] said that his father committed the act that is alleged to have happened here, and the time of about 7:00 a.m. on the following Monday that [the victim], in response to his mother’s inquiry, told his mother what allegedly took place.
Now, the fact that there was that time lapse does not mean that the incident didn’t occur. It doesn’t mean that [the victim] made up this. It doesn’t mean that he’s not telling the truth. However, you can consider, just as one of the elements in determining the credibility to be given to the evidence here and the testimony here, that lapse of time.
You might consider that during that lapse of time that [the victim] was for the most part in the company of his father, or at least in his father’s home. These are the kinds of things that you should consider in weighing the testimony on that point, the testimony of [the victim].
The evidence that [the victim] delayed in making his complaint in this case, in other words, the time between the incident and his conversation with his mother, does not necessarily make his testimony unreliable, but may remove from it the assurance of reliability that would accompany the prompt complaint or the outcry which a victim of a crime such as this would ordinarily be expected to make. Therefore, the delay in making the complaint should be considered in evaluating the testimony of [the victim] in deciding whether the act occurred at all, or in — in this case it would have to be at all, because consent is not an issue due to the child’s age.
You must not consider [the victim’s] delay in making the complaint as conclusive evidence that the act did not occur. The failure to make prompt complaint is a factor bearing on the believability or the credibility of [the victim’s] testimony and must be considered by you in light of all the evidence in this case.

N.T. October 14, 1981 at 141, 146-47. Thus, I would find that the trial court properly admitted the testimony of the victim’s mother as evidence of a prompt complaint and instructed the jury to determine the weight to be accorded to that evidence.

I join Judge Olszewski’s opinion insofar as he finds the remainder of appellant’s arguments meritless.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent because, in my opinion, the facts establish that there was not a spontaneous declaration that would fall within an exception to the hearsay rule. The appellant, Robert Lewis Bailey, was separated from his common law wife, who retained custody of their two sons. The appellant had visitation rights and on a weekend in February, 1981, he took his two sons to his home in Centre County for a visit. His nine year old son, G.B., went to bed late on Friday evening. Sometime later, according to G.B.’s testimony, his father got into bed with him and sexually abused him.

G.B. and his brother remained with their father until Sunday evening when they returned home at about 10:30 P.M. and G.B. went to bed. On the next morning according to the testimony of his mother, she noticed that there was blood on her son’s underwear at about 7:00 A.M. Her testimony was as follows:

Q. Ms. Bailey, I’ll repeat my question. Directing your attention to Monday morning, March 2, 1981, you had a conversation with your son ... with regard to blood on his underpants. Would you please state as best you can recollect for the members of the jury the substance of that conversation?
A. He told me his dad made him do bad things. He said his dad stuck his penis in his bum. I asked him if he was telling the truth; he said yes. I asked him if he was willing to tell it to the police; and he said yes. Immediately I called the hotline for child abuse. They told me to call the hospital; they’d make arrangements for me to go down and have him examined, which I did. And then I notified the police.

The court below admitted the hearsay testimony of the alleged victim’s mother concerning what her son told her about the incident, under the excited utterance exception to the hearsay rule. The exception requires that a statement must be: "... a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.” Commonwealth v. Pronkoskie, 477 Pa. 132, 137-8, 383 A.2d 858, 860 (1978). See also Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982).

Now, I’m taking some pains to put this on the record as opposed to just making my decision because it does appear to the Court that this is — I would say so on the record, that this is a close decision because of the lapse of 36 hours. But the Court wants the record to reflect if it becomes important later that the Court is making its decision based upon the first opportunity of a 9 year old boy to speak in this case to his mother or to someone other than his father or father’s friends about the incident that occurred with his father.

The statement by G.B. to his mother more than 48 hours after the alleged incident and some 9 hours after he returned to his mother’s home was not a spontaneous utterance. On the Saturday after the incident G.B. played trucks and watched TV with his brother who was about 11 years old. Part of G.B.’s statement was in response to questions by his mother, and there was clearly time for reflection by him as the act occurred more than 2 days previously. See Commonwealth v. Kasko, 322 Pa.Super. 62, 469 A.2d 181 (1983). “... [TJhere is no clear cut rule as to the time sequence; whether the actual delay between the event and the statement is sufficient to negate ‘spontaneity’ must be resolved in the particular facts of each case.” Commonwealth v. Pronkoskie, 477 Pa. at 142, 383 A.2d at 863. While in this case the child remained with his father and his father’s friends until Sunday evening when he returned to his mother’s home, his first statements concerning the alleged abuse did not occur until the following morning and such statements do not have the requisite spontaneity. This case is controlled by our recent decision in Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986). The following language from that opinion is appropriate to our situation:

It is clear that the testimony of Mrs. Leigh-Manuel and Mrs. Predmore as to what their children told them was hearsay, since it related out-of-court assertions that were offered to prove their truth. Thus it was inadmissible unless it fit within an exception to the hearsay rule. The exception most commonly used by the courts to allow the admission of a child’s statements regarding sexual abuse is the spontaneous declaration, or excited utterance exception. But in order to fall under this exception, the statement must have been made so spontaneously as to be under the excitement caused by the event, so as to preclude the possibility of fabrication.

(Emphasis added — 505 A.2d 274-75)

The reason for carving out an exception to the hearsay rule based on an excited utterance is the element of reliability that is present in such spontaneous declarations. The requirement of spontaneity is not diminished because the declarant is a child.

The Commonwealth contends that even if the testimony of the alleged victim’s mother was inadmissible under the spontaneous declaration exception to the hearsay rule, it could be admitted to show that G.B. made a prompt complaint about the offense, citing Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327 (1982). This argument lacks merit as the complaint was not prompt and of equal importance, it was pointed out in Freeman, supra, that “[t]he challenged testimony of the victim and his sister-in-law, [was] introduced solely to establish that Ms. Eachus immediately reported that she was raped, [and] was neither detailed nor protracted.” 295 Pa.Super. 476, 441 A.2d 1332. See also Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985). As noted in Commonwealth v. Freeman, 295 Pa.Super. at 475-76, 441 A.2d at 1131-32, “Hue and cry are thought to follow rape like smoke follows fire.” In the instant case, however, there was too long a delay after G.B. came home to his mother’s house to render his statements to his mother admissible, as a prompt complaint.

I would remand for a new trial.

      . This issue of statements made by sexually abused children to a parent is not one of first impression before this Court. In Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986) the majority refused to allow the statements of two children, as told to their mothers, concerning what was done to them. I would also use a judically created tender years exception as outlined in my Haber dissent to allow the statements of G.B. to be admitted into evidence.

      . While evidence of a prompt complaint has traditionally been an issue in cases involving sexual assaults against women, this Court has held that the concept of prompt complaint is also applicable to sexual assaults against men because Pennsylvania’s sexual offense provisions are gender neutral. See Commonwealth v. Rodriguez, 343 Pa.Superior Ct. 486, 492 n. 2, 495 A.2d 569, 572 n. 2 (1985).

      . In Commonwealth v. Freeman, supra, this Court stated in dictum, that "evidence of identification of the defendant is beyond the scope of the special rule admitting fresh complaints." Id., 295 Pa.Superior Ct. at 476 n. 3, 441 A.2d 1332 n. 3. This statement, however, is unsupported by our caselaw. As noted above, evidence identifying a defendant has been admitted by this Court under the prompt complaint rule, see Commonwealth v. Krick, supra, and would seem to be part of the collateral evidence that is admissible to identify the occurrance complained of with the offense charged. I also note that in Commonwealth v. Green, supra, our Supreme Court considered the admissibility of a detective’s testimony concerning a prompt complaint by a rape victim. The detective not only testified to the complaint of rape, but also related the complainant’s allegations concerning the time and place of the rape and the identity of the rapists. Before finding the testimony inadmissible on other grounds, the Court noted that there is authority for admitting the particulars of a complaint, such as the assailant’s identity. See id., 295 Pa.Superior Ct. at 328, 409 A.2d at 374 (citing Commonwealth v. Krick for the admissibility of the rapist’s identity).

      . I would also note that the delay in the instant case was less than that in other cases where evidence of a complaint has been held admissible. In Commonwealth v. Krick, supra, we upheld the admission of a father’s testimony that his daughter told him of the defendant's sexual assaults five months after the first attack and one month after the second. In Commonwealth v. Rodriguez, supra, we upheld the admission of a mother’s testimony that her son told her of a sexual assault two days after it had occurred. Here, the victim told his mother of the sexual abuse two days after it occurred and within nine hours of returning home from his father’s house. This nine-hour delay is even less significant when one considers that the victim was a nine-year-old boy who had been put to bed immediately upon his return from his father’s home and that he told his mother of the sexual assault upon awakening the following morning.

      . The victim’s mother also testified with respect to her questioning of her son as follows:
      Q. Did you have any further conversation with him at that time?
      A. Yes, I did. I asked him why and he said — well, the first thing, when he took his bath, I got his pajamas for him and I found blood stains on his underwear. I asked him what happened and he said dad did bad things to him. I said, 'What did he do?” And he said he stuck his penis in his butt.

      . The trial court was troubled by the long lapse of time between the alleged incident early Saturday morning and G.B.’s responses to his mother’s questions on Monday morning. The court stated with respect to his decision to admit the hearsay:

      . The following leading questions were asked of G.B. by the prosecutor concerning his statements to his mother:
      Q. You told your mom?
      A. Yeah.
      Q. Did you tell her that Sunday night, or was it so late that you had to go to bed?

      A. It was so late I had to go to bed.

      Q. Did you have school the next day?
      A. Yeah. (Emphasis added)

      . In Commonwealth v. Haber, supra, the court held that the hearsay testimony was crucial to the Commonwealth's case because the testimony of the children consisted mostly of monosyllabic answers to leading questions, and the children repeatedly stated that they were unable to remember details about what happened. In the instant case, G.B. described the sexual abuse in some detail, and a doctor testified that a subsequent physical examination revealed that the boy could have been sexually abused but the abrasions on his body could have had some other cause.