text:
    Rosenblum v. Stolzenberg, Appellant.

      Practice, C. P. — Affidavit of defense — Defective statement of claim— Pleading.

    Where the declaration is defective, the defendant is not required to file an affidavit of defense; but if he does and the affidavit is itself defective, judgment will not be entered against him. The declaration must be self-sustaining.

      In an action on a building contract the plaintiff is not entitled to judgment in the absence of an averment of full compliance with the terms of the written contract under which he did the work and furnished the materials, in the absence of an averment of waiver by the defendant.
    A declaration for extra -york an¿ materials is not sufficient to call for an affidavit of defense if it does not aver any contract on the part of the defendant to pay for extra work and materials, or that the defendant requested the plaintiff to furnish extras in the line of work and materials, and there is no clear averment that all of the so-called extras were not included in the written contract, nor any averment that the prices charged were reasonable and just, or the usual and ordinary charges for such work and materials.
    Argued April 28, 1908.
    Appeal, No. 173, April T., Í908, by defendant, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 516, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Samuel Rosenblum for use of Union Manufacturing & Supply Company v. S. Stolzenberg.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a building contract and for extra work and materials.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Robert Woods Sutton, with him Watson & Freeman and R. P. Tannehill, for appellant. —
    The general rule in Pennsylvania is that in order to be sufficient to prevent judgment, an affidavit of defense need only be as specific as the statement, and its denials as broad and specific as the averments in the statement against which it is directed: McPherson v. Allegheny National Bank, 96 Pa. 135, 139; Friel v. Custer, 23 Pa. Superior Ct. 466; Deacon v. Smaltz, 10 Pa. Superior Ct. 151; Historical Publishing Co. v. Hartranft, 3 Pa. Superior Ct. 59.

      F. C. McGirr, of Marrón & McGirr, for appellee,
    cited: Mack Paving Co. v. Young, 166 Pa. 267; Pittsburg v. MacConnell, 130 Pa. 463; Erie City v. Butler, 120 Pa. 374.
    July 15, 1908:
   Opinion by

Morrison, J.,

This is an appeal by defendant from" a judgment against him for want of a sufficient affidavit of defense. The learned court below filed no opinion, and, therefore, we do not have the benefit of any reasons in support of the judgment. An examination of the declaration and the affidavit of defense leads us to the conclusion that the case ought to have gone to a jury. The declaration is loosely and defectively drawn, especially as to the claim for extra work. It is so defective as to excuse the defendant from filing any affidavit of defense.

The declaration avers the doing of work and furnishing materials to the amount of $700, under a written contract, except one bath tub amounting to $51.37, which plaintiff admits was not furnished as the contract requires. The declaration avers a credit to the defendant of the latter amount, but no excuse is set up for not furnishing the bath tub in accordance with the contract. The specifications, made a part of the contract, contain the following specific requirements on the part of the plaintiff:

“These specifications are made by the owner, and are all to be approved and work must be done according to rules and regulations and a certificate of final inspection furnished to owner before any payment is made.

“The plumber should figure on all floors or any patching that he may tear out or destroy during the progress of his work. Everything must be replaced by him in first class condition. He is also to haul all dirt away accumulated by his work and leave the building broom clean.

“The plumber is to complete the job in full satisfaction to the sanitary plumbing rules.”

“If any dispute should arise during the progress of said work between the contractor and owner same to be settled by arbitration of three; same to be final, from which there is no appeal.

“We, the undersigned, do hereby agree this day of April, A. D. 1907, to do all the above specified work in a workmanlike manner and complete the same by May 1st. Same to be under a penalty of $25.00 from contractor to owner per day for every day thereafter, and for every day it may be done before the 1st of May the owner is under penalty to pay $5.00 per day to plumber. All above specified work to be done for the sum of-dollars.”

But the declaration does not aver a compliance with the above specifications. The general averment in the declaration that plaintiff “immediately began work under said contract and fully completed the same in the month of May, 1907, with the exception of one bath tub amounting to $51.37,” is denied by the affidavit of defense in as strong language as that used in the declaration in that respect.

The plaintiff is not entitled to judgment in the absence of an averment of full compliance with the terms of the written contract under which he did the work and furnished the materials, in the absence of an averment of waiver by the defendant. We do not think the plaintiff’s declaration for extra work and materials is sufficient to call for an affidavit of defense. It does not aver any contract on the part of the defendant to pay for extra work and materials; it does not even aver that the defendant requested the plaintiff to furnish extras in the line of work and materials; it does not clearly aver that all of the so-called extras were not included in the written contract. The statement of work and materials attached to the declaration and made part of it, is not a copy of a book account; it contains no dates and there is no averment that the defendant agreed to pay for the same nor of any facts rendering him liable to pay therefor, nor that the prices charged are reasonable and just or the usual and ordinary charges for such work and materials.

It is urged in appellee’s argument that the affidavit of defense only denies the extra work charged in the declaration, not denying that the plaintiff furnished the materials. But the statement of items made a part of the declaration, as to the extras, is plainly headed: “Amount of contract as agreed to $700.” Then follows: “Extra work.” The plaintiff ought not to complain that the affidavit of defense only denies the extra work in as much as his bill of items is headed Extra work.”

While the affidaxit of defense is not above criticism, the same may be said of the declaration. The latter is so badly drawn that the affidavit sufficiently denies its averments. YThere the declaration is defective, the defendant is not required to file an affidavit of defense; but if he does and the affidavit is itself defective, judgment will not be entered against him. The declaration must be self-sustaining: Bill Posting Sign Co. v. Jermon, 27 Pa. Superior Ct. 171; Tourison v. Engard, 30 Pa. Superior Ct. 179.

The assignments of error are sustained and the judgment is reversed without prejudice as to a jury trial and procedendo awarded.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Golden, Appellant, v. Golden.

      Divorce — Desertion—Justification.
    The conditions which will justify a wife’s abandonment of her husband are those only which would support a decree of divorce in her favor where she is the libelant.
    Where a husband’s conduct is such that the wife is justified in abandoning him, the husband cannot thereafter obtain a divorce from hi3 wife upon the ground of disertion.
    Argued April 28, 1906.
    Appeal, No. 104, April T., 1908, by plaintiff, from decree of C. P. No. 3, Allegheny Co., May T., 1906, No. 561, refusing divorce in case of William A. Golden v. M. Elizabeth Golden.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce.
    The opinion of the Superior Court states the case.

      Error assigned was decree refusing divorce.

      July 15, 1908:

      Alfred V. D. Walter son, with him Ambrose B. Reid, for appellant.

      A. D. Wilkin, for appellee.
   Per Curiam,

This was an application for divorce a vinculo matrimonii upon the ground of desertion. There is no dispute as to the fact that in April, 1904, the respondent withdrew from the home of the libelant and has since lived separate and apart from him. Nor is there any dispute that this was with the intent to permanently separate from him. The question, therefore, is whether she was justified in so doing, and it is conceded by her counsel that the principle is applicable that the conditions which will justify a wife’s abandonment of her husband are those only which would support a decree of divorce in her favor were she the libelant. The testimony bearing upon this question is in conflict. But after a full consideration of it in the light of the well settled legal principle above referred to, we are led to the conclusion that the preponderance is in favor of the master’s finding, which was approved by the court below, that the libelant’s treatment of the respondent was such as to justify her in separating herself from him.

The decree is affirmed at the cost of the appellant.


author: Beaver, J.,

text:
    Blumberg’s Estate.

      Wills — Legacy—Absolute gift — Cutting down gift.

    A clear gift by will or codicil will not be cut down by subsequent words or codicil, except to the extent which, with equal clearness, is thus indicated.
    Testator gave a legacy of $1,000 to a school “towards establishing a sinking fund, the interest of which shall be'used towards liquidating any debts, or towards the proper support of said school. This bequest may be changed or modified by my executrix hereinafter named, according to circumstances and contingencies that may arise.” The executrix, his wife, was given all of the residue of the estate for her life with remainder to testator’s two children. Held, that the executrix might change or modify the application of the legacy to the school, which was absolute, for 11,000 in cash as provided for in the will, but might not reduce the amount thereof.
    July 15, 1908:
    Argued April 27, 1908.
    Appeal, No. 42, April T., 1908, by Franc R. Blumberg, executrix, from decree of O. C. Allegheny Co., Dec. T., 1906, No. 34, dismissing exceptions to adjudication in Estate of Albert Blumberg, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to adjudication.

      J. M. Shields, with him Sachs & Hirshfield, for appellant,
    cited: Tyson’s Est., 191 Pa. 218.

      A. Leo Weil, of Weil & Thorp, for appellee,
    cited: Patterson’s App., 1 Mona. 388; Sheetz’s App., 82 Pa. 213; Hopkins v. Glunt, 111 Pa. 287; Good v. Fichthorn, 144 Pa. 287; Yost v. Ins. Co., 179 Pa. 381; Teller’s Est., 215 Pa. 263; Erisman v. Directors of the Poor, 47 Pa. 509; Williams’s Appeal, 73 Pa. 249, 284; Severns’s Estate, 211 Pa. 68.
   Opinion by

Beaver, J.,

In the will of Dr. Alfred Blumberg, a prominent practicing physician of Pittsburg, occurs the following bequest: "I give and bequeath the sum of ($1,000.00) one thousand dollars in cash to the Columbian Council School towards establishing a sinking fund, the interest of which shall be used towards liquidating any debts or towards the proper support of said school. This bequest may be changed or modified by my executrix, hereinafter named, according to circumstances and contingencies that may arise.”

Other provisions of the will, indirectly affecting this bequest, are as follows: “The rest of my personal, mixed and real property, situated in the city of Pittsburg, county of Allegheny, state of Pa., or in any other part of the United States of America, I hereby devise and bequeath to my beloved wife, Franc R. Blumberg, of the city of Pittsburg, county of Allegheny, state of Pa., to be used by her and all income advantages derived therefrom as long as she lives and remains under the title of my name, and after her decease the same to be equally divided between our two beloved children, Carrie and Leonard Blumberg, share and share alike, their heirs and assignees forever.

"I do nominate and appoint my said wife, Franc R. Blumberg executrix of my last will and testatment.”

In the settlement of the estate the executrix paid to the beneficiary named in the bequest above mentioned the sum of $100, instead of $1,000, as therein bequeathed, and, upon exceptions to the distribution of the estate, under which the sum of $1,000 as bequeathed was awarded to the claimant therefor, the claim was made that the executrix had the right to reduce the amount of the legacy under the provision that “This bequest may be changed or modified by my executrix hereinafter named according to circumstances and contingencies that may arise.” The court below held that the amount of the bequest — $1,000—could not be reduced by the executrix and that the precatory words “may be changed or modified by my executrix” referred to the application of the legacy “according to circumstances and contingencies that may arise.”

It is significant that the testator makes no specific provision for the disposition of the bequest, in case it should be reduced. The use of the words “ changed or modified ” here by the testator has as much application to the uses and purposes for which the bequest is to be applied as to the amount thereof. It appears that the executrix was a director of the Columbian Council School and was familiar with its needs, and the discretionary use of the bequest would seem, therefore, to have been wisely committed to her. The court below says, in referring to the scope of the power contained in the clause “change or modify,” “certainly testator could not have contemplated a change of objects, because no substitute was provided. Mrs. Blumberg was given power to change and modify, but there is no suggestion that she should have any beneficial interest as a result of the exercise of the power. The bare implication that she would take, in the event of reduction in the amount of the legacy, is inconsistent with the well-settled rule of construction which requires equivalent phrase to reduce an antecedent gift.”

In Teller’s Estate, 215 Pa. 263, which was affirmed on the opinion of Judge Penrose of the orphans’ court of Philadelphia county, in the opinion of the court below, it is said: “It is á canon of interpretation that a clear gift by will or codicil will not be cut down by subsequent words or codicil, except to the extent which, with equal clearness, is thus indicated: Whelen’s Estate, 175 Pa. 23; and here it is conceded that the widow’s right to dispose of the estate, either while she lives of by will taking effect at her death, is not reduced by the codicil.”

In Hopkins v. Glunt et al., 111 Pa. 287, it was held, as stated in the syllabus: “After an unqualified devise by the testator of his property, no precatory words to his devisee can defeat the estate previously granted.” In that case, Mr. Chief Justice Mercur said: “Expressions of a desire or a wish of the testator as to a specific disposition of his property, standing by themselves alone, may constitute a valid devise or bequest thereof. The rule is different when such expressions are used after an absolute disposition of the property has been made. After an unqualified devise by the testator of his property, no precatory words to his devisee can defeat the estate previously granted: Burt v. Herron, 66 Pa. 400; Bowlby v. Thunder, 105 Pa. 173;” Good v. Fichthorn, 144 Pa. 287.

In Heck’s Estate, 170 Pa. 232, which was affirmed on the opinion of the judge of the orphans’ court, it was said in that opinion: “The best that can be said for the fourteenth clause is that it may make the tenth clause doubtful; but under all the authorities since Pennock’s Estate, 20 Pa. 268, this is not enough. 'An absolute gift, especially of personalty, is not to be cut down by a later clause, unless the testator’s intention to modify the gift is unequivocally expressed.’ ”

Our cases to the same effect are very numerous, but there does not seem to be any variation in the rule, as laid down in the cases already cited.

We are of opinion that the construction placed upon the qualifying clause of the bequest by the court below was the correct one. The executrix may change or modify the application of the legacy, which was absolute for $1,000 in cash, as provided for in the will, but may not reduce the amount thereof.

The decree of distribution is, therefore, affirmed and the appeal dismissed, at the costs of the appellant,


author: Pee Cueiam,

text:
    Forst, Appellant, v. Lees.

      Exemption — Debtor’s exemption — Premature claim — Attachment under the Act of March 17, 1869, P. L. 8.
    A claim for debtor’s exemption must be made with such promptness as to occasion no delay to the plaintiff, and not cause him to incur costs that otherwise might be avoided.
    Where money, which needs no appraisement, is claimed under the exemption laws prior to entry of judgment, in an action begun by attachment under the act of 1869, the claim is not premature.
    Argued April 22, 1908.
    Appeal, No. 200, April T., 1908, by plaintiffs, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 683, allowing debtor’s exemption in case of Meyer Forst and Max Wolf, trading as Forst & Wolf, v. Sam Lees, defendant, and Hausman & Wimmer Co. et al., garnishee.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Rule for allowance of debtor’s exemption out of money in the hands of garnishee.
    The opinion of the Superior Court states the case.

      Error assigned was order making absolute rule allowing exemption.

      C. A. O’Brien, of O’Brien & Ashley, for appellants.

      A. Seder, of Alpem & Seder, for appellee.

      July 15, 1908:
   Pee Cueiam,

This is an appeal from an order making absolute a rule on the plaintiffs to show cause why the defendant should not be allowed his exemption out of money in the hands of the garnishee. The Act of March 17,1869, P. L. 8 under which the attachment issued, expressly recognizes the debtor’s right of exemption under the existing laws of this commonwealth. The appellants’ first contention is that the claim should have been disallowed because the defendant had other property in excess of $300 in value. Conceding for the purpose of the case, but without deciding the point, that the contention, if sustained by the evidence, would bar the claim as to the money in the hands of the garnishees, the making absolute of the rule implies a finding by the court in favor of the defendant’s contention upon this disputed question of fact, and a careful examination of the evidence has failed to convince us that there was error in so finding.

The plaintiffs’ further contention is that the demand for the exemption was premature, and in support of this position they cite Cornman’s Appeal, 90 Pa. 254. But that case related to a claim of exemption out of goods and chattels and the ruling must be considered in connection with this distinguishing fact. On the other hand, it was held in Morris v. Shafer, 93 Pa. 489, where money was attached in the hands of a garnishee, that the claim for the exemption should have been disallowed because it was made too late. Impliedly the case is authority for the proposition that where money, which needs no appraisement (Rigby’s Estate, 8 Pa. Superior Ct. 108; Sharp v. Woolslare, 25 Pa. Superior Ct. 251), is claimed under the exemption laws, prior to entry of judgment in an action begun by the attachment under the act of 1869, the claim is not premature. The case is an illustration of the proper application of the general rule that a claim for exemption must be made with such promptness as to occasion no delay to the plaintiff, and not cause him to incur costs that otherwise might be avoided. Upon consideration of the whole case we find no error in the order complained of.

The- order is affirmed at the costs of the appellants.


author: MONTEMURO, Judge:

text:
    519 A.2d 959
    Robert L. PATTON and Esther P. Patton, Appellants, v. MACK TRUCKS, INC., Appellee. Joan M. HAINES, Administratrix of the Estate of Kenneth B. Haines, Appellant, v. MACK TRUCKS, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1986.
    Filed Dec. 30, 1986.

      Ralph D. Samuel, Philadelphia, for appellants (at 878 and 879).
    Marc A. Landry, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

Appellants challenge an order of the Philadelphia Court of Common Pleas granting appellee’s motion for judgment on the pleadings and dismissing appellants’ complaint. Because appellants filed their actions beyond the applicable period of limitations, 13 Pa.C.S.A. § 2725, we affirm.

The case arises from a March 17, 1981 truck accident that killed the driver of the truck, Kenneth B. Haines, and injured a passenger, appellant Robert L. Patton. At the time of the accident, both Mr. Haines and Mr. Patton were acting within the scope of their employment with Chemical Leaman Tank Lines, Inc. Mr. Patton and his wife, appellant Esther P. Patton, instituted an action by writ of summons against the manufacturer of the truck, Mack Trucks, Inc. [Mack], on February 20, 1985. Appellant Joan M. Haines, administratrix of the estate of Mr. Haines, instituted a separate action against Mack on March 12, 1985. In their consolidated complaint, appellants alleged that a defective steering mechanism caused the truck in which Mr. Haines and Mr. Patton were riding to spin out of control. Appellants further alleged that when Mack sold the truck to Chemical Leaman in 1977, it made express and implied warranties, which it breached by failing properly to design and manufacture the truck and its component steering mechanism.

The express warranty upon which appellants base their claim appeared on a Chemical Leaman purchase order form dated May 26, 1977. Chemical Leaman used the multipaged form to purchase the truck that injured Mr. Haines and Mr. Patton. The following warranty language was printed on the bottom of all but the first page: “Seller represents and warrants that all articles and services covered by this purchase order meet or exceed the regulations established and promulgated under the Federal Occupational Safety and Health Law, Public Law 91-596 ... in effect or proposed as of the date of this order.” Appellants contended that the truck failed to meet applicable workplace safety standards. In addition to this alleged breach, appellants claimed that Mack breached implied warranties of merchantability and fitness for the particular purpose, which, unless excluded, apply to all sales of goods, see 13 Pa.C.S.A. §§ 2314-2316. The trial court nonetheless agreed with appellee that the four-year statute of limitations on breach of warranty claims, 13 Pa.C.S.A. 2725, barred appellants’ causes of action. It therefore granted appellee’s motion for judgment on the pleadings. This timely appeal followed.

We must decide whether appellant’s causes of action for breach of warranty accrued in 1977, when Mack delivered the allegedly defective truck to Chemical Leaman, or in 1981, when the accident that injured Mr. Haines and Mr. Patton occurred. This task requires that we construe both the statute of limitations provision of the Commercial Code and the purchase agreement between Mack and Chemical Leaman. The Code provision reads as follows:

(a) General rule. — An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitations to not less than one year but may not extend it.
(b) Accrual of cause of action. — A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

13 Pa.C.S. § 2725(a) and (b) (emphasis added). In the usual case under Section 2725, a cause of action for breach of warranty accrues when the seller tenders delivery to the buyer. An aggrieved party must bring suit within four years of tender regardless of whether he or she knows that a breach has occurred. The last sentence of Subsection 2725(b), however, extends the period of limitations in those few cases that meet the stated twofold test. If (1) the warranty “explicitly extends” to future performance of the goods and (2) discovery of the breach must await future performance, the cause of action accrues when “the breach is or should have been discovered.” We have cautioned that an extension of the usual period “will not be permitted except in those instances in which there is a clear and unambiguous expression of an intent that the warranty shall pertain to future performance.” Ranker v. Skyline Corp., 342 Pa.Super. 510, 515, 493 A.2d 706, 709 (1985).

Appellants contend that the warranties in question “explicitly extended” to future performance of the truck and that neither Mr. Haines nor Mr. Patton could have discovered the breach before the March 17, 1981 accident. Appellants therefore ask us to find that their causes of action accrued in 1981. If we so find, we would have to conclude that the trial court erred when it found appellants actions barred by the four year period of limitations. We address in order appellants’ four arguments in support of their position.

I.

Appellants argue that the grant of judgment on the pleadings precluded jury consideration of certain vaguely-identified “extrinsic facts and parol evidence.” These facts, they argue, would have established that the express warranty printed on the purchase order form “explicitly extended” to future performance of the truck. Appellants incorrectly assume, however, that construction of the warranty necessarily poses a jury question. This court has held that a grant of judgment on the pleadings “may be appropriate in cases that turn upon the construction of a written agreement.” DiAndrea v. Reliance Savings and Loan Ass’n., 310 Pa.Super. 537, 546, 456 A.2d 1066, 1070 (1983). See also Gallo v. J.C. Penney Cas. Ins. Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984). In DiAndrea, the trial court granted judgment on the pleadings based on its interpretation of a loan agreement. We. found that the court had derived its interpretation “from the clear language of the agreement” and that “appellant’s pleadings did not raise any factual disputes regarding the interpretation.” DiAndrea, supra, 310 Pa.Superior Ct. at 547, 456 A.2d at 1071. We therefore affirmed. The case before us demands the same result. The warranty language in question lacked the kind of patent ambiguity that would require resolution by a fact finder. The court on its own could glean the parties’ intent from the “clear language of the agreement.” Although appellants disagree with appellees over the legal effect of the warranty, the words themselves were not “defective, obscure, or insensible.” Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 386, 476 A.2d 1, 5 (1984). Moreover, appellants have not raised in their pleadings any allegations of fact that might establish a latent ambiguity in this otherwise clear language. Nothing in appellant’s complaint, reply to new matter, or answer to motions for judgments on the pleadings contradicts or renders uncertain the trial court’s reading of the warranty. Consequently, as in DiAndrea, “the trial judge was at liberty to decide as a matter of law the determinative question of interpretation.” 310 Pa.Super. at 547, 456 A.2d at 1071.

Appellants nonetheless rely on Gonzalez v. U.S. Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979) to support their contention that the trial court usurped the role of the jury. In Gonzalez, our supreme court held that the trial court erred by not allowing the jury to interpret a complex construction contract. The court concluded that questions of interpretation should go to the trier of fact when interpretation “depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence.” Gonzalez, 484 Pa. at 290-91, 398 A.2d at 1385 (quoting Tentative Draft No. 5 of Restatement (Second) of Contracts § 212(2) (1979)). When interpretation does not depend on extrinsic evidence, however, the court alone must shoulder the task. Id. See also Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983); Community College of Beaver County v. Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977). This “contributes to the stability and predictability of contractual relations” and “provides a method of assuring that like cases will be decided alike.” Gonzalez, 484 Pa. at 290, 398 A.2d at 1385.

We have pointed out already that interpretation of the warranty in this case did not depend on extrinsic evidence. The warranty language was free of any patent or latent ambiguities. The court therefore correctly confined its inquiry to the four corners of the purchase order. See Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982); Rusiski v. Pribonic, 326 Pa.Super. 545, 474 A.2d 624 (1984).

II.

Appellants next contend that even if the trial court could interpret the express warranty as a matter of law and without the aid of a jury, it did so incorrectly in this case. Appellants insist that the trial court rendered the warranty language meaningless when it held that the warranty did not “implicitly extend” to future performance of the truck. They point out that Mack, in effect, warranted to provide Chemical Leaman employees with a workplace that conformed to existing federal safety standards. Mack’s warranty had meaning, according to appellant’s analysis, only if it extended into the future to cover the period during which the truck actually served as a workplace for Chemical Leaman employees. Appellants also insist that because Mr. Haines and Mr. Patton could not possibly have discovered the breach before the March 17, 1981 accident, the warranty necessarily extended to future performance. We disagree with these arguments.

Professors White and Summers have observed that “extension of the normal warranty period does not occur in the usual case, even though all warranties in a sense apply to future performance of goods.” J. White & R. Summer, Uniform Commercial Code § 11-9 (2d ed. 1980). Another expert has reasoned that Section 2725(b) “presumes that all warranties, expressed or implied, relate only to the condition of the goods at the time of sale.” Klinger, The Concept of Warranty Duration: A Tangled Web, 89 Dick. L.Rev. 935, 939 (1985). The drafters of the Commercial Code certainly understood that in most cases a warranty is tested only after the seller has put the goods to their intended use. Nonetheless, they established “tender of delivery” as the point at which the period of limitations begins to run. Actual discovery of the breach is irrelevant in the usual case. This strict rule ensures that the seller will not have to account for its product or wares beyond “the normal commercial record keeping period,” unless it explicitly agrees to do so. 13 Pa.C.S.A. § 2725, Uniform Commercial Code Official Comment. Section 2725 serves the interests of commercial uniformity and practicality even though it might bar some otherwise meritorious breach of warranty actions.

We therefore must reject the argument that a warranty necessarily extends to future performance merely because it contains promises regarding the manner in which the goods will perform after tender of deliver. The same argument applies to nearly all warranties. If we held that the warranty in this case “explicitly extended” to future performance, we would allow the exception to swallow the rule. Commonplace warranties such as those which guarantee the number or quality of widgets a particular machine can produce or the number of pounds a particular truck can haul all would “explicitly extend” to future performance. The drafters of the Code could not have intended this result. As we noted in Ranker, supra 342 Pa.Superior Ct. at 515, 493 A.2d at 709, parties must make a “clear and unambiguous expression” of their intent to extend warranties to cover future performance. This reading of Section 2725 does not render Mack’s warranty “meaningless.” Mack remained open to any suit for breach brought within four years of tender. The drafters of the Code selected the four-year period of exposure “as the most appropriate to modern business practice.” 13 Pa.C.S.A. § 2725, Uniform Commercial Code Official Comments.

We must also reject the related argument that a warranty necessarily extends to future performance when the aggrieved party cannot possibly discover the breach until after tender of delivery. Appellants rely heavily on the reasoning in Perry v. Augustine, 37 Pa.D. & C.2d 416 (Mercer 1965). Perry involved an allegedly defective heating system. The seller tendered delivery of the system in July, but had warranted that it would “be able to heat at 75° inside at a —20° outside temp.” Perry, 37 Pa.D. & C.2d at 416. The court held that this warranty “explicitly extended” to future performance because discovery of a breach “would necessarily have to await winter weather.” Id. at 418. Appellants argue that the same rationale applies to this case. We certainly agree that Mr. Haines and Mr. Patton could not reasonably have ascertained the condition of the steering mechanism before it failed. Nonetheless, Section 2725(b) provides that a cause of action accrues “regardless of the aggrieved party’s lack of knowledge of the breach.” See also Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965). As Judge Aldisert recognized in O’Brien v. Eli Lilly & Co., 668 F.2d 704, 711 (3rd Cir.1981), the Commercial Code “expressly rejects a discovery rule similar to the one that has been developed for personal injury actions.” A cause of action accrues upon discovery of breach only if the warranty “explicitly extends” to future performance. Otherwise, the aggrieved party’s knowledge or ability to know is irrelevant. The Perry rationale is therefore unpersuasive. See J. White & R. Summers, supra at 11-9 (criticizing Perry). We do not venture an opinion on whether the warranty in Perry actually did extend to future performance of the heating system. We reject only the proposition that a warranty necessarily extends to future performance when discovery of a breach must await some prospective event.

III.

Appellants further argue that the trial court, in granting judgment on the pleadings, erroneously assumed that implied warranties of fitness and merchantability can never “explicitly extend” to future performance. Appellants believe they could have proved to a jury that Mack’s implied warranties were explicitly prospective. The trial court, however, never expressly addressed this issue in its opinion. In appellants’ view, the court by its silence necessarily endorsed the proposition that the further performance exception of Section 2725(b) does not apply to implied warranties. We disagree with this interpretation of the trial court’s holding.

Appellants’ pleadings lack any allegations of fact that would place in issue whether Mack’s implied warranties “explicitly extended” to future performance of the truck. Appellants claim that they raised the issue in their “Memorandum of Law in Opposition to Defendant’s Motion for Judgment on the Pleadings.” As we noted earlier, however, when a court hears a motion for judgment on the pleadings, it must confine its inquiry to the pleadings and relevant documents. It cannot consider the contents of briefs and memoranda. See Gallo, supra 328 Pa.Super. at 270, 476 A.2d at 1324; Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981). We haye held that judgment on the pleadings is appropriate when the defendant has raised the statute of limitations in new matter and the pleadings reveal “no good reason for delaying the accrual of plaintiff’s cause of action” beyond the usual accrual date. Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 585, 407 A.2d 394, 396 (1979). Such is the case here. A breach of implied warranty claim, like a breach of express warranty claim, usually accrues upon tender of delivery. Appellants allege nothing in their pleadings that would except their cause of action from the usual rule. Thus, the grant of judgment on the pleadings in this case was proper, regardless of whether implied warranties can, as a general proposition, explicitly extend to future performance.

Appellants, however, cite Klondike Helicopters, Ltd. v. Fairchild Hiller Corp., 334 F.Supp. 890 (N.D.Ill.1971), which, in dicta, appears to support the proposition that implied warranties of merchantability are by their nature explicitly prospective. The court in Klondike Helicopters reached the naked conclusion that “[i]t seems reasonable to expect a warranty of this nature to continue beyond the tender of delivery and extend for the life of the product.” 334 F.Supp. at 893. We decline to embrace the dicta with which appellants bolster their third argument.

The plain language of Section 2725 applies to all warranties, whether expressed or implied. See Williams v. West Penn Power Co., 502 Pa. 557, 467 A.2d 811 (1983) (“we are of the view that the four-year statute of limitations provided in the Code is applicable to all breach of warranty claims brought under the Code”). This means that, in the usual case, breach of implied warranty actions accrue when the seller tenders delivery. In Rufo, supra 407 Pa. at 113, 207 A.2d at 826, our supreme court held that appellant buyer’s action for breach of implied warranties of fitness and merchantability accrued upon tender of delivery. The court without explanation concluded that the future performance exception did not apply in that case. We find no reason, particularly in light of Rufo, for treating express and implied warranties differently under Section 2725. Certainly nothing about the “nature” of implied warranties renders them more likely to apply prospectively, notwithstanding appellants’ assertion to the contrary.

IV.

Appellants last contend that the limitations period on Commercial Code warranty actions by noncontracting third parties should not accrue until discovery of the breach. Mr. Haines and Mr. Patton, appellants argue, were complete strangers to the purchase agreement between Mack and Chemical Leaman. They participated in neither the tender nor the acceptance of the truck in 1977. Unlike Mack and Chemical Leaman, Mr. Haines and Mr. Patton could not possibly have discovered at the time of tender the defect in the truck’s steering mechanism. Therefore, appellants maintain that if we start running the statutory clock against them from tender of delivery, we will preclude them from pursuing their breach of warranty remedies. This, they argue, will effectively restore the privity requirement that our supreme court so thoroughly eradicated in Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974) and Williams v. West Penn Power Co., supra. We disagree.

Appellants do not ask us to apply the statute of limitations for tort claims, 42 Pa.C.S.A. § 5524(2), with its attendant “discovery doctrine.” Our supreme court in Williams, supra, made clear that the four-year Commercial Code period of limitations applies to all breach of warranty claims regardless of the degree to which the aggrieved party is related to the seller or the sale. Appellants therefore acknowledge that the four-year statute applies but ask us to cut out of whole cloth an exception to the usual tender-of-delivery accrual date. This we cannot do.

Section 2725(b), we repeat, renders lack of knowledge irrelevant to the usual case. The cause of action accrues “regardless of the aggrieved party’s lack of knowledge of the breach.” We simply cannot ignore the plain meaning of this language. See 1 Pa.C.S.A. § 1921(b). Moreover, the official commentary to Section 2725 reveals that the drafters had the realities of modern business practice in mind when they penned the Commercial Code’s limitations provisions. In order to avoid the kind of uncertainty and lack of uniformity that would discourage commercial development, they expressly rejected a liberal discovery rule. A seller in the usual case can expect to account for defects in his product at any time within the four years following tender of delivery. To require an accounting beyond this period, in the absence of an explicit extension, would, in the drafters’ view, unduly burden commerce. Thus, nothing in the plain language or purpose of Section 2725 justifies creation of an accrual-on-delivery exception for aggrieved parties who, like Mr. Haines and Mr. Patton, cannot possibly know the condition of goods at the time of tender.

Williams v. West Penn Power Co., supra, upon which appellants rely, does not affect our conclusion. In Williams, appellant urged that the lack of privity between appellant and appellee required application of the tort statute of limitations to appellant’s breach of warranty action. Our supreme court disagreed and adamantly reaffirmed the notion first set forth in Salvador v. Atlantic Steel Boiler Co., supra, that the concept of privity does not belong in breach of warranty cases. In his opinion for a unanimous court, then-Justice Nix concluded that “[t]he extension of liability under the Code to persons not in privity with those in the chain of manufacture and marketing does not validate the application of the tort statute of limitations.” Williams, supra 502 Pa. at 569-70, 467 A.2d at 817. The paramount lesson of Williams is that Section 2725 applies evenhandedly to all parties who bring breach of warranty claims under the Commercial Code. We decline appellants’ invitation to ignore that lesson. We will not treat appellants differently than we would treat a purchaser or any other party in “privity” with Mack Trucks. Our decision denies appellants a remedy in this case, but denial of remedy is the price that all statutes of limitations exact from tardy litigants. Appellants allowed the statute to lapse on any tort claims that might have arisen from the March 17, 1981 accident. They now seek to preserve their breach of warranty claims by asking us to adopt a strained and unnatural reading of Section 2725. While we sympathize with their plight, we are powerless to grant their request.

V.

For the foregoing reasons, we affirm the order of the Philadelphia Court of Common Pleas granting appellee’s motion for judgment on the pleadings and dismissing appellants’ complaint.

Order affirmed.

      . The parties stipulated to the consolidation of the Patton and the Haines actions, which the trial court approved on July 18, 1985. Pa.R.C.P. 2229(a) permits joinder of plaintiffs “who assert any right to relief ... arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the right to relief of all such persons will arise in the action."

      . Appellants appended photocopies of the purchase order to their complaint and marked it "Exhibit A." The photocopying obscured some of the warranty language, but, fortunately, the portions critical to our review remained legible.

      . Absent a pertinent regulation, the Secretary of Labor can enforce the so-called “General Duty Clause" of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1), against employers who maintain unsafe workplaces. See, e.g., Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2nd Cir.1977) (Secretary allowed to amend complaint to allege violation of General Duty Clause when specific regulation not applicable). The General Duty Clause provides that "[e]ach employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(1). Viewing all of appellant’s well-pleaded allegations as true, see Gallo v. J.C. Penney Cas. Ins. Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984), we accept that the parties intended to incorporate this provision into the express warranty.

      . In Metzger, we held that a contract is "ambiguous”
      if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.
      327 Pa.Super. at 386, 476 A.2d at 5 (quoting 8 P.L.E. Contracts § 146 (1971)).

      . Of course, we cannot take into account "allegations" in the pleadings that amount to nothing more than conclusions of law. In determining whether a case is ripe for disposition on the pleadings, we consider only whether unknown or disputed issues of fact are present. See Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981). Appellants in their brief on appeal contend for the first time that evidence of “industry custom" would have raised a factual dispute over whether the parties intended to extend the warranty to cover future performance of the truck. We note, however, that appellants failed to raise this dispute in their pleadings. When the court hears a motion for judgment on the pleadings, it must “confine its consideration to the pleadings and relevant documents.” Gallo, 328 Pa.Super. at 270, 476 A.2d at 1324. See also Del Quadro, 293 Pa.Super. at 176-77, 437 A.2d at 1263.

      . See, for example, the warranty at issue in Conlan v. Ford Motor Co., 5 Pa.D. & C.3d 243 (Phila.1978).

      . We do not hold that this “clear and unambiguous expression" must appear on the face of the agreement. Under 13 Pa.C.S.A. § 2313, the warranty itself need not appear in written form. We therefore find no reason why the "explicit extension” of the warranty should so appear.

      . In O’Brien, appellant claimed that her mother, while pregnant with appellant in 1956, had taken a drug manufactured by appellees. This allegedly cause appellant to contract cancer as a teenager. In Part IV of his opinion, Judge Aldisert concluded that Section 2725 barred appellant’s breach of warranty claim. See O’Brien, 668 F.2d at 711-12. The warranties in question did not "explicitly extend” to future performance even though appellant could not possibly have discovered the breach before she contracted cancer. Although Judge Sloviter filed a concurring opinion and Judge Higginbotham dissented, neither took exception to Part IV of Judge Aldisert’s opinion.

      . For examples of explicitly prospective warranties, see Commissioners of Fire District No. 9 v. American La France, 176 N.J.Super. 566, 424 A.2d 441 (App.Div.1980) (fire truck “guaranteed for one year”); Daughtry v. Jet Aeration Co., 91 Wash.2d 704, 592 P.2d 631 (1979) (sewerage system would provide "no difficulty during the first 2 years of operation”); U.S. Industries, Inc. v. Mitchell, 148 Ga.App. 770, 252 S.E.2d 672 (1979) (poultry cages guaranteed for ten years); Mittasch v. Seal Lock Burial Vault, Inc., 42 A.D.2d 573, 344 N.Y.S.2d 101 (1973) (burial vault warranted to give "satisfactory service at all times”); Rempe v. General Electric Co., 28 Conn.Super. 160, 254 A.2d 577 (1969) (“life-time” warranty on garbage disposal).

      . We note, however, that "courts generally have held that the implied warranties of merchantability and fitness for a particular purpose cannot explicitly relate to future performance." Klinger, supra at 938 (emphasis in original). See also J. White & R. Summers, supra at § 11-9 n. 73 (“implied warranty by nature cannot be explicit”). This, apparently, is the majority view among courts that have considered the issue. See e.g., Holdridge v. Heyer-Schulte Corp. of Santa Barbara, 440 F.Supp. 1088 (S.D.N.Y.1977) ("an implied warranty, by its very nature, cannot explicitly extend to future performance”); Wright v. Cutler-Hammer, Inc., 358 So.2d 444 (Ala. 1978) (“the terms ‘explicit’ and ‘implied’ are contradictory”); General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974) (“it does not seem logical that the Code intended that an implied warranty be explicitly extended to future performance”).

      . The court did not consider whether the future performance exception can ever apply to implied warranties. But see note 10 supra.

      . Of course, the two-year period of limitations for tort claims would not help appellants, even if it were to run from the date of discovery. Appellants did not file their actions within two years of the March 17, 1981 accident.


author: TAMILIA, Judge:

text:
    519 A.2d 967
    Leon F. LYDAY, III v. Bettie S. LYDAY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1986.
    Filed Dec. 30, 1986.

      Kathy M. McCarty, State College, and Bettie S. Lyday, appellant, in propria persona.
    Robert B. Mitinger, Jr., Bellefonte, for appellee.

      Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This appeal follows the entry of a support Order granting the exceptions of appellee, Leon Lyday and ordering Bettie Lyday to pay $50 per week child support.

While we will consider the merits of the appeal, at the outset we determine that the appeal must be quashed.

The basis for quashing this appeal is the failure of appellant to file a notice of appeal within thirty (30) days of notice of the entry of the support Order as required by Pa.R.A.P. 903.

The procedure in a support action is governed by Pa.R. C.P. 1910.11 or 1910.12 which calls for a hearing, the preparation of a report, the filing of exceptions, argument on the exceptions and the entry of a final Order. This case falls under Rule 1910.12 since the hearing officer was an attorney. These procedures were all followed and the final Order was dated and entered on the docket May 13, 1985.

A second docket entry on May 31, 1985 lists multiple Orders and a report of the hearing officer as being filed.

One of these items is the proposed Order prepared by the hearing officer and dated by him September 19, 1984. This Order has the date as May 23, 1984 at the top and is signed by the court and dated May 23, 1985. In addition, above the court’s signature are typed the words As Amended. In substance this Order calls for the payment of $10 per week as support.

Appellant in her brief states the appeal is from the Order dated May 23, 1985. This was improper for this purported Order has no legal significance and is simply a reaffirmance of the Order of May 13, 1985.

The Order of May 13, 1985 was properly entered and as such constituted a final appealable Order. The letter of notice sent by regular mail, dated May 22, 1985, to the respondent, informing her of the Order and providing instructions as to payment procedures, constitutes adequate legal notice. There is no evidence in the record of a petition to modify or terminate this Order under Pa.R.C.P. 1910.19. Thus, the proper action was for appellant to file a notice of appeal by June 21, 1985, that is, within thirty (30) days of May 22, 1985, the mailing date of the Order of May 13, 1985. This was not done.

Appellant’s action in filing a praecipe to enter judgment on June 24, 1985 also has no bearing on our determination. A support Order is a final appealable Order enforceable against the party at the time of entry. No praecipe is required to make it an appealable Order. No post-trial proceedings are permissible from a final Order of support. Pa.R.C.P. 1910.11(c) and 1910.12(g).

[31 An untimely appeal presents a jurisdictional issue and must be quashed. Moring v. Dunne, 342 Pa.Super. 414, 493 A.2d 89 (1985); Murphy v. Brong, 321 Pa.Super. 340, 468 A.2d 509 (1983). The filing of an appeal in the present case on June 24, 1985 was clearly outside the thirty-day limit as the final date upon which the appeal could be filed was June 21, 1985. Even under Pa.R.C.P. 236, failure to give notice does not affect a lien of judgment. Pa.R.C.P. 236(c). The subsequent Order of May 23rd, filed on May 31st, does not alter the finality of the May 13th Order, and failure of the prothonotary to give regular mail notice pursuant to Pa.R.C.P. 236 does not affect the time for filing an appeal from that Order so long as it appears adequate notice was given. Pa.R.C.P. 1910 et seq., Actions for Support provides at section 1910. Scope:

(a) Except as provided by subdivision (b), the rules of this chapter govern all civil actions or proceedings brought in the court of common pleas to enforce a duty of support.

Subsection (b) excludes RURESA, proceedings for indigent relatives, contracts and agreements and temporary support under the Protection From Abuse Act.

There is no specific rule as to notice of entry of a support Order although the usual procedure is to give notice by regular mail from the clerks’ office or the domestic relations office. Contained in this record was such a record of certification sent by the Domestic Relations Office in conformity with the direction of the court and provides verifiable satisfaction of notice requirements. When no rule provides for notice, such notice, as directed by the court, reasonably calculated to provide notice, will suffice. The reason for less stringent requirements in Domestic Relations cases is that, usually, the Order or recommendation is delivered forthwith by the master or judge under Pa.R.C.P. 1910.12(d), and within ten days exceptions must be filed (Pa.R.C.P. 1910.12(e)); if not filed, the court shall review the report and, if approved, enter a final Order pursuant to Pa.R.C.P. 1910.12(f). In most cases, the finding of the hearing officer stands, and upon notification by the Domestic Relations Office of the payment procedure on the confirmed final Order, the procedure is complete. If exceptions are filed, Pa.R.C.P. 1910.12(g) requires that the court hear arguments and enter the appropriate final Order. Obviously, at any point, were notice of the Order not given directly, some form of notification would be required; this can be accomplished, as directed by the court, through notification by the Domestic Relations Office by regular mail. Usually, accompanying this notice is a detailed statement of how, where and when payment must be made and the consequence of nonpayment. This means is required because frequently in nonsupport actions, the parties are uncounseled and the information given to them must be more explicit than simple notification of entry of a judgment. A copy of the dated letter of notification, as a business entry, serves equally as well as an entry of mailing on the prothonotary’s docket as is required in other civil actions by Pa.R.C.P. 236.

If there was indeed a lack of notice aside from extending the appeal time, its only effect would be to place in question when the party required to pay would be compelled to start payment and would be relevant if any attempt was made to enforce the Order. The validity of the Order itself would not be affected. Since the docket shows entry of the order of May 13 on May 13, with direction to the Domestic Relations Office to notify the parties, if notification was made prior to May 24th, this appeal is untimely. In fact, the record establishes that mailing of the May 13th Order by the Domestic Relations Office was accomplished on May 22,1985 and the final date of notice of appeal had to be June 21, 1985. We, therefore, hold that the appeal was untimely filed.

While the appeal must be quashed because it was untimely filed, if we were to review the matter on the merits, it would be necessary to affirm the court below.

Pursuant to the exceptions, the court found: (1) that the appellant had additional income of $3,000 beyond the $10,402 listed on her IRS return, making her gross income greater than indicated; (2) that appellant failed to provide the hearing officer with a complete list of all assets, failing to include $35,000 received from her brother; (3) the hearing officer erred in including $200 per month for psychological counseling as living expenses for appellant, which should be available for child support; (4) that appellant’s interest in Skyline Caverns is one-sixth and not one-sixteenth as found by the hearing officer, and (5) that appellant owned a 1984 automobile and not a 1982 model.

The court also questioned appellant’s business expense, claiming 20,000 miles of travel and business expenses of $3,000 in covering accounts in her employment which were local in nature and within walking distance of her residence.

The court concluded that with the revised findings of fact, the appellant’s income from all sources did in fact provide a sufficient basis for sustaining a support Order of $50 per week without invading her savings and other assets.

It is apparent that the court considered all relevant factors required to be weighed in entering a support Order. See Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). We perceive no error in the court’s evaluation of the facts and the application of the law thereto. This Court has held that the lower court must consider every aspect of a parents’ earnings and financial ability to pay support for a child. These principles are set out below:

It is well established in evaluating a parent’s support obligation the lower courts should consider the parent’s income (or potential earning power if there is a disparity between that figure and actual income) and the full nature and extent of the parent’s property interests and financial resources. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977); and see Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1967); Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974); Shaffer v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430 (1954). The parent’s stock holdings, and other investments, at their market value, are among the factors the lower court should consider. Commonwealth ex rel. ReDavid v. ReDavid, supra. And see Commonwealth ex rel. Gitman v. Gitman, supra; Commonwealth ex rel. Gutzeit v. Gutzeit, 200 Pa.Super. 401, 189 A.2d 324 (1963). Quite naturally, the court should consider a parent’s income, from whatever source; included in income should be monies received from the rental of real estate, but that ‘income’ must reflect actual available financial resources and not the ofttime fictional financial picture which develops as the result of depreciation deductions taken against rental income as permitted by the federal income tax laws. Commonwealth ex rel. ReDavid v. ReDavid, supra; Commonwealth v. Turnblacer, 183 Pa.Super. 41, 128 A.2d 177 (1956); Commonwealth ex rel. Rankin v. Rankin, 170 Pa.Super. 570, 87 A.2d 799 (1952). Otherwise put, ‘cash flow’ ought to be considered and not federally taxed income. See Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 266 Pa.Super. 301, 310 A.2d 672 (1973). The court must also consider the parent’s interest in jointly held assets, but it may not consider the entire value of joint property as the parent’s. Commonwealth ex rel. Gitman v. Gitman, supra.

Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562 at 568-69, 429 A.2d at 668-69 (1981), cited in Curtis v. Curtis, 326 Pa.Super. 40, 473 A.2d 597 (1984).

Many of the principles detailed above were considerations in this case. The standard of review applicable to child support cases does not permit us to reverse the lower court under these circumstances.

[It] is well settled that we cannot disturb a lower court’s order of support absent a clear abuse of discretion or law. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981); Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981). A finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence. The lower court must be upheld on any valid ground. Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980).

Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355-56 (1986).

For the above reasons we quash the appeal.

Appeal quashed.


author: HOFFMAN, Judge: POPOVICH, Judge,

text:
    519 A.2d 971
    COMMONWEALTH of Pennsylvania, Appellant, v. Timothy WILLIAMS (Two Cases).
    Superior Court of Pennsylvania.
    Argued April 10, 1986.
    Filed Dec. 24, 1986.

      Jill R. Cohen, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Donald Bronstein, Assistant Public Defender, Philadelphia, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are consolidated appeals from the order below which arrested judgment and the second order which vacated the order arresting judgment and corrected a clerical error on the bill of information. Appellant, the Commonwealth, contends that the lower court had no authority to issue either order. For the reasons that follow, we vacate the order arresting judgment and affirm the second order to the extent that it corrected a clerical error in the record.

On June 4, 1985, appellee was tried without a jury and found guilty of aggravated assault, recklessly endangering another person, and possessing an instrument of crime. In announcing the verdict, the trial court did not specify whether the aggravated assault was graded as a felony or a misdemeanor. The bill of information, however, reflected a guilty verdict for felony aggravated assault, and the bill was later signed by the trial court. On August 13, 1985, at sentencing, the court was asked to clarify the verdict. The court indicated that it intended to convict appellee of misdemeanor aggravated assault. In an attempt to correct the discrepancy between the intended verdict and that reflected on the bill, the court entered an order arresting judgment on the felony aggravated assault and substituting a conviction for misdemeanor aggravated assault. Appellant timely appealed from this order. On September 12, 1985, the trial court entered a second order which vacated the August 13, 1985 order and struck the notations on the bill of information reflecting entry of a guilty verdict for felony aggravated assault. In its September 12, 1985 order, the court stated that, in announcing the verdict on June 4, 1985, it intended to find appellee guilty of misdemeanor aggravated assault, and that the notations on the bill to the contrary resulted from a clerical error. Appellant timely appealed this order and the two appeals were thereafter consolidated.

Appellant first contends that the trial court had no authority either to arrest judgment via its August 13, 1985 order or to vacate the August 13, 1985 order with its September 12, 1985 order. We agree.

Appellee does not contest that the trial court had no authority to arrest judgment because sufficient evidence was presented to establish the elements of felony aggravated assault. See Brief for Appellee at 5 n. 3. See also Commonwealth v. Parker, 305 Pa.Superior Ct. 516, 523-24, 451 A.2d 767, 770 (1982) (in considering motion in arrest of judgment, trial court is limited to determination of absence or presence of that quantum of evidence necessary to establish elements of crime). Moreover, the trial court had no power to vacate the arrest of judgment because appellant took an appeal from the August 13, 1985 order. See 42 Pa.C.S.A. § 5505 (court may modify or rescind order within thirty days if no appeal has been taken or allowed). The appeal having been taken, however, the validity of the August 13, 1985 order is properly before this Court. We conclude that the trial court had no power to arrest judgment and, accordingly, vacate the order of August 13, 1985.

Appellant next contends that the trial court had no power to issue its September 12, 1985 order, to the extent that it attempted to correct a clerical error in the record. In support of this contention, appellant maintains that (1) there is no statute or rule of appellate procedure that justifies the court’s action; (2) there is no evidence to indicate that the trial court intended to convict appellee of anything but felony aggravated assault; and (3) there is no evidence that an error was made in recording the original verdict. Appellant concludes that the court’s order, rather than an attempt to correct a clerical error, was no more than a reevaluation of the intended verdict and an attempt to alter it. We disagree.

A court has no authority to change a previously recorded guilty verdict if the change is based on a post-verdict factual redetermination. Commonwealth v. Parker, 305 Pa.Superior Ct. 516, 521-22, 451 A.2d 767, 769 (1982). It is well-settled, however, that a court possesses the inherent power to correct clerical errors appearing either in the record or in its orders. Commonwealth v. Cole, 437 Pa. 288, 293, 263 A.2d 339, 341 (1970); Commonwealth v. McDonald, 285 Pa.Superior Ct. 534, 537, 428 A.2d 174, 175 (1981). Moreover, the power to correct errors extends to improperly recorded verdicts; thus, a court may correct a recorded verdict if the verdict does not reflect the obvious intention of the trier of fact. Commonwealth v. Huett, 462 Pa. 363, 368, 341 A.2d 122, 124 (1975); Commonwealth v. Allen, 287 Pa.Superior Ct. 88, 99, 429 A.2d 1113, 1118 (1981). Under Pennsylvania’s Rules of Appellate Procedure, the trial court retains its power to correct such errors even after an appeal has been taken:

If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.

Pa.R.A.P, 1926 (emphasis added).

Here, upon review of the record, we are satisfied that the listing of appellee’s conviction as felony aggravated assault on the bill of information resulted from a clerical error and that the trial court had the power to correct that error. In announcing its verdict, the court stated, “I find you guilty of aggravated assault, assault with a deadly weapon, possession of instrument of crime, generally, and recklessly endangering.” N.T. June 4, 1985 at 100. The court did not specify the grading for the aggravated assault conviction. At sentencing, when asked to clarify the verdict, the court indicated that its intention was to convict appellee of misdemeanor aggravated assault. N.T. August 13, 1985 at 5. In explaining the verdict, the court noted that “it was one of these emotional situations in which he did very serious injury. I don’t think there was the intent to do the kind of injury that actually occurred, and therefore, I will grade this as an M-l____” Id. This clarifying statement went right to the heart of the distinction between felony and misdemeanor aggravated assault: i.e., the presence or absence of “circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). The court then attempted to correct the improperly recorded verdict, first by arresting judgment, and second by issuing an order correcting the clerical error on the bill of information to reflect a guilty verdict for aggravated assault as a misdemeanor rather than a felony. There is no evidence indicating that the court changed the verdict based on a factual redetermination. Instead, as the court noted in its opinion, the confusion resulted from the conviction improperly being noted as a felony on the bill of information. Lower Court Opinion at 2. The trial court explained that this notation “apparently had been entered by a court clerk who assumed that there had been an F-2 adjudication.” Id. We have no reason to disbelieve the trial court’s explanation that the discrepancy between the verdict intended and the verdict recorded resulted from this clerical error. Thus, we find that the court was not changing the verdict, as appellant alleges, but merely correcting the clerical error in the record to insure that appellee was not mistakenly convicted of a more serious offense. We conclude that the trial court intended to convict appellee of aggravated assault graded as a misdemeanor, that a clerical error resulted in the verdict being noted as a felony on the bill of information, and that the court’s September 12, 1985 order fell within the power of a court to correct a verdict to conform to the intention of the trier of fact. See Commonwealth v. Huett, supra.

For the foregoing reasons, we vacate the order arresting judgment and affirm the second order to the extent that it corrected a clerical error on the bill of information to reflect a conviction for aggravated assault as a misdemeanor of the first degree.

The order of August 13, 1985 is hereby vacated. The order of September 12, 1985 is vacated to the extent that it vacated the order of August 13, 1985, and is affirmed to the extent that it corrected the clerical error on the bill of information.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

At sentencing, the court arrested judgment because of its erroneously entered verdict of guilty for (felony) aggravated assault and entered instead the intended verdict of guilty for misdemeanor aggravated assault. The Commonwealth took an appeal from the August 13,1985 order doing so.

The Majority concludes that the court below had no authority to arrest judgment and, therefore, vacates the August 13 order.

Initially, I would like to give some discussion to the appealability of the order. Under United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the United States Supreme Court had occasion to discuss in detail in what instances should the government be permitted to appeal an order or judgment favorable to the defendant.

In Wilson, the defendant had been convicted by a jury of converting union funds, but on post-verdict motions the District Court dismissed the indictment. The Court ruled that the delay between the offense and the indictment had prejudiced the defendant, and that dismissal was called for under a decision of the United States Supreme Court.

On certiorari, the United States Supreme Court addressed the right of the government to appeal, and, after concluding that such a right existed, reversed the District Court’s ruling. In the course of doing so, it wrote:

A system permitting review of all claimed legal errors would have symmetry to recommend it and would avoid the release of some defendants who have benefited from instructions or evidentiary rulings that are unduly favorable to them. But we have rejected this position in the past, and we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal. Granting the Government such broad appeal rights would allow the prosecutor to seek to persuade a second trier of fact of the defendant’s guilt after having failed with the first; it would permit him to re-examine the weaknesses in his first presentation in order to strengthen the second; and it would disserve the defendant’s legitimate interest in the finality of a verdict of acquittal. These interests, however, do not apply in the case of a postverdict ruling of law by a trial judge. Correction of an error of law at that stage would not grant the prosecutor a new trial or subject the defendant to the harassment traditionally associated with multiple prosecutions. We therefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.

420 U.S. at 352-53, 95 S.Ct. 1013 (Emphasis added; footnote omitted).

Applying these precepts to the present case is a relatively straightforward task. The trial judge found the defendant guilty of (felony) aggravated assault. The ruling was arrested and a verdict of guilty of misdemeanor aggravated assault was entered in its stead. The Government’s appeal would not subject the defendant to a second trial at the prosecution’s behest. If the defendant prevails on appeal, the matter will become final, and the Government will not be permitted to bring a second prosecution against him for the same offense. If he loses, the case will result in a reinstatement of the initial verdict. Id. As a result, the appeal from the August 13 order is properly before us for review given the question of law raised. See Commonwealth v. Rawls, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965).

I am not as quick to conclude, as the Majority does without discussion, that “the trial court had no power to arrest judgment” by its order of August 13.

To start with, it is well-settled in this Commonwealth that “[ejvery court of record has the power to amend its records to make them conform to the facts.” Mid-City Bank & Trust Co. v. Myers et al., 343 Pa. 465, 471, 23 A.2d 420, 424 (1942). (Citations omitted). Accord Commonwealth v. Smith, 209 Pa.Super. 487, 229 A.2d 18 (1967). This is true even in criminal cases. Commonwealth v. Liscinsky, 195 Pa.Super. 183, 171 A.2d 560 (1961).

An example of a court’s inherent power to correct errors on its records is Commonwealth v. Meyer, 169 Pa.Super. 40, 82 A.2d 298 (1951).

In Meyer, a jury found the defendant guilty of aggravated assault and battery. Post-verdict motions were withdrawn and the defendant appeared for sentencing pleading leniency. He also presented evidence of an agreement with the victim to pay the sum of $2,500 in settlement of a civil suit for damages. All parties and counsel concerned were in accord that a jail term should not be imposed.

Based on the considerations mentioned, the court orally from the bench placed the defendant on probation conditioned upon the payment of a set sum of money to the county ($500) together with the costs in the case.

In entering the order of the court on the docket, the clerk of court “erroneously and without authority included the payment of $2,500 ‘to the victim’ as ‘the sentence of the court’.” 169 Pa.Super. at 42, 82 A.2d at 300 (Emphasis in original). No sentence had yet been issued, and the payment of $2,500 remained the obligation of the defendant based on an agreement with the victim and not because of any sentence of the court.

The error was not brought to the court’s attention until seventeen (17) months had elapsed. Nonetheless, the court substituted the original order with a corrected order suspending sentence, placing the defendant on probation and conditioning release upon the payment of $500 to the county-

Four (4) months thereafter, upon learning that the defendant had failed to perform his agreement with the victim, the corrected order was vacated and the defendant was imprisoned. On appeal, the defendant assailed the court’s vacation of the corrected order. In affirming the actions of the court below, because of the defendant’s misrepresentation of his intention or state of mind as to being penitent and therefore unworthy of probation, the appellate court touched on the issue before this Court concerning the ability of a court to rectify an error of record. It was stated this way:

The court clearly had the power to correct the clerical errors in the docket entry of the oral order of the court, suspending sentence and placing the defendant on probation. If an entry upon the records of the court is inaccurate it will be corrected when called to the court’s attention “to the end that it may speak the truth.” Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 762, 80 L.Ed. 1283. The law of this State conforms with the general rule that such clerical errors may be corrected by amendment even in a criminal case, Sharff v. Commonwealth, 2 Bin. 513; the order in the instant case, which merely made the record conform to the facts, clearly was a proper exercise of the power of the court. Commonwealth v. Silcox, 161 Pa. 484, 496, 29 A. 105. Instantly, as in Meyer, the clerk had entered an erroneous

order on the record. The fact that in Meyer it was on the docket, whereas at bar it was on the official bills of information is of no moment. The essence of inquiry is the same, i.e., the scope of the court’s power to correct errors of record wherever they may surface. See 10 P.L.E. Courts § 89.

It is uncontested that the trial court, at the time set for sentencing, acknowledged that its verdict announcing the defendant guilty of aggravated assault (generally) on June 4, 1985, which was thereafter transposed to the bills of information by the clerk as a felony-two conviction and signed by the court, was not a true reflection of its intention as a jurist. Compare Commonwealth v. Minoff, 363 Pa. 287, 298, 69 A.2d 145, 151 (1949) (trier-of-facts intentions clear); Commonwealth v. Cohan, 177 Pa.Super. 532, 546, 111 A.2d 182, 188 (1955) (semble). This doubt as to the intent of the trier-of-fact, when documented in a general finding of guilty of aggravated assault, cannot be gainsaid to work a hardship upon the defendant since his sentence could not be imposed in accordance with the verdict as entered. The reason is quite simple, i.e., the felony and misdemeanor grades of the offense charged carry varying sentences depending upon the degree of the guilt involved.

Thus, it was incumbent upon the court to clarify and correct the record as to the exact verdict, in terms of the degree of guilt, it intended to enter at the conclusion of the trial. Cf. Commonwealth v. Craig, 471 Pa. 310, 313, 370 A.2d 317, 319 (1977) (“... it should be noted that the court acted properly when it returned the jury for a determination of degree of guilt. To correct an error of substance in a verdict prior to recording, the court may send the jury back with additional instructions for further deliberation.” (Citations omitted)); 10A P.L.E. Criminal Law § 756. A matter (a question of mistake) which was a proper subject for the court below to decide. See Commonwealth ex rel. Paylor v. Claudy, 173 Pa.Super. 336, 342, 98 A.2d 468, 470 (1953); Commonwealth v. Mount, 172 Pa.Super. 258, 262, 93 A.2d 887, 888 (1953).

The point in the judicial process at which the correction occurred was proper since such action can occur even beyond the term of the court (see Liscinsky, supra), with the exceptions thereto not herein applicable because, for example, no appeal had been taken from the August 13 order. See 42 Pa.C.S. § 5505. None could have been taken since no judgment of sentence had yet been issued. Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244 (1951) (the judgment in a criminal case is the sentence and not the conviction; final judgment in a criminal case means sentence). The August 13 order merely altered the verdict to correspond with the true intention of the jurist, which was inadvertently distorted with the transcription of the verdict onto the bills of information by the clerk of the trial court. I find such action to have been imminently proper under settled case law. See 10 P.L.E. Courts § 89 (Collecting cases).

The fact that the remedial measure occurred at the time set for sentencing (this being the first occasion it was brought to the court’s attention), and took the form of an arrest of judgment, in no way detracts from the legitimacy of the course pursued. Cf. Commonwealth v. Blum, 210 Pa.Super. 529, 534, 233 A.2d 613, 615 (1967) (“In Pennsylvania motions in arrest of judgment or motion for a new trial should be disposed of before sentencing or in the course of sentencing.” (Citation omitted)).

The conduct of the court below was in accordance with its inherent power to remedy any inadvertance or omission in order that the record may conform to the actual facts. Commonwealth v. Burdell, 176 Pa.Super. 219, 229, 107 A.2d 739, 744 (1954), rev’d on other grounds, 380 Pa. 43, 110 A.2d 193 (1955). I offer that this is what transpired with the court’s issuance of the August 13 order.

Most interestingly, we have the court, who sat as the trier-of-fact, telling us that the recordation of the verdict by its clerk was a mistake. Since it is the duty of the court to see that the record is absolute verity as to the facts as they took place, I would hold that the August 13 order arresting judgment by the court — in actuality, to rectify the record— was proper as an exercise of its supervisory powers with regard to its records. Id. Further, neither the Majority Opinion nor the Commonwealth contends that the correction ordered by the court was not in conformity with the facts.

I find, concluding that the court below acted properly as to its August 13 order, the actions of both the Commonwealth and the court below in pursuing the subject further after the August 13 order had been appealed to be ultra vires.

As this Court has recently stated in Commonwealth v. Burkett, 352 Pa.Super. 350, 356, 507 A.2d 1266, 1269 (1986):

Generally, in our judicial scheme of civil and criminal justice, a trial court can no longer proceed further in a matter “after an appeal is taken”. Pa.R.App.P. 1701(a). This precept has its roots in common law, as exemplified by the remarks in Gilbert v. Lebanon Valley Street Railway Co., 303 Pa. 213, 218, 154 A. 302, 304 (1931) that a court of first instance was without jurisdiction to proceed with a cause after the record had been removed to an appellate court. This rule still applies in the absence of a statute providing otherwise. See, e.g., Hodge v. MeBee Co., 429 Pa. 585, 590 n. 1, 240 A.2d 818, 821, n. 1 (1968); Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965); Sowers Estate, 383 Pa. 566, 573-574, 119 A.2d 60, 64 (1956); Harwood v. Bruhn, 313 Pa. 337, 341-342, 170 A. 144-145 (1934); Ewing v. Thompson, 43 Pa. 372, 376-377 (1862).
In Pennsylvania, Rule 1701(a) curtails the authority of a trial court upon the perfection of an appeal.

Accord 10A P.L.E. Criminal Law § 900.

Therefore, based on the logic of Burkett, the actions of the Commonwealth and the court below following the appeal of the August 13 order are a nullity. Thus, in contradistinction to the position taken by the Majority, I would affirm the order of August 13 and vacate the September 12 order and subsequent appeal taken therefrom.

      . 18 Pa.C.S.A. § 2702 provides in relevant part:
      (a) Offense defined. — A person is guilty of aggravated assault if he:

        (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life;
      (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;
      (b) Grading. — Aggravated assault under subsection (a)(1) ... is a felony of the second degree. Aggravated assault under subsection (a) ... (4) ... is a misdemeanor of the first degree.

        Id.

      . Felony of the second degree carries a sentence of not more than ten (10) years. 18 Pa.C.S. § 1103(2)(a).
      Misdemeanor of the first degree carries a sentence of not more than five (5) years. 18 Pa.C.S. § 1104(1).


text:
    519 A.2d 978
    In the Interest of Marlow CRAWFORD. Appeal of Marlow CRAWFORD.
    Superior Court of Pennsylvania.
    Submitted July 7, 1986.
    Filed Jan. 5, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and ROBERTS, JJ.
   TAMILIA, Judge:

This appeal was taken from the Order of the trial court in a juvenile proceeding during which the appellant was held in contempt for failure to appear at a hearing scheduled for January 6, 1986. Marlow Crawford was arrested on January 4, 1986 for burglary, attempted theft, criminal trespass and criminal conspiracy on a Juvenile Petition. He was released by the Intake Office and by subpeona, handed to the accompanying adult, ordered to appear on January 6, 1986 for a detention hearing; he failed to do so.

A bench warrant was issued and on January 9, 1986, pursuant to the warrant, he was brought before the court, with his mother, for a counseled hearing on the warrant. At that hearing, before the Honorable Mitchell Lipschutz, he was held in contempt and committed to the Youth Study Center to wait the next scheduled hearing on January 16, 1986. He was subsequently released on January 14 pursuant to an Order by the Honorable Mary Rose Fonte Cunningham.

Appellant alleges that:

1. The Juvenile Court judge lacked authority under the Juvenile Act to punish the appellant and commit him to a secure facility for “criminal contempt” based on his failure to appear at the initial listing of his case.

2. The evidence of intentional or willful refusal to obey lawful process of the court was insufficient to justify the citation of appellant for summary criminal attempt.

3. The court improperly placed the burden of proof upon the juvenile to prove his innocence of the charge of criminal contempt, and thereby violated appellant’s federal and state constitutional rights to due process of law.

4. The court improperly interrogated the juvenile without giving him notice that his answers might subject him to citation for summary criminal contempt, and thereby violated his federal and state constitutional rights to due process of law and against self-incrimination.

5. The court below erred by holding the appellant in summary criminal contempt and imposing a sentence of imprisonment without first providing the appellant with any notice of the charge where the alleged act of contempt was his failure to appear at a prior listing before another judge.

We will deal with these issues seriatim.

The contention that the Juvenile Court Judge acted “ultra vires” and lacked authority under the Juvenile Act to punish the appellant and to commit him to a secure facility (detention center) for contempt is meritless. A juvenile court judge is not stripped of his inherent powers to perform the duties of his office and to compel obedience to his lawful orders by the Juvenile Act. The Judicial Code, at 42 Pa.C.S.A. § 323 Powers, provides:

§ 323. Powers

Every court shall have power to issue, under its judicial seal, every lawful writ and process necessary or suitable for the exercise of its jurisdiction and for the enforcement of any order which it may make and all legal and equitable powers required for or incidental to the exercise of its jurisdiction, and, except as otherwise prescribed by general rules, every court shall have power to make such rules and orders of court as the interest of justice or the business of the court may require.

The court has the power and the right to issue bench warrants to compel the appearance of a juvenile respondent in a court case. With that authority goes the power to punish for willful refusal to comply. Section 323, supra. The right to issue a warrant pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6335(e) Warrant of arrest, carries with it the authority of the court to hold the child when there appeared to be a willful failure to comply with the subpeona, and the evidence indicated lack of responsible supervision by adults that would assure future compliance. To hold otherwise would render the court powerless and the procedures for achieving a “program of supervision, care and rehabilitation” meaningless.

While the court here found the child to be in contempt for failure to attend the hearing, and while we hold it is properly within the inherent and statutory power of the court to do so, (section 323, supra) irrespective of the Juvenile Act, we believe that detention was proper and incidental to appropriate action under the Juvenile Act § 6331.

§ 6331. Release from detention or commencement of proceedings

If a child is brought before the court or delivered to a detention or shelter care facility designated by the court, the intake or other authorized officer of the court shall immediately make an investigation and release the child unless it appears that his detention or shelter care is warranted or required under section 6325 (relating to detention of child). The release of the child shall not prevent the subsequent filing of a petition as provided in this chapter. If he is not so released, a petition shall be promtly made and presented to the court within 24 hours or the next court business day of the admission of the child to detention or shelter care. (Emphasis added)

and

§ 6325. Detention of child

A child taken into custody shall not be detained or placed in shelter care prior to the hearing on the petition unless his detention or care is required to protect the person or property of others or of the child or because the child may abscond or be removed from the jurisdiction of the court or because he has no parent, guardian, or custodian or other person able to provide supervision and care for him and return him to the court when required, or an order for his detention or shelter care has been made by the court pursuant to this chapter. (Emphasis added)

When the appellant was released pursuant to section 6331 to return at a stated time for a detention hearing, his failure to appear at that time properly called for issuance of a warrant pursuant to section 6335(c). Upon appearance before the court pursuant to that warrant, his reasons for nonappearance and the testimony by his mother exhibited substantial reasons for the court to believe he would not appear for the subsequently scheduled detention hearing.

It would appear that the hearing before Judge Lipschutz was not a detention hearing pursuant to section 6332 Informal hearing, but simply a hearing on the warrant. The warrant hearing had the effect of returning the status of the case to the posture it was at the time of initial detention, and pursuant to section 6331 which applies to that stage, the inquiry must be made if detention is warranted. In this inquiry, reference is made to the standard enunciated in section 6325 Detention of a child. Under that standard, detention is permitted “because he has no parent, guardian or custodian or other person able to provide supervision and care for him and return him to the court when required, or an order for his detention or shelter care has been made by the court pursuant to this chapter.” 42 Pa.C.S.A. § 6325 (Emphasis added). The court found the testimony supports the conclusion that the child willfully failed to appear and the mother either didn’t know or didn’t respond to notice to appear. We agree and, therefore, reject appellant’s second point. Under these circumstances, detention was appropriate. A finding of contempt was not necessary to the detention of the child and it was handed down only after counsel for the child indicated to the court that the child could be held pursuant to the Juvenile Act for only seventy-two (72) hours before giving him a probable cause hearing.

Had the court gone into the nature of the delinquent petition, determined probable cause that the complained act was committed and informed the appellant of his rights, and then made supportable findings on the basis of that hearing that the child should be detained beyond seventy-two (72) hours, there would be no error. Since this was not the case, no more than seventy-two (72) hours of detention could be justified unless the child was committed for contempt.

While finding the trial court had the power to punish for criminal contempt, we do not need to determine if the procedure he employed and the record support a finding of contempt and subsequent detention Order for seven days (January 9 — January 16) and, therefore, do not consider appellant’s points 3-5.

Appellant would have us pursue this aspect of the case on the theory that In the Interest of Tasseing A., 281 Pa.Super. 400, 422 A.2d 530 (1980) strips the Juvenile Court of any power to deal with contempt behavior by juveniles. We agree with the Commonwealth’s position that appellant’s reliance on Tasseing is misplaced. That case involved a dependent child placed in detention for refusal to comply with court orders to remain in shelter. No specific authority is provided in the Juvenile Act to confine a dependent child who is a runaway, even if the running is in defiance to the court order. That case and Pennsylvania’s treatment of runaways was based on mandates of Federal Legislation, Juvenile Justice and Delinquency Prevention Act of 1974, P.L. 93415, enacted September 6, 1975, and policy requirements centering about federal funding prevented detention at that time. Since then, the Federal Act has been amended to permit detention of status offenders (dependent children) where a valid court order has been violated. Tasseing held that a dependent child could not be placed in detention even if he was in contempt of court. The dissent in Tasseing by Hester, J. would have permitted detention of the dependent child, and the concurrence by Cavanaugh, J., which held Tasseing’s behavior was criminal contempt but the law did not apply to dependent children, restricts any application of that case beyond dependent children. Most directly, in the delinquency context, which is the nature of the case sub judice, a delinquent child can be detained without question if a child refuses to appear or parents of the child are failing in supervision and would fail to have the child appear when required by the court and a warrant for arrest and detention are appropriate means that may be taken to assure the child’s presence at the hearing.

A delinquent child is not insulated from orderly process of the law because of minority, particularly, as here, when he has been charged with offenses which, if committeii by an adult, would call for sentences of up to twenty (20) years in prison. Protecting the child from consequences of a criminal record and focusing on rehabilitation instead of punishment is not an invitation to trampling the law and treating the court with disdain. The court must be firm and resolute if it is to have credibility with juveniles who are out of control and violating the law.

We intend to go no further with our evaluation of the contempt aspect of this case as the subsequent action of Judge Cunningham, in releasing the appellant on June 14, 1986, and the expiration of the order on June 16, 1986, renders it unreviewable.

We do not find this to be a case which requires review of an issue normally moot, due to extraordinary circumstances such as Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). There, the contempt concerned a director of children’s services who allegedly failed to provide treatment to a deprived child who reached majority prior to the argument on appeal. There the case centered about whether the court could impose a duty to provide treatment and enforce it through contempt powers. It was an issue that dealt with civil contempt as opposed to criminal contempt and had implications to the child welfare system far beyond that case. Here, there is no question of the court’s power to hold a juvenile in contempt and the only issue is one of procedure and timeliness of the appeal. The appellant had procedural means to preserve this matter for appeal, which he failed to take, so we must consider the matter waived.

The issue remains as to whether the child was properly detained beyond the seventy-two (72) hours permitted, pending a probable cause hearing. A probable cause hearing should have been held on January 12, 1986; since this was a Sunday, January 13 would have sufficed. The hearing by Judge Cunningham was actually held on January 14, 1986. She could have detained him for additional periods of time of up to twenty (20) days from the filing of a petition pursuant to section 6335 of the Juvenile Act. A juvenile held beyond the period of time provided by statute can petition the court for immediate release (which he did) and if not released, can petition the Superior Court, In re Kerr, 333 Pa.Super. 67, 481 A.2d 1225 (1984). That case also provided the court did not lose jurisdiction over the case simply because a juvenile was held beyond the statutory period. Since the appellant was released within twenty-four (24) hours of the time when he was required to have his probable cause hearing, under the circumstances, the system worked expeditiously to correct any improprieties and there is no relief which is available on appeal.

We, therefore, quash the appeal for mootness.

Jurisdiction relinquished.

      . 42 Pa.C.S.A.
      § 6332. Informal hearing
      (a) General rule. — An informal hearing shall be held promptly by the court or master and not later than 72 hours after the child is placed in detention or shelter care to determine whether his detention or shelter care is required under section 6325 (relating to detention of child) and if the child is alleged to be delinquent, that probable cause exists that the child has committed a delinquent act. Reasonable notice thereof, either oral or written, stating the time, place, and purpose of the hearing shall be given to the child and if they can be found, to his parents, guardian, or other custodian. Prior to the commencement of the hearing the court or master shall inform the parties of their right to counsel and to appointed counsel if they are needy persons, and of the right of the child to remain silent with respect to any allegations of delinquency.