author: POPOVICH, Judge: BROSKY, Judge,

text:
    527 A.2d 550
    John MARZULLO, Jr. v. STOP-N-GO FOOD STORES OF PITTSBURGH, INC., a Pennsylvania Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1986.
    Filed April 13, 1987.
    Reargument Denied June 24, 1987.
    Petition for Allowance of Appeal Denied Dec. 1,1987.

      Samuel P. Gerace, Pittsburgh, for appellant.
    Barry M. Simpson, Pittsburgh, for appellee.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which denied relief to appellant-defendant, Stop-N-Go Food Stores of Pittsburgh, Inc., after the filing of a petition to strike and/or open a default judgment. We affirm.

Appellant raises the following issues: (1) whether thé default judgment was entered improperly because appellee-plaintiff, John Marzullo, Jr., failed to file a notice of intent to take a default judgment; (2) whether appellant is entitled to reopen the judgment because it acted promptly and had a reasonable excuse and a complete defense to the appellee’s claim; and (3) whether the default judgment was entered improperly for $14,575.27 because the appellee’s claim was unliquidated.

We have reviewed appellant’s contention and conclude that appellant is not entitled to relief. The third issue has been waived because appellant failed to present this theory at the trial level. Pa.R.A.P. 302(a). The other two issues must also be rejected.

On June 11,1985, appellee filed a summons in civil action against his employer, Stop-N-Go Food Stores. On July 1, 1985, appellant filed a rule upon the appellee to file a complaint, and a complaint was filed five weeks later. On August 22, 1985, preliminary objections were filed on the basis that appellee failed to state a cause of action upon which relief could be granted. Appellee contended that his employer unilaterally changed the compensation program without additional consideration and breached the appellee’s management contract.

These objections were granted in part and denied in part, and appellee was directed to file a more definite complaint. On October 16th, appellee filed an amended complaint. On November 15th, appellant filed a second set of preliminary objections to the amended complaint; these were dismissed without prejudice on December 6, 1985.

On January 13, 1986, appellant filed a motion for reconsideration, which was denied on January 24th. On February 18th a default judgment was entered. Appellant’s petitions to strike and/or open judgment were denied, and this appeal followed.

Although appellant concedes the fact that an answer was not filed timely, appellant contends that appellee was required to file a notice of intent to enter a default judgment pursuant to Pa.R.C.P. 237.1. We do not agree.

Pa.R.C.P. 237.1(a) states:

Rule 237.1. Notice of Praecipe for Entry of Default Judgment

(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
(b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

We have said that “[wjhether to strike a default judgment in an assumpsit action is left to the trial court, whose decision will not be disturbed absent a manifest abuse of discretion or an error of law. Paules v. Sminkey, 290 Pa.Super.Ct. 223, 227, 434 A.2d 724, 726 (1981).” Giallorenzo v. American Druggists Insurance Company, 301 Pa.Super. 294, 297, 447 A.2d 974, 975 (1982). We also recognize that “[jjudgments are stricken only for irregularity on the record. Once regularly entered, they can be opened only upon equitable principles.” Estate of Blanche B. Levy By Levy v. CNA Insurance Company, 338 Pa.Super. 191, 198, 487 A.2d 919, 923 (1985). (Emphasis in original) (Citations omitted).

Thus, our concern is whether the record as filed by appellee “at entry is adequate to sustain the judgment, or is defective in some way.” Parliament Industries, Inc. v. William H. Vaughan & Co., Inc., 501 Pa. 1, 8, 459 A.2d 720, 724 (1983) (citations omitted). In this case, because the record is not defective, we affirm the action of the trial court.

Our review of the record reveals that the parties executed a written agreement to file “an Answer or otherwise plead” by February 3, 1986. In a letter dated January 7, 1986, appellant’s counsel forwarded a letter to appellee’s counsel which confirmed the existence of a written agreement requiring appellant to respond to appellee’s amended complaint. This letter stated the following:

“This will confirm an extension of time of thirty (30) days from January 3, 1986 for Defendant to file an Answer or otherwise plead to Plaintiffs Complaint____” Record at No. 22, Exhibit C. (Emphasis added).

Appellant did not file an answer to the complaint; however, within the thirty day period appellant filed a “MOTION FOR RECONSIDERATION” on January 13, 1986, to the trial court’s order which denied appellant’s preliminary objections for the second time.

On January 24, 1986, the same date that the motion for reconsideration was denied, appellee’s counsel drafted a letter which consisted of the following language:

January 24, 1986
Nicholas A. Pasciullo, Esquire
Jones, Gregg, Creehan and Gerace
16th Floor, Grant Building
Pittsburgh, PA 15219-2294
Re: Marzullo v. Stop-n-Go
Dear Mr. Pasciullo:
I was present before Judge Narick on January 24,1986, at 9:30 at the date, time and place you designated in your letter of January 17, 1986. When, at 10 a.m., all other Motions had been presented, Judge Narick inquired as to the reason for my presence in the courtroom. I explained the situation and the Judge signed the Order attached to my Answer denying your Motion for Reconsideration and ordering $200.00 counsel fees.
A conformed copy of the Order of Court is enclosed herein. Pursuant to that Order, kindly forward to me a check payable to Brennan, Robins & Daley in the amount of $200.00 on or before February 3, 1986.
As you did ultimately schedule the argument on your Motion for Reconsideration, I will live with my extension of time of thirty days granted on January 3 1986, thereby expecting your answer to be filed on or before February 3, 1986.
Sincerely yours,
BARRY M. SIMPSON
BMS/ti
Enclosure
Record at # 20, Exhibit “A”.

The letter which was dated January 17, 1986 consisted of the following:

January 17, 1986
Barry M. Simpson, Esquire
Brennan, Robins & Daley
Nineteenth Floor
Commonwealth Building
Pittsburgh, PA 15222
Re: Marzullo v. Stop-N-Go
Dear Mr. Simpson:
This is to notify you that defendant's Motion for Reconsideration will be brought before Judge Narick at 9:30 a.m. on Friday, January 24, 1986.
In addition, you will note that in my request for an extension of time, I advised you that I would Answer or otherwise plead to plaintiffs Complaint. Defendant's Motion for Reconsideration is a pleading other than an Answer to plaintiff's Complaint.
It is apparent I must remind you and the Court of defendant’s courtesy in extending time for plaintiff to file his Complaint.
, , Very truly yours,
Nicholas A. Pasciullo
„.____ NAP/jd

Record at # 22, Exhibit “D”

When examining whether the filing of a motion for reconsideration could be the equivalent of the filing of a pleading, we are guided by Pa.R.C.P. 131 which states:

Rule 131. Rules in Pari Materia

Rules or parts of rules are in pari materia when they relate to the same proceedings or class of proceedings. Rules in pari materia shall be construed together, if possible, as one rule or one chapter of rules.

We also must refer to another rule, Pa.R.C.P. 1017, which states:

Rule 1017. Pleadings Allowed

(a) The pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, and preliminary objections and an answer thereto.

Thus, because the rules of civil procedure must be considered in pari materia, the filing of a motion for reconsideration is not equivalent to the filing of a pleading. Accordingly, when appellant filed a motion for reconsideration, appellant was still required to file an answer or “otherwise plead” by the extension date.

According to appellant, the case of Estate of Levy By Levy v. CNA Insurance Company, supra, is controlling and requires appellant to file a Rule 237.1 notice before entering a default judgment. However, this case is distinguishable.

In Levy, appellants-plaintiffs filed a complaint in assump-sit/trespass against an insurance company and its authorized agent for the loss of certain items which were severely damaged by a fire. Appellants initially granted appellees an extension to file an answer to February 19, 1982. Instead of filing an answer, appellees filed preliminary objections. These objections were granted in part, and, as a result, appellants filed an amended complaint on April 5, 1982.

Another extension to file an answer was given, and this time appellees filed a second set of preliminary objections. These objections were denied on June 1, 1982 and appellees were given twenty days to file an answer. Instead of filing an answer, appellees filed a request for production of documents and notice of service of interrogatories after the twenty day period lapsed, which was on June 23, 1982. Appellants filed a praecipe for judgment on June 23, 1982. Judgment was entered due to appellants’ failure to file an answer. In Levy, we said:

Appellants do not deny their failure to give written notice of their praecipe; nevertheless, they argue that two agreements for the extension of time and the order of court dated June 1, 1982 dismissed the notice requirement. Rule 237.1 provides several exceptions to the notice requirement, two of which are as follows:
1) If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule.
2) This rule does not apply to ... a judgment entered pursuant to an order of court or rule to show cause.
Appellants would have us hold that their consent to give appellees additional time to file answers to the original and amended complaints were written agreements which rendered the notice unnecessary. It is true that following oral consent given by appellants, letters dated January 19, 1982 and May 3, 1982 from appellees’ counsel were written confirmations of extensions to plead to the complaint and amended complaint.
However, the dispute here did not arise from appellees’ failure to file answers to the original complaint and to the amended complaint within 20 days of the filing of the amended complaint. It was not until appellees’ preliminary objections to the amended complaint were denied by order dated June 1, 1982, and 20 days had elapsed from that date, that appellees were in default. Appellants did not consent to an extension to file an answer beyond June 21, 1982; therefore, there was no exception to the notice of intent to file a praecipe. The two earlier agreements to extend the time for filing pleadings do not apply to the 20-day response period which commenced on June 1, 1982.

Id., 388 Pa.Superior Ct. at 196, 487 A.2d at 922.

In this case, we are not presented with a scenario where preliminary objections had been filed and the parties were awaiting the trial court’s disposition on the merits. If such were the case, the rules are clear. A party is entitled to an additional twenty days in which to respond according to the following:

Rule 1028. Preliminary Objections

(a) Preliminary objections shall state specifically the grounds relied upon.
(b) All preliminary objections shall be raised at one time. They may be inconsistent. Two or more preliminary objections may be raised in one pleading.
(c) A party may file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections. The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.
(d) If the preliminary objections are overruled, the objecting party shall have the right to plead over within twenty (20) days after notice of the order or within such other time as the court shall fix.
(e) If the filing of an amendment, an amended pleading or a new pleading is allowed or required, it shall be filed within twenty (20) days after notice of the order or within such other time as the court shall fix. (Emphasis Added). Instead, we have before us a procedural history which

establishes that preliminary objections had been denied on December 6, 1985. Although appellant had an additional twenty days in which to “plead over”, the parties had agreed to extend the time until February 3, 1986. Id. When an answer was not filed, appellee waited an additional fifteen (15) days before entering a default judgment.

Thus, appellant was not waiting for the court to rule on its preliminary objections; rather, appellant was asking the court to reconsider its ruling. Under these circumstances, Levy is distinguishable and is inapposite to the facts of the case. Additionally, our research has revealed no support for the filing of a petition for reconsideration to preliminary objections either under the Allegheny County Local Rules or under the Pennsylvania Rules of Civil Procedure.

By analogy, both in the civil and criminal areas, the filing of a motion to reconsider does not augment the time period for filing an appeal to our Court. Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 174, 450 A.2d 157, 158 (1982) (“A petition for reconsideration will not stay the appeal period”); Commonwealth v. Holden, 358 Pa.Super. 238, 240, 516 A.2d 1273, 1274-5 (1986) (“ 'The mere filing of a motion for modification and the court’s scheduling of a hearing do not affect the running of the thirty day period for filing a timely notice of appeal____’”) (quoting Pa.R.Crim.P. 1410 Commentary); See also Pa.R.Crim.P. 1410 and Pa.R.A.P. 1701.

The record indicates that the trial court denied appellant’s reconsideration motion. The trial court also awarded appel-lee counsel fees under 42 Pa.C.S.A. § 2503(7) which states:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a mat-ter____
Appellee sought counsel fees for the following reasons:
7. Plaintiffs counsel believes and therefore alleges that Judge Standish’s Order of Court [which dismissed the second set of preliminary objections] is the law of the case, that it is inappropriate for any other judge to overrule or reconsider Judge Standish’s Order, and that Defendant’s counsel has acted with inpropriety [sic] in (a) misrepresenting the nature of the pleading he intended to file when he requested an extension after his answer was already untimely and (b) in attempting to schedule this matter before Judge Narick rather than Judge Standish, and (c) in misrepresenting the past determinations of this Court.
“ANSWER TO MOTION FOR RECONSIDERATION AND REQUEST FOR COUNSEL FEES”1 Record at No. 18, Allegation # 7.

The order which was entered by the trial court on January 24, 1986, states:

ORDER OF COURT
AND NOW, to-wit, this 24th day of January, 1986, after consideration of the Defendant’s Motion for Reconsideration and Plaintiff’s Answer and Motion for Counsel Fees filed in response thereto, it is hereby ADJUDGED, ORDERED and DECREED that the Defendant’s Motion for Reconsideration is denied. It is further ORDERED that the Defendant’s counsel shall pay to Plaintiff’s counsel within ten (10) days of this order the sum of Two Hundred ($200.00) Dollars as attorneys fees awarded under 42 Pa.C. § 2503(7).
_S/ Narick_J.
J 10:00 am.
Record at #19. (Interlineation in original)

Because the trial court failed to vacate or otherwise nullify its original order denying appellant’s preliminary objections, appellant was not entitled to any additional time beyond February 3rd in which to file “an Answer or otherwise plead to Plaintiff’s Complaint.’?

Also, we note that judgment was not taken immediately after appellant was in default. The appellee waited fifteen (15) days before entering judgment. Compare Horan v. R.S. Cook & Associates, Inc., 287 Pa.Super. 265, 269, 430 A.2d 278 (1981) (no snap judgment where judgment was entered twenty-seven days after the extension expired) with Queen City Electrical Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980) (one day); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970) (one day); Safeguard Investment Co. v. Energy Service Associates, 258 Pa.Super. 512, 393 A.2d 476 (1978) (one day); Toplovich v. Spitman, 239 Pa.Super. 327, 361 A.2d 425 (1976) (four days).

With respect to appellant’s contention that judgment should be opened because it acted promptly and had a reasonable excuse and a complete defense to the appellee’s claim, we have applied the following guidelines:

“A petition to open a judgment is addressed to a court’s equitable powers, and the exercise of those powers will not be disturbed on appeal in the absence of an abuse of discretion.” Hutchison v. Hutchison, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). “Nevertheless, before a court may properly open a judgment the party seeking such relief must (1) timely file his petition to open; (2) show a meritorious defense ..., and (3) reasonably explain the default which occasioned entry of the judgment.” Service Bureau Co. v. Taylor, Meyer & Associates, 277 Pa.Super. 560, 566, 419 A.2d 1291, 1294 (1980).

Horan v. R.S. Cook & Associates, Inc., 287 Pa.Super. at 265, 430 A.2d at 279.

Because appellant has failed to set forth in his petition to open any defenses or an explanation for his failure to file an answer, the trial court did not abuse its discretion in denying appellant’s petition to open. Expío, Inc. v. Johnson & Morgan, 295 Pa.Super. 133, 441 A.2d 384 (1982).

Order is affirmed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I must respectfully dissent from the majority holding. While I do not take issue with the majority’s conclusion that a motion for reconsideration should not be construed as a “pleading” for purposes of Pa.R.C.P. 1017, I nonetheless would hold that the judgment of default should be stricken on other grounds.

In this case, we are confronted with a jurisdictional defect in the proceedings below, which must be addressed before any discussion of the status of appellant’s motion for reconsideration is warranted.

The initial set of preliminary objections filed by appellant to the original complaint were argued before, and decided by, Judge Narick of the Allegheny County Court of Common Pleas. By order dated September 12, 1985, appellee was ordered by Judge Narick to file an amended complaint. After the amended complaint was filed, appellant, again, filed preliminary objections, alleging that the amended complaint still failed to set forth a cause of action. On December 6, 1985, argument upon the second set of preliminary objections was heard by Judge Standish of the same court. Appellant requested at that time that the argument be sent back to Judge Narick. That request was overruled, and Judge Standish denied the preliminary objections the same day. It was not until the January 24,1986 hearing upon the motion for reconsideration that Judge Narick ruled upon the sufficiency of the amended complaint.

It is well settled in Pennsylvania that a trial judge may not pass upon the decision of another trial judge of the same court on an interlocutory matter. Commonwealth v. Madden, 342 Pa.Super. 120, 126, 492 A.2d 420, 423 (1985); Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 151-153, 461 A.2d 839, 842-43 (1983). Yet that is precisely what occurred in this case. Judge Narick considered the sufficiency of the initial complaint, and determined that the facts set forth therein did not state a cause of action against appellant. He ordered appellee to file a more definite statement of claim, and granted him twenty (20) days to amend his complaint. This order neither ended the litigation nor put appellee out of court, but was clearly interlocutory. See Freeze v. Donegal Mutual Ins. Co., 504 Pa. 218, 221, n. 5, 470 A.2d 958, 960 n. 5 (1983). Moreover, it became the “law of the case” with respect to the sufficiency of the facts as pled in the initial complaint. See Marmara v. Rawle, 264 Pa.Super. 229, 238, 399 A.2d 750, 755 (1979). As such, Judge Narick was empowered to evaluate the amended complaint, and to determine if amendment had cured the factual deficiencies present in the original complaint. By refusing to refer the argument on the sufficiency of the amended complaint back to Judge Narick, Judge Standish placed himself in a position to conceivably overrule the “law of the case”; that is to say, he might have found cure effectuated on the basis of superficial amendment which would have been deemed non-remedial by Judge Narick. This is precisely the type of scenario that the “co-equal judges” rule was designed to prevent. See Reifinger, supra. As such, Judge Standish’s order of December 6 was void ab initio. “When a court takes action beyond the power conferred on it by law (its jurisdiction), its action is a nullity, and objection to it cannot be waived ...” Dover v. Philadelphia Housing Authority, 318 Pa.Super. 460, 469, 465 A.2d 644, 649 (1983).

Having so concluded, it is appropriate to reexamine the agreement made by counsel to extend the time for the filing of appellant’s responsive pleading; it must be determined what impact, if any, the void status of the December 6 order had upon the capacity of the parties to agree as they did.

Agreements between counsel are intended to be legally binding contracts. See Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, 267 Pa.Super. 436, 406 A.2d 1120 (1979). However, they must be adjudged valid in accordance with the general principles of contract law to be enforceable. Hahnemann, supra.

With respect to the instant agreement, it would appear that the usual elements of a contract were present: a bargained-for exchange of promises, supported by valid consideration. Restatement, Second, Contracts §§ 1, 2, 71, 75. However, for an agreement of this nature to be enforceable, the promises exchanged must impose some legal duty of performance upon the parties, for which a remedy exists in the event of a breach. Where the law neither recognizes a duty nor provides a remedy for breach, the agreement is generally void. Restatement, Second, Contracts § 1, 7, Comment a. A void contract is of no legal effect whatsoever, and may be ignored by either party at will. See Yannuzzi v. Commonwealth State Horse Racing Commission, 37 Pa.Cmwlth. 288, 390 A.2d 331, 332 (1978); Black’s Law Dictionary 1745 (4th ed. 1968). This is in contrast to a voidable contract, where a party who is not legally bound to perform, selects to perform anyway, and terminates his right to avoid the agreement. Restatement, Second, Contracts § 7, Comments b, e. The crucial distinction is that a void agreement cannot be cured by an act of one or both of the parties, as the defect in the writing is beyond the control of the parties. Yannuzzi, supra; Black’s Law Dictionary.

Applying this void-voidable distinction, I would hold the agreement to be void. The agreement was premised upon the ability of Judge Standish’s order to compel an answer or responsive pleading, from appellant. However, Judge Standish’s order was void, and could compel nothing. It was of no legal effect. An answer or responsive pleading was not due from appellant until Judge Ñarick ruled upon the objections to the amended complaint. Furthermore, this defect could not be cured by either of the parties; neither, silence, consent, nor resignation can confer authority or jurisdiction over a cause of action where it does not exist. Commonwealth v. VanBuskirk, 303 Pa.Super. 148, 149, n. 1, 449 A.2d 621, 622 n. 1 (1982); In re Pozzuolo’s Estate, 433 Pa. 185, 249 A.2d 540, 545 (1969). As such, I would hold the agreement of counsel here void, as opposed to merely voidable. Appellant had twenty (20) days from the denial of its motion for reconsideration to file a responsive pleading. At the end of that 20 day period, appellant was entitled, then, to a formal notice of appellee’s intent to take default. Pa.R.C.P. 237.1(a). In the absence of such notice, the entry of default judgment against appellant was a snap judgment. Since snap judgments are highly disfavored, Nevils v. Chernitsky, 244 Pa.Super. 501, 504, 368 A.2d 1297, 1298 (1976), I would strike the judgment below, and permit appellant to file an answer only.

      . Both parties indicate in their briefs that appellant was absent at the scheduled time when appellant was to present his motion for reconsideration. Brief for Appellant at 3; Brief for Appellee at 3. Instead, appellee presented appellant’s motion.

      . The record indicates that Judge Narick initially issued two orders in this case. The first one, dated September, 1985, denied appellant’s preliminary objections and ordered appellee to file an amended complaint. Judge Narick also stated that appellant could renew its preliminary objections at that time. The other order dated October 2, 1985 granted appellee leave to file his amended complaint.

      . According to the dissent, the judgment should be stricken because a jurisdictional defect occurred in the proceedings below which voided the agreement of counsel to file an answer or otherwise plead. Under the dissent’s theory, "a trial judge may not pass upon the decision of another trial judge of the same court on an interlocutory matter." Dissenting Opinion at 556.
      However, in this case, another judge did not “pass upon the decision of another trial judge”. Id. Instead, Judge Narick granted appellee the opportunity to amend his complaint. After the amended complaint and second set of preliminary objections were filed, a decision was made by Judge Standish. Judge Standish did not “pass upon" whether Judge Narick properly allowed appellee the opportunity to amend his complaint. Rather, Judge Standish ruled upon the second set of preliminary objections.
      The prohibition against relitigating an issue by another judge of coordinate jurisdiction is designed to prevent "rescinding the order of a colleague." Commonwealth v. Madden, 342 Pa.Super. 120, 126, 492 A.2d 420, 424 (1985). Because no order of another judge was rescinded or otherwise overruled, the jurisdictional theory of the dissent must be “quashed.”
      The dissent also implies that our decision in this case is contradictory to that reached by the Court in Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 461 A.2d 839 (1983). However, Reifinger is distinguishable from the instant case on one essential point. A fundamental prerequisite for application of the co-equal judges rule is that the second co-equal judge have no new evidence to consider. Id., 315 Pa.Superior Ct. at 151, 461 A.2d at 842; Commonwealth v. Griffin, 257 Pa.Super. 153, 157, 390 A.2d 758, 760 (1978). The Court in Reifinger thoroughly discussed the fact that the record before the second judge who considered the issue of personal jurisdiction was not materially different with regard to that issue than the record before the first judge who considered it. In the instant case, the amended complaint set forth new and different averments than the original complaint. Thus Reifinger is inapposite.

      . Appellant has not raised the jurisdictional issue to be discussed infra on appeal, despite the fact that it was raised at various points in the proceedings below. However, the Superior Court has the authority to address an issue of jurisdiction sua sponte. County of Allegheny v. Commonwealth, 507 Pa. 360, 368-369, 490 A.2d 402, 406 (1985).

      . It should be noted that Judge Narick was available to hear argument upon the motion for reconsideration in January. The general rule that co-equal judges should not pass upon each other’s decisions in the same case, has an unavailability exception; that is, where the initial judge is no longer available to reconsider his or her order, another co-equal judge may, on occasion, hear and rule upon an earlier order issued by a colleague. However, this exception is limited to select situations, such as irremediable unavailability of the initial judge through death, recusal, retirement, transfer, or other causes. See Reifinger, supra; Sherman v. Yoder, 59 Pa.Cmwlth. 430, 430 A.2d 347 (1981); Duffy v. Gerst, 286 Pa.Super. 523, 532, 429 A.2d 645, 650 (1981).
      As Judge Narick was available in January, this limited exception is clearly inapplicable to the matter at bar.

      . It is true, of course, that Judge Narick did, apparently, concur with Judge Standish’s ruling that appellee’s amendments were sufficiently remedial, as evidenced by Judge Narick’s later denial of appellant’s petition for reconsideration. The result, however, does not cure the jurisdictional problem. There was no guarantee that the two judges would agree. It was equally possible that Judge Narick would reach the opposite result. The harm committed by Judge Standish was in the exceeding of his lawful authority, and not in the result he reached. The ends do not validate the means.

      . The majority opinion, at footnote 3, finds fault with the preceding analysis on the basis that Judge Standish’s order did not overrule or rescind the previous order of Judge Narick. As such, it is the majority's view that the "co-equal judges” rule does not apply in this instance.

        The Reifinger decision, authored by Judge Rowley of this panel, is, however, supportive of the position taken in this dissent. In Reifinger, preliminary objections challenging in personam jurisdiction were filed to the complaint, and denied by Judge Rosenwald of the Philadelphia Court of Common Pleas. Later, a motion for summary judgment, again challenging in personam jurisdiction, came before Judge Chalfin of the same court, and was granted.
      In his analysis of this question, i.e. the propriety of Judge Chalfin’s ruling, Judge Rowley does not confine his finding of reversible error to Judge Chalfin’s overruling of the previous order by Judge Rosen-wald. Rather, he clearly states that "(W)e hold that it was error for Judge Chalfin to consider Appellee Wilson & Savage's motion for summary judgment.” Reifinger, supra, 461 A.2d at p. 842 (Emphasis supplied). Judge Rowley’s holding is premised upon a common sense interpretation of the "co-equal judges” rule. If one judge is not empowered to overrule a colleague's holding with respect to a particular issue, it is pointless to permit that judge to reconsider his colleague’s holding, when his discretion would be limited to a mere "rubber-stamp” approval of the previous decision. In the words of Judge Rowley, a party who desires reconsideration should, where circumstances permit, "prepare a motion for reconsideration and submit it to the same judge who had decided the issue in the first instance." Reifinger, supra, at pp. 842-43.
      The majority attempts to distinguish Reifinger on the basis that the second co-equal judge in Reifinger had no new evidence to consider. The majority contends that the amended complaint in the instant matter contained new averments of fact, and, as such, presented "new evidence” to be considered by Judge Standish, thereby rendering the "co-equal judges” rule inapposite. The majority is correct in its assertion that the “co-equal judges” rule does not apply when the record before the second judge contains new evidence. However, the averments in pleadings are not evidence, nor are permitted to contain evidentiary material. The allegations in a pleading merely set forth material facts so as to frame the issues which will be tried. See Pa.R.C.P. § 1019; also see Goodrich-Amram 2d § 1019:1, § 1019(a):l, § 1019(a):ll. In Reifinger, the second judge was not called upon to review an amended pleading, but a motion for summary judgment. A motion for summary judgment is not a pleading, but an attempt by a party, after the pleadings are closed, to have judgment entered in its favor. Pa.R.C.P. 1035(a). Furthermore, a motion for summary judgment is permitted to include material of an evidentiary nature, such as deposition testimony, answers to discovery requests, and affidavits. Id.; see also Goodrich Amram 2d § 1035:1. Hence, the Reifinger court initially had to determine if the second judge was presented with any new evidence through the motion for summary judgment. Therefore, the majority’s attempt to distinguish Reifinger is flawed.

      . Because of the conclusion to be reached infra, that the agreement was void ab initio, it may be argued that there was also no consideration to support the parties’ mutual promises. A promise to forbear given in exchange for a promise to perform a legal duty is supported by valid consideration where the parties possess a good faith belief in the action or defense they are permanently surrendering, or temporarily forbearing from asserting. This is true even where their agreement is ultimately determined to be invalid. The fact that a rule of law renders a promise voidable or unenforceable, does not mean that the promise was not valid consideration. Restatement, Second, Contracts §§ 73; 74, comments, a, b, d; 75; 78.
      Here, appellee agreed to temporarily forbear from taking a default judgment, while appellant waived its right to further notice prior to the taking of default if a responsive pleading was not filed by February 3, 1986. As such, the conclusion to be reached infra does not affect the validity of the consideration supporting this agreement.

      . While this premise is not stated in the January 3, 1986 letter confirming the agreement, courts are permitted to "imply” a term which is a logical deduction from agreed terms and circumstances, or would appear a common tacit assumption, when the term supplied would appear essential to a determination of the rights and duties of the parties. Restatement, Second, Contracts § 204, Comment c. Clearly, it would appear logical to assume that this agreement would never have come into being had the parties known that the December 6 order was a nullity.

      . There is a further issue as to whether the agreement here, because of the parties’ disagreement concerning the status of a motion for reconsideration, would be unenforceable for lack of mutual assent to the same terms. However, this issue has not been raised, and is waived. The previous discussion upon various principles of contract law related solely to the jurisdictional issue: that is, did the lack of authority for the December 6 order prevent a contract from being formed? Any further discussion as to the term “motion for reconsideration” in contractual terms would be inappropriate. The majority has limited its discussion to the status of such motions for procedural purposes. I believe the majority’s decision to confine itself thus was entirely correct.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    527 A.2d 559
    COMMONWEALTH of Pennsylvania v. Barbra HAWTHORNE, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Barbra HAWTHORNE a/k/a Barbara Hawthorne.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed May 27, 1987.

      Moira Dunworth, Philadelphia, for appellant (at 3129) and appellee (at 3288).
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant (at 3288) and appellee (at 3129).
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This case involves cross-appeals by Barbara Hawthorne (No. 3129 Philadelphia 1984) and the Commonwealth of Pennsylvania (No. 3288 Philadelphia 1984) from the judgment of sentence entered for voluntary manslaughter and possessing an instrument of crime. We affirm in part and quash in part.

The facts necessary to resolve the present appeal begin with Barbara Hawthorne’s conviction, following a bench trial, of the stabbing death of her fiance.

A motion for a new trial and in arrest of judgment was filed challenging the verdict as contrary to the weight of the evidence and the law. Also, the Commonwealth’s cross-examination of the appellant and the limitation of her own direct examination by the trial court were argued as error. None was persuasive and a sentence of two to four years imprisonment was imposed for voluntary manslaughter while a term of one to two years incarceration was issued for the possession of a weapon conviction. See Pa.R. Crim.P. 1406(a) (Sentences to be deemed to run concurrently unless the judge states otherwise).

Six days after sentencing, the Commonwealth was granted a hearing on its motion to modify the sentence; that portion of the motion seeking a vacation of the sentence pending the hearing was excised and in its place was written the date the proceeding was to be conducted (November 19, 1984).

The question posited was: Whether the deadly weapon enhancement statute was applicable to the case. The trial court considered it to be a “significant” question, but it refrained from hearing argument on the matter because the appellant/Barbara Hawthorne had filed an appeal on the same date (November 14, 1984) that the Commonwealth’s reconsideration motion was granted. Thus, it thought that the Commonwealth had to file a praecipe in Superior Court, pursuant to Pa.R.App.P. 1701, to vacate Hawthorne’s appeal and to perfect subject matter jurisdiction in the trial court to hear argument on the sentencing issue.

No praecipe was ever filed. Instead, on December 10, 1984, the Commonwealth submitted a Notice of Appeal with the proper authorities questioning the judgment of sentence (under 42 Pa.C.S. § 9781).

The Commonwealth’s efforts to have the case remanded to allow the trial court the opportunity to reconsider the motion to modify sentence became entangled with and secondary to this Court’s belief that the Commonwealth’s appeal was untimely and, accordingly, we quashed. On a Petition for Reconsideration, this Court granted the request, reinstated the Commonwealth’s cross-appeal at No. 3228 Philadelphia 1984 and we directed the parties, in their briefs, to address the issue of the timeliness of the Commonwealth’s appeal under Pa.R.App.P. 903(b) and 42 Pa. C.S. § 5571(f).

We shall first respond to the appellant’s assertions that the verdict was against the weight of the law and the evidence. These claims, being identical to those raised in her post-verdict motion, are boiler-plate in nature and preserve no issue for our review regarding the sufficiency of the evidence. See Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc).

As for the remaining contentions of the appellant, attributing the trial court with the commission of error in permitting the Commonwealth latitude in cross-examining her as to an alleged prior stabbing incident and curtailing her own testimony regarding being physically abused by her former husband to establish her state of mind at the time of the stabbing, the record has been thoroughly reviewed and the claims raised are found to be meritless.

For example, as for the argument that the trial court erred in permitting the Commonwealth to question the appellant with regard to a prior stabbing involving her ex-husband a year prior to the incident involved here, “the scope of such cross-examination is largely within the discretion of the trial judge, and an abuse of discretion is not ground for reversal unless it results in an apparent injury.” Commonwealth v. Ransom, 240 Pa.Super. 92, 96, 360 A.2d 721, 723 (1976).

Instantly, the subject of the appellant’s former husband stabbing and punching her was broached on direct examination by defense counsel. Thus, the door was open for the prosecution to ask whether the appellant stabbed her former husband during the time when he allegedly struck her. Cf. Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981). Even if, arguendo, the cross-examination were error, it was harmless in light of the overwhelming evidence of the appellant admitting to the stabbing death of the victim. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

As for limiting the appellant’s recitation of the facts regarding the alleged physical abuse by her former husband, the record discloses that it was defense counsel, and not the trial court, who terminated the questioning on this subject, and it was done without the lodging of any objection to its continuation by the prosecution. (See N.T. 135-146) Thus, we find that the appellant’s ability to expound on this topic was unfettered. The appellant’s claim to the contrary is unsupported by the record.

The next issue to be examined relates to the timeliness of the Commonwealth's appeal.

The Commonwealth’s December 10, 1984 Notice of Appeal was timely since the 30 days within which it had to appeal from the November 8, 1984 judgment of sentence fell on a Saturday, i.e., December 8. Therefore, the Commonwealth had until the next business day (Monday, December 10) to file and still be within the statutory period. See 1 Pa.C.S. § 1908. Since no time-table was violated, the Commonwealth’s appeal is held to have been properly perfected for review.

The last issue we will examine relates to the applicability of the weapon enhancement section of the Sentencing Guidelines to the case at bar.

This issue is raised by the Commonwealth and assails the discretionary aspect of the sentence imposed, i.e., the sentencing court’s conclusion that the Deadly Weapon Enhancement proviso (204 Pa.Code § 303.4) is ineffectual with regard to multiple offenses arising out of a single incident.

Our Supreme Court had occasion recently to speak on the procedural requirements which need to be satisfied in order to secure appellate review of the discretionary aspect of a sentence in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

In Tuladziecki, the defendant was found guilty of various drug offenses but only sentenced for one of them to five years probation. This Court heard the Commonwealth’s appeal from the sentence issued and concluded that it was unreasonable and outside the Sentencing Guidelines. Commonwealth v. Tuladziecki, (No. 00627 Pittsburgh 1984) (Popovich, J. dissenting), 346 Pa.Super. 636, 499 A.2d 402. On appeal to the Supreme Court by the defendant, allowance of appeal was granted to examine the procedure by which the Commonwealth obtained Superior Court review of Tuladziecki’s sentence.

Because the Commonwealth’s appeal to the Supreme Court was from the discretionary aspect of the sentence, the Rules of Appellate Procedure, in particular Rule 902 and the Note accompanying it, were looked to by the Supreme Court, in conjunction with Rules 2116(b) and 2119(f), in tracking the Commonwealth’s adherence to procedural requirements as a sine qua non to obtaining appellate review.

Although the Commonwealth, in accordance with Rule 2116(b), listed in its brief to Superior Court at page 3 a section denominated “Statement Of The Questions Involved”, assailing the discretionary aspect of the sentence as unreasonable and being outside the Sentencing Guidelines, it failed to comply with the requirement in Rule 2119(f) that “[a]n appellant ... shall set forth in his[/its] brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.”

This Court’s refusal to accept the defendant’s argument that the Commonwealth was required to set down in a separate section of its brief reasons why its appeal should be granted was not endorsed by the Supreme Court, and it stated its rationale thusly:

It must first be observed that our rules make a careful distinction between “questions relating to the discretionary aspects of the sentence” and “the issue whether the appellate court should exercise its discretion to reach such question.” Pa.R.A.P. 2116. Recognizing this distinction, the language from the Note to Pa.R.A.P. 902 ... speaks only to the fact that the appellant is to supply his brief, with argument on the merits of the question, at the same time as he provides his concise statement of the reasons relied upon for allowance of appeal. It does not and cannot obviate the need for such a statement.

513 Pa. at 512, 522 A.2d at 19.

The Majority in Tuladziecki would appear to require the party (be it the Commonwealth or a defendant) appealing the discretionary aspects of a sentence to set forth “at some point” in his brief (preferably, immediately preceding the argument on the merits) reasons (“statement”) why an appeal should be granted. This is consistent with the treatment by the Rules of Appellate Procedure of one’s Notice of Appeal as a “petition for allowance of appeal” under the Sentencing Code (see Note to Pa.R.App.P. 902 and 42 Pa.C.S. § 9781(b)), which, in effect, defers the formal submission of a petition for allowance of appeal until the briefing stage. Tuladziecki, supra.

Once at the briefing stage, given Tuladziecki’s view that a “Notice” is the equivalent of a “Petition”, we deem it advisable to look to Pa.R.App.P. 1115 for some direction as to the form and content one’s brief should take in perfecting an appeal from the discretionary aspects of a sentence. For example, Pa.R.App.P. 1115 requires that the petitioner list various items of information, one of which is a “concise statement of the reasons relied upon for allowance of an appeal.” Rule 1115(a)(5). The order in which it is to be included in the petition (which, instantly, would be one’s brief) is recommended, insofar as practicable, to be in the sequence which appears in the Rule. This has been interpreted by the Supreme Court as requiring the presentment and examination of such a statement of reasons “at some point” in this procedural maze, but always “prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence[.]” 513 Pa. at 513, 522 A.2d at 19.

There can be no substitution for this “concise statement of reasons” by referring to the argument section of one’s brief, as appears to have occurred by the Superior Court panel in Tuladziecki and made mention of by Justice Larsen in footnote 2 of his dissent. To do so, according to the Majority in Tuladziecki, would be to permit an appellate court “to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists.” 513 Pa. at 513, 522 A.2d at 19. Thus, an assessment of the merits of the issue(s) must be preceded by a demonstration by the appellant that a “substantial question” exists in the case on appeal.

It is quite evident, from the remaining discussion in Tuladziecki, that the Supreme Court acknowledges the broad discretion vested in the trial court by the Legislature to impose a sentence, and “only where a party can articulate reasons why a particular sentence raises doubts that th[e Sentencing Code] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” 513 Pa. at 515, 522 A.2d at 20. Accordingly, we are not to overturn a trial court’s sentence without a “substantial question” first being established by an appellant in his brief to us.

At bar, our examination of the Commonwealth’s brief discloses that it is flawed in the same manner that our Supreme Court concluded that the Commonwealth’s brief was deficient in Tuladziecki, supra.

Both briefs contain the following relevant sections:

1) Statement of Jurisdiction;

2) Statement of Questions Involved;

3) Statement of the Case;

4) Summary of the Argument; and

5) Argument.

(See Commonwealth’s Brief in Tuladziecki at pages 3-8; Commonwealth’s Brief in Hawthorne at pages 1-5)

At first blush, there would appear to be a fatal variance between Tuladziecki and the case before us. In the former, the defendant specifically objected to the Commonwealth’s appeal as being procedurally deficient for failing to set forth in its brief, by “special and important reasons to obtain the [Superior] Court approval”, that a “substantial question that the sentence [was] not appropriate under the Sentencing Guidelines” existed. (See Commonwealth’s Brief in Tuladziecki at page 4) Our Supreme Court made note of this fact as preserving Tuladziecki’s challenge to the procedural shortcomings. No such claim is made by Hawthorne in her brief to us.

Nonetheless, under Tuladziecki, read in its entirety, it becomes quite evident that Superior Court is not merely to close its eyes to the failings of the Commonwealth in regard to an appeal filed pursuant to 42 Pa.C.S. § 9781(b), since the invocation of this Court’s jurisdiction is at stake and is not to be obtained by the perfection of an appeal and the submission of an accompanying brief where there is a blatant deviation from the accepted rules regulating appellate review. To do otherwise, as stated by our Supreme Court, would be to enlarge the appeal rights of a party not contemplated by the rules of court. “For this reason it is essential that the rules of procedure governing appeals such as [from the discretionary aspects of a sentence] be followed precisely.” 513 Pa. at 513, 522 A.2d at 17 (Emphasis added).

In light of the unequivocal terms in which the Supreme Court views compliance with our Rules of Appellate Procedure, in this area of discretionary appeals (“precise” adherence is to be the benchmark and not the exception), we deem the Commonwealth’s failure to provide anywhere in its brief a “concise statement of reasons” for contesting the discretionary aspect of the sentence to be fatal to its appeal.

The fact that the defendant did not raise specifically the matter in her brief is overridden by this Court’s obligation to assure itself that our rules of court are followed. See, e.g., Commonwealth v. Drew, 353 Pa.Super. 632, 510 A.2d 1244 (1986); Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1985); Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984); Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982). Such policing of an appellant’s brief is now re-enforced by the remarks and ruling of the Court in Tuladziecki, supra.

For the reasons herein stated, the appeal of Barbra Hawthorne at No. 3129 Philadelphia 1984 is affirmed. As for the appeal of the Commonwealth at No. 3288 Philadelphia 1984, we quash.

       This case was re-assigned to this writer on March 16, 1987.

      . We would point out that the trial court’s belief that it was the responsibility of the Commonwealth to file a praecipe with Superior Court to remand the appeal to resolve the sentencing question is flawed, and make mention of it to clarify an area of confusion.
      As this Court has had occasion to speak on this precise issue, we are not without guidance. See Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982), wherein we observed that a trial court's setting a hearing date to hear a defendant’s motion to modify sentence was not sufficient to toll the running of the 30-day appeal period within which review of a judgment of sentence must be taken to secure appellate assessment. Rather, the defendant was advised to file, simultaneously with a motion for modification, a notice of appeal in case modification was not granted. This way, a right to appeal would not be lost because of waiver.
      Further, we mentioned the existence of a distinction between Pa.R. App.P. 1701 and Pa.R.Crim.P. 1410; to-wit:
      We note that pursuant to Pa.R.App.P. 1701, unlike Pa.R.Crim.P. 1410, the lower court's granting of a reconsideration motion tolls the appeal period, in addition to rendering inoperative a notice of appeal filed concerning the order for which reconsideration has been granted. See Penjerdel Refrigeration Corp., Inc. v. R.A.C.S., Inc., [296] Pa.Super. [62], 442 A.2d 296 (1982).
      In order to cause a notice of appeal from a judgment of sentence to be rendered inoperative under Rule 1410, the lower court, which also considers a motion to modify the sentence, is required to vacate the sentence within thirty days of the date judgment is entered. Otherwise, the lower court loses jurisdiction over the matter. See Comment to Pa.R.Crim.P. 1410.
      298 Pa.Super. at 55 n. 2, 444 A.2d at 172 n. 2 (Emphasis in original); see also Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984). Our objective in making the aforementioned observation was to acknowledge the role of the trial court in retaining or re-securing jurisdiction over a case.
      By vacating the judgment of sentence, the notice of appeal filed by the appellant would have been rendered nugatory, and the time for filing any subsequent appeal (be it by a defendant or the Commonwealth) would "begin to run anew from the date of the decision on the motion, even if the decision ultimately amounts to a reimposition of the prior sentence.” Comment to Rule 1410.
      To make the matter clear, it was not the responsibility of the Commonwealth to file a praecipe with the appellate court to reacquire jurisdiction in the absence of an order of court vacating the judgment of sentence.
      The mere vacation of the sentence by the court below would have been sufficient to toll the running of the limitation period, and this would have afforded the aggrieved party a new time-table against which to measure the timeliness of any later appeal.
      Because the trial court misinformed the Commonwealth as to its role in the appellate process, we cannot fault the Commonwealth for failure to file a praecipe (in advance of a vacation order by the trial court) to freeze the appeal. See generally Commonwealth v. Thomas, 301 Pa.Super. 333, 447 A.2d 994 (1982).

      . We in no way wish to imply, given the manner in which we dispose of this case, that we approve or disapprove of the way in which the trial court dealt with the case below.


author: CIRILLO, President Judge:

text:
    527 A.2d 564
    John J. SANDOVAL, an Individual v. HONDA MOTOR CO., LTD., a Corporation, American Honda Motor Co. Inc., a Corporation and Dunbar Motors Inc. T/A Dunbar Honda, a Corporation. Appeal of HONDA MOTOR COMPANY, LTD.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed June 16, 1987.

      Scott Redman, Pittsburgh, for appellant.
    Edgar D. Harr, Greensburg, for Dunbar Motors, appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Westmoreland County denying the preliminary objections of Honda Motor Company. We affirm.

Appellee, John Sandoval brought a tort action against appellant, Honda Motor Company (Honda) for injuries caused by an accident in July of 1986. Sandoval sent a copy of the complaint via registered mail to Honda’s headquarters in Japan, pursuant to the Pennsylvania long-arm statute, 42 Pa.C.S.A. § 5321 et seq. The complaint was in English. Honda filed preliminary objections, claiming that the method of service violated The Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters or as it is commonly known, the Hague Convention. The trial court denied Honda’s objections but ruled that the matter presented a substantial issue as to jurisdiction. Honda then filed an interlocutory appeal as of right. See Pa.R.A.P. 311(b)(2).

Appellant presents two issues for our review: (1) whether the service of a complaint via certified mail on a Japanese corporation in Japan violates the Hague Convention; (2) whether the appellee's failure to translate the complaint into Japanese prior to service violates the Hague Convention.

Both parties agree that Sandoval complied with the applicable provisions of the Uniform Interstate and International Procedure Act as codified at 42 Pa. C.S.A. § 5323. The Act provides in pertinent part for service of process upon persons outside the Commonwealth: "... by any form of mail addressed to the person to be served and requiring a signed receipt”.

Sandoval and Honda also agree that as a treaty ratified by the United States, the Hague Convention takes precedence over any conflicting state statute. United States Constitution, Art. VI cl. 2; United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942).

The parties disagree over whether the Hague Convention conflicts with § 5323. Honda claims that there is a conflict and Sandoval asserts that the two are harmonious. We agree with appellee, Sandoval.

The Hague Convention has been ratified by over twenty countries, including the United States and Japan. It provides for several alternative means of service of process. The section of central importance to this action is as follows:

Article X of the Convention states: Provided the state of designation does not object, the present Convention shall not interfere with—
(a) the freedom to send judicial documents by postal channels, directly to persons abroad,
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of designation,
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through judicial officers, officials or other competent persons of the State of designation.

Japan has declared that it objects to the methods of service specified in 10(b) and (c). Because Japan has not objected to Article 10(a), that section provides a permissible means of service upon Japanese corporations. See Shoei Kako v. Superior Court, 33 Cal.App.3d 808, 109 Cal.Rptr. 402 (1973); Weight v. Kawasaki, 597 F.Supp. 1082 (E.D.Va. 1984); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182 (D.D.C.1984); Ristau, Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 112 (1984).

Therefore, Sandoval complied with the convention when he directly served Honda via certified mail.

It has been argued that Article 10(a) does not apply to the “service” of judicial documents because it uses the term, “send” instead of the word, “service”. However, it has been documented that the drafters meant “service” and the discrepancy resulted from careless drafting. Ristau, Handbook, supra, at 165-67; Shoei Kako, 33 Cal.App.3d at 821-22, 109 Cal.Rptr. at 411-12. As the Shoei Kako court stated:

The reference to the freedom to ‘send judicial documents by postal channels, directly to persons abroad would be superfluous unless it was related to the sending of such documents for the purpose of service.

That is so because the mails are open to everyone. Persons do not need an international convention on the service of judicial documents to give them the right to “send” mail.

Our attention has been directed to Voorhees v. Fischer & Krecke, 697 F.2d 574 (4th Cir.1983). In Voorhees, the court held that service of process upon a German corporation similar to that used in this case was improper under the Convention. Id. at 575. However, the court stated that West Germany had objected to the provisions of Article 10(a). Id. As noted, Japan has not objected to this section. Therefore, Voorhees is inapplicable to this case.

Honda also claims that the complaint should have been translated into Japanese prior to service. Article V of the Convention provides an alternative means of service:

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either—
(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons
who are within its territory____
It also states:
If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official languages of the State addressed.

But, the above quoted provision does not apply to this case because Sandoval chose to proceed under Article 10(a). That article does not require foreign translation. Weight at 1086. See also Shoei Kako, supra.

Based upon the foregoing discussion, the order of the Court of Common Pleas of Westmoreland County is affirmed.


author: TAMILIA, Judge:

text:
    527 A.2d 567
    Edith SCHOFFSTALL v. Ronald SCHOFFSTALL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1987.
    Filed June 19, 1987.
    Petition for Allowance of Appeal Denied Nov. 25,1987.

      Alexander A. Bluestone, Pittsburgh, for appellant.
    Stanley I. Selkowitz, McKeesport, for appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order dated June 23, 1986, adjudging the appellant to be in contempt and imposing sanctions for failure to comply with an Order to pay alimony pendente lite. To better understand this case and the events that led to the contempt Order, we believe a review of the history as shown by the record is desirable.

Appellant/husband filed a complaint in divorce against appellee/wife in August of 1984. As part of her answer, appellee/wife included claims for equitable distribution, alimony, alimony pendente lite, counsel fees, costs and expenses.

After a hearing, the hearing officer made recommendations as to alimony pendente lite and exceptions were filed. Upon agreement of the parties, the recommendations were vacated and the matter was again listed before a hearing officer. After a second hearing, during which time the hearing officer entered a recommendation that appellant pay $390 per month as alimony pendente lite plus $130 per month on arrearages set at $1,560, the trial court, on April 15, 1985, entered an Order in accordance with the hearing officer’s recommendations.

On June 27, 1985, appellee/wife filed a petition for contempt alleging that no payments had yet been made. On July 19, 1985, the court entered an Order finding appellant in contempt and stating that appellant could purge himself of the contempt by compliance with the Order. On July 31, 1985, after a hearing before Judge Kaplan, the court found appellant had not complied with the Order and, therefore, ordered him incarcerated until he made a $1,000 payment to appellee. After a day of incarceration, appellant paid the $1,000 and the Order was vacated.

On January 22, 1986, the parties again appeared before the hearing officer for a hearing on a contempt petition filed by appellee and on appellant’s petition for modification of the pendente lite Order and for enforcement of a purported settlement agreement. On March 13, 1986, the hearing officer recommended that appellant’s petitions be denied and further recommended that appellant be found in contempt of court. Appellant was given an opportunity to purge himself of the contempt by (1) making a payment of $1,000 against arrearages by April 29 and (2) keeping the existing support Order current. Exceptions were filed to the recommendations but were dismissed by Judge Standish on May 12, 1986. The Order also affirmed the hearing officer’s finding of contempt and stated that appellant would be sent before a judge for possible incarceration if he failed to comply with the Order. Appellant appealed the Order to our Court; however, we sua sponte quashed the appeal as no sanctions were imposed and thus the contempt Order was found to be interlocutory.

This case was then scheduled for a review for compliance before a hearing officer on June 23, 1986. On that date, after the initial hearing, the hearing officer requested that Judge Wettick hear the matter because of the possibility that appellant would be placed in jail. As of June 23,1986, appellant had made only one $100 payment on the support Order following the March 13,1986 hearing and he also had failed to make the lump sum payment of $1,000. Thus at the time of the hearing, appellant owed arrearages of approximately $6,000 on the April 1985 Order. On June 23, 1986, Judge Wettick found appellant in continuing contempt of court. The Order stated that he could purge himself of the contempt by paying $600 by June 30, 1986, $600 by July 30, 1986, $600 by August 28, 1986 and $600 by September 16, 1986, and if he failed to make the payment on any successive date, he would be incarcerated. This appeal followed.

Appellant now contends the court below erred in finding him to be in contempt on June 23, 1986 without permitting him to testify as to his present financial ability and, thereby, to purge himself of the contempt Order.

The lower court, in a footnote to his Slip Opinion, describes the practice utilized by the court in civil contempt proceedings as follows:

Under the practices of this Court, an evidentiary hearing on a petition for civil contempt is conducted by a hearing officer. However, only a judge may enter an order adjudicating a party to be in contempt of court. A judge will enter such an order upon recommendation of the hearing officer if no exceptions are filed to the recommendation. If exceptions are filed, a judge will enter such a [sic] order only if, after reviewing the record, he or she determines that the party is in contempt of court. Furthermore, a party may be committed to jail only after an evidentiary hearing before a judge. These practices permit this court to respond promptly to the failure of a party to comply with a support order while limiting judicial involvement to those cases in which an order committing a defendant to jail may be appropriate.

(Slip Op., Wettick, J., 12/10/86, p. 2).

We agree with appellant’s assertion that he must be permitted to introduce evidence as to his ability to pay the amount necessary to purge himself of contempt. Here, Judge Wettick had an evidentiary hearing at which the appellant was present, represented by counsel and testified. The greater part of the hearing consisted of appellant’s attempt to go behind the Order and to establish that it was unreasonable ab initio. As the lower court held, this was a matter properly relegated to the petition and hearing on modification, which was denied, and may not be relitigated at the contempt proceeding. The testimony presented by appellant as to his present ability to pay (or lack of it) was that he was behind in his rent four months (T.T. 6/23/86, p. 9), he has moved and stays with his mother and friends (T.T. 6/23/86, p. 10) and he claims indebtedness of $4,000 and an inability to raise $1,000 required by the court (master) to purge himself of contempt (T.T. 6/23/86, p. 22). He acknowledged tbat he has present income of $250 per week. The jointly owned home is also a partial asset which could be considered as an asset in purging himself of the contempt, once sale is completed.

The hearing officer was sworn and testified (T.T. 6/23/86, p. 10) that appellant had a Ram Charger truck, was fully employed and failed to pay any amount beyond $100 since the earlier Order. The testimony also revealed appellant’s daughter, who he earlier claimed lived with him, no longer does so. However, appellant’s counsel attempted to introduce evidence concerning appellant’s financial circumstances as they related to the initial Order, but the lower court rebuffed his attempts. The lower court was correct in refusing testimony as to appellant’s financial ability to pay the alimony pendente lite Order entered on April 15, 1985. The issue before the court on June 23, 1986 was whether appellant could be held in contempt for failure to satisfy his obligations. On that issue, Judge Wettick found the appellant was in contempt and that he had a present ability to pay.

The issue before us is whether, pursuant to procedures established for conducting civil contempt hearings in support and alimony cases, the appellant had the requisite opportunity to establish his lack of ability to pay.

It is clear that when a party fails to comply with an Order directing payment of alimony pendente lite, the court may exercise its civil contempt power to enforce compliance with its Order.

The power to punish for contempt, including the power to inflict summary punishment, is a right inherent in the courts and is incidental to the grant of judicial power under the Constitution. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); Commonwealth v. Haefner, 470 Pa. 392, 368 A.2d 686 (1977). A court may exercise its civil contempt power to enforce compliance with its orders or decrees if its purpose is to compel performance and not to inflict punishment. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Petition of Specter, 439 Pa. 404, 268 A.2d 104 (1970); Commonwealth v. Feick, 294 Pa.Super. 110, 439 A.2d 774 (1982). The characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of civil contempt by complying with the court’s directive. In re Martorano, supra [464 Pa. 66, 346 A.2d 22 (1975)]; Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976).

Hopkinson v. Hopkinson, 323 Pa.Super. 404, 411, 470 A.2d 981, 985 (1984).

While this case involves an Order of alimony pendente lite, pursuant to 23 P.S. § 502, Alimony pendente lite, counsel fees and expenses, and is enforceable pursuant to 23 P.S. § 503, Enforcement of arrearages, the provisions for enforcement are identical to those employed for support proceedings, not incident to divorce and governed by Pa.R. C.P. 1910.29, Enforcement of support. This becomes more apparent when we consider that the legislature has provided for payment of support, alimony and alimony pendente lite through the Domestic Relations section of the court, which would then be responsible for notifying the court of default pursuant to 23 P.S. § 504, Payment of support, alimony and alimony pendente lite. Obviously the legislature did not intend there to be two sections and two procedures for enforcement of an identical obligation and we, therefore, conclude that the provisions for enforcement of support, pursuant to Pa.R.C.P. 1910.20 and 1910.21, are applicable here.

Rule 1910.20 of Pa.R.C.P. provides that “a support order may be enforced by contempt proceedings pursuant to Rule 1910.21.” Rule 1910.21, Civil Contempt, sets forth the procedural law of contempt proceedings in support actions. The rule provides for a hearing on the petition for contempt. In Crislip v. Harshman, 343 Pa.Super. 349, 365 A.2d 1260 (1976), five elements were essential to a civil contempt adjudication: (1) rule to show cause why an attachment should not issue, (2) an answer and hearing, (3) a rule absolute (arrest), (4) a hearing on the contempt citation and (5) an adjudication of contempt. This was found to be onerous, unworkable and wasteful of staff and judicial time without increasing protection to the contemnor or aiding in resolution of the arrearage problem. Rule 1910.21 has streamlined the proceeding providing timely and adequate notice to the contemnor, by regular mail, with safeguard for continuing the case for personal service (Pa. R.C.P. 1910.21(c)). The issuance of a bench warrant, pursuant to Rule 1910.13, will generally occur only after personal service for a continued hearing was served on the defendant and ignored. Should a warrant issue from the court instead of personal service because of exigent circumstances, the defendant must be brought to court for a hearing and he may not be jailed prior to hearing. The evolution of support proceedings has come 180° from summary proceedings commenced by jailing a defendant, to dealing with the issue of support as a family matter in which the goal is to obtain support and produce the defendant in court, rather than to punish by jailing him.

In Barrett, supra, the Supreme Court held:

[Wjhere, as here, the court in civil proceedings finds there has been willful noncompliance with its earlier support orders constituting contempt but the contemnor presents evidence of his present inability to comply and make up the arrears, the court, in imposing coercive imprisonment for civil contempt, should set conditions for purging the contempt and effecting release from imprisonment with which it is convinced beyond a reasonable doubt, from the totality of the evidence before it, the contemnor has the present ability to comply. Since to condition a person’s avoidance of or release from imprisonment on his performing acts beyond his power to perform is in effect to convert a coercive sentence into a penal one without the safeguards of criminal procedure, we are of the opinion that the stricter evidentiary standard of the criminal law should apply with regard to the issue of present ability. (Citations omitted).
Id. 470 Pa. at 621, 368 A.2d at 621. See also; Muraco v. Pitulski, 470 Pa. 269, 368 A.2d 624 (1977).

The standard of review in alimony cases is the abuse of discretion standard. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). We may sustain the lower court if its decision can be sustained on any ground whatsoever without regard to the reasons the trial court relied upon. Hop-kinson, supra 323 Pa.Super. at 411, 470 A.2d at 985.

Here, the trial court pursued a proceeding of which we approve. The hearing officer conducted a preliminary hearing, after notice, on the contempt petition. When it appeared the appellant could not defend his actions of willful noncompliance with the support Order, aside from a desire to relitigate that Order, the case was adjourned to a hearing before the court de novo on the contempt issue. The trial judge properly limited the hearing to the issue of willful noncompliance with the alimony Order. The appellant was given adequate opportunity to testify concerning his present ability to comply with the sanctions proposed by the court. He was in arrears $6,000, was required to pay $600 on four successive dates or be jailed and to continue payment in full thereafter. The appellant was unable to persuade the court that, with his present resources, he could not comply with that Order. We believe the hearing was adequate, the Order and sanctions measured and fair and that the court properly concluded, beyond a reasonable doubt, that appellant had the present ability to pay. The lower court could properly treat, with some skepticism, the appellant’s failure to pay rent in the past four months, his giving up his apartment and living with his mother and his alleged indebtedness of $4,000 when he continued to pay other bills, remained employed and failed to explain his hardship, particularly when the alimony Order went unpaid. Throughout, the appellant has had the capacity to purge himself of the civil contempt, by compliance with the Order. He has avoided his obligation for a considerable period of time and is properly required at this time to fulfill that obligation. The Order of the lower court is affirmed. The plight of the payees of support Orders (mostly women and children) is onerous, and the burden on the staffs and judges in Domestic Relations Divisions and Family Divisions is overwhelming in enforcing the support and alimony obligations. We must do all that is necessary to uphold the reasonable enforcement process through wage attachment and contempt proceedings to discourage obligors who otherwise would ignore their responsibilities.

Order affirmed.

      . The Order was stayed pending appeal.

        . Trial counsel was first employed at the contempt proceeding before the master as appellant was represented by other counsel during earlier hearings. He thus had difficulty accepting that the Orders of alimony and arrearages were reasonable.

      . This approval does not extend to that part of the practice described by the lower court, in which the court, without the presence of the hearing officer and the contemnor, would sign an Order of contempt and impose sanctions, upon the recommendation of the hearing officer, if no exceptions are filed. We are troubled by a procedure which does not require that the defendant appear in court before a judge for a hearing prior to a finding of contempt. An evidentiary hearing, after such a finding, seems to be an inversion of due process of law. This is particularly so when it appears that the rules on Civil Contempt, 1910.21(c), very carefully spell out the procedure requiring the defendant to be produced before the court. We have carefully turned away from the exhaustive procedures spelled out in Crislip for establishing contempt by a defendant, but to place our imprimatur on a proceeding in which contempt is found, on the recommendation of the master without a personal appearance before the court, invites abuses even in a court so well operated as that of Allegheny County.

      . This conforms with the requirement that the court not confuse the coercive and prospective function of imprisonment in civil contempt with criminal punishment for past acts. In Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977), the Supreme Court stated the fact that husband might be indigent at time of imprisonment had no bearing on his failure to support his wife and children when he was able.


author:
TAMILIA, Judge:
      DEL SOLE, Judge,

text:
    527 A.2d 572
    COMMONWEALTH of Pennsylvania v. Paul J. LAPCEVICH, III, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1987.
    Filed June 18, 1987.
    As Amended June 25, 1987.
    Petition for Allowance of Appeal Denied Oct. 13, 1987.

      Charles F. Gilchrest, Sharon, for appellant.
    Lorinda L. Hinch, Assistant District Attorney, Mercer, for Com., appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

On November 27, 1985, appellant, Paul J. Lapcevich, III, was convicted by a jury of arson, 18 Pa.C.S. § 3301(c)(3), and criminal conspiracy to commit arson, 18 Pa.C.S. § 903. Post-trial motions were denied and judgments of sentence were entered in which appellant was sentenced to a term of incarceration of one and one-half (IV2) to ten (10) years for the arson conviction and one (1) to six (6) years for the conspiracy conviction, both to run consecutively, as well as ordered to make restitution in the amount of $11,507.06. Appellant brought a timely motion to modify sentence on August 14, 1986, which was denied by the trial court by Order dated August 18, 1986. A timely appeal to this Court was filed on September 3, 1986.

Appellant first argues that the evidence presented at trial was insufficient as a matter of law to support the convictions because the allegedly unsupported and uncorroborated testimony of the physical perpetrator of the crime, David Atwell, was so uncertain, vague, contradictory and inconsistent so as to be utterly lacking in credibility. Our scope of review for evaluating claims based on the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Griscavage, 336 Pa.Super. 141, 485 A.2d 470 (1984). Guilt beyond a reasonable doubt can be shown wholly by circumstantial evidence. Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985); Commonwealth v. Alvarado, 333 Pa.Super. 63, 481 A.2d 1223 (1984). “A jury may convict even on the uncorroborated testimony of an accomplice.” Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984); Commonwealth v. Hartzell, 320 Pa.Super. 249, 467 A.2d 22 (1983).

Atwell had been tried and found guilty of arson, criminal conspiracy and criminal mischief in an earlier trial, in which he did not testify, concerning the same fire in question here. In this case, Atwell testified that he conspired with appellant to set the fire for pay from appellant at a time when appellant would be out-of-town and forming an alibi. As in Goldblum, supra, appellant’s contention is not that this evidence is insufficient, since Atwell’s testimony alone would be enough to convict, but that Atwell’s testimony must be omitted from consideration because it was uncertain, contradictory and inconsistent, leaving the conviction supported by inadequate circumstantial evidence at best.

Most of the contradictions appellant relies upon are discrepancies between Atwell’s trial testimony and his pre-trial statements to insurance investigators as well as his prior statements under oath. Brief for Appellant at 6-8. We find appellant’s argument controlled by Goldblum, supra, 498 Pa. at 467, 447 A.2d at 240, in which the Supreme Court stated:

[Appellant’s] reliance on contradictions between [the witness’] out-of-court statements and his in-court testimony is misplaced, for such discrepancies concern credibility and do not render impossible rational consideration of the evidence presented. A new trial may be appropriate in a case where the testimony at trial is hopelessly contradictory, but in this case [the witness’] testimony at trial was consistent. Appellate courts reverse convictions based upon unreliable or contradictory evidence in order to prevent the verdict from being based upon mere conjecture ‘rather than the product of reasonable reconciliation.’ Such a purpose would not be served by removing evidence from the jury’s consideration merely because it was challenged by the defense as to its credibility. (Emphasis in original).

Thus we find appellant’s argument meritless. Credibility is a factual issue and is most appropriately resolved by the trier of fact, subject to review on post-trial motions; assessment of a witness’ credibility is not an appropriate function of appellate review. Commonwealth v. Cristina, 481 Pa. 44, 391 A.2d 1307 (1978); Commonwealth v. Beckham, 349 Pa.Super. 430, 503 A.2d 443 (1986).

Next, appellant claims the trial court erred in refusing his point for charge number four, which reads as follows:

4. Although you may find Mr. Lapcevich guilty based on Mr. Atwell’s testimony alone, even though it is not supported by any independent evidence, I must say to you that it would be very unsafe and dangerous for the jury to do so. Cox v. Commonwealth, 125 Pa. 94, 96-97 [17 A. 227] (1889).

Appellant misconstrues Cox, supra, as requiring the jury be informed it is dangerous or unsafe to convict on the unsupported testimony of an accomplice and we adopt Judge Acker’s thoughtful discussion on that point. (Slip Op., Acker, P.J., 5/29/86, pp. 11-15).

Upon a thorough review of the trial court’s instructions to the jury, we find the trial court adequately instructed the jury on the dangers of accomplice testimony without using the precise wording of appellant’s point for charge four. (N.T. 11/12/85 to 11/18/85, vol. II, pp. 747-752). A trial court has broad discretion in phrasing its instructions to the jury and need not accept counsel’s precise wording. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983).

Appellant’s last contention on appeal is that the sentencing judge erred by failing to state adequate reasons on the record at the time of sentencing for the imposition of consecutive sentences of incarceration as opposed to concurrent sentences. This is a narrow question on appeal. Appellant does not contend that the sentencing court failed to state adequate reasons for the sentence imposed, merely that the imposition of consecutive sentences was invalid because the sentencing court did not state adequate reasons for making the sentences consecutive. We disagree. The sentencing court set forth numerous reasons why it considered incarceration appropriate in appellant’s case; including the gravity of the offense, the premeditated nature of appellant’s actions and the serious danger to society such an offense can impose. (N.T. 8/4/86, pp. 30-45). We find the court fully complied with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), when stating its reasons for the sentence imposed.

Judgment of sentence affirmed.

DEL SOLE, J., joined by ROWLEY, J., concur.

DEL SOLE, Judge,

concurring:

I join the Majority Opinion. I write separately to express my position relative to the application of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

In my view this court has jurisdiction to hear appeals from the discretionary aspects of sentencing as delineated in 42 Pa.C.S.A. § 9781(b).

Further, the Supreme Court in Tuladziecki, supra, specifically stated that the requirements set forth in that opinion are procedural in nature. Further, the court held:

The Appellant properly preserved his challenge to this procedural violation and for the reasons stated herein the Superior Court’s decision to overlook it must be vacated. (Emphasis added).

Therefore, I would conclude in this case that the Appel-lee’s failure to raise the procedural violation of the Appellant is a waiver of the Tuladziecki requirements.

In addition, since the Tuladziecki requirements are procedural, this court can consider whether or not there has been substantial compliance with those requirements in choosing to reach the discretionary aspects of sentencing issues. On that basis, I agree, with my colleagues.

      . Appellant had proceeded to a jury trial on the same charges on February 22, 1983, however, a mistrial was declared on February 25, 1983, after the jury failed to arrive at a verdict. This resulted in appellant's requesting dismissal of the charges based on double jeopardy grounds, which motion was denied by both the lower court and our Court on appeal.

      . We determine that pursuant to the direction espoused in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the appellant presented a suitable "statement of question” by “brief reasons” indicating a “substantial question” exists before discussion of the merits. We, therefore, may properly address the merits of the discretionary aspect of his sentence.


author: BECK, Judge:

text:
    527 A.2d 575
    COMMONWEALTH of Pennsylvania, Appellant, v. John E. BRUNER.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed June 26, 1987.

      Jo-Ann Verrier, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Michael J. Kelly, Assistant Public Defender, Philadephia, for appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   BECK, Judge:

This is a direct appeal by the Commonwealth from the judgment of sentence imposed on appellee-defendant John Bruner after his conviction at a bench trial on charges of corruption of minors, indecent assault, and involuntary deviate sexual intercourse. Post-verdict motions were timely filed and argued. The trial court granted Bruner’s motion to arrest judgment on his conviction of involuntary deviate sexual intercourse. All other post-verdict motions were denied, and Bruner was sentenced. The Commonwealth now appeals the order arresting judgment of involuntary deviate sexual intercourse.

The charges in the instant case arise out of Bruner’s sexual assault of his five-year-old nephew. While the vie-tim was visiting Bruner’s home, Bruner invited the boy to accompany him outside on a walk. Once outside, Bruner led the boy to a car, which the two entered. Bruner proceeded to unzip the child’s pants and remove the boy’s penis. Bruner then put his mouth around and sucked the boy’s penis.

On appeal, the Commonwealth’s sole argument is that the trial court erred in interpreting the statutes defining the offense to mean that involuntary deviate sexual intercourse involving “sexual intercourse per os” occurs only when the mouth involved is that of the victim, not that of the perpetrator. We agree with the Commonwealth, and we vacate the judgment of sentence, reverse the order arresting judgment of involuntary deviate sexual intercourse, and remand for resentencing.

The statute defining the offense, 18 Pa.Cons.Stat.Ann. § 3123 (Purdon 1983), reads as follows:

§ 3123. Involuntary deviate sexual intercourse
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious;
(4) who is so mentally deranged or deficient that such person is incapable of consent; or
(5) who is less than 16 years of age.

At the time of the offense, Section 3101 of the Crimes Code, 18 Pa.Cons.Stat.Ann. § 3101 (Purdon 1983) , defined “deviate sexual intercourse” and “sexual intercourse” in the following language:

“Deviate sexual intercourse.” Sexual intercourse per os or per anus between human beings who are not husband and wife, and any form of sexual intercourse with an animal.
“Sexual intercourse.” In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.

This court has recently analyzed these sections in depth in Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987). The Westcott court interpreted the above statutes to include cunnilingus. Although the court in Westcott thus considered a different sexual act from the one in the instant case, we find the Westcott statutory analysis to be applicable to this case. In Westcott this court rejected an argument that “violation of § 3123 is limited to penile penetration of the mouth and the anus.” 362 Pa.Super. at 191, 523 A.2d at 1147. The court noted the inclusion of the phrase “emission is not required” in the statutory definition of “sexual intercourse” and added:

A common sense analysis of this definition leads us to conclude that deviate sexual intercourse can be that which occurs by the means or the agency of the mouth (or tongue) in penetrating the vagina, i.e., the mouth (or tongue) is here utilized as the penetrating agent, thus embracing the statutory exclusion of the necessity for emission in § 3101’s definition of sexual intercourse. Any other interpretation would result in an absurd construction being placed upon the statute which the General Assembly, in enacting legislation, is presumed never to intend. Lehigh Valley Coop. Farmers v. Com., Bur. Employment Security, Dept. of Labor and Industry, 498 Pa. 521, 447 A.2d 948 (1982); Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982); 1 Pa.C.S.A. § 1921(1).

362 Pa.Super. at 191-192, 523 A.2d at 1147.

In interpreting legislative intent the court noted:

As to necessity and purpose of the involuntary deviate sexual intercourse statute, the Commonwealth, within the proper bounds of its police power, does have a strong interest in shielding members of the public from unwelcome submission to sexual contact and in protecting minors from being sexually abused by adults. See Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), and Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984). We find this consonant with the general objectives set forth in the Crimes Code of 1972.

362 Pa.Super. at 192-193, 523 A.2d at 1148.

In making its holding, the Westcott court stated:

[W]e believe that a reasonable, common sense reading of § 3123, together with the definitional language contained in § 3101, leads to no other conclusion but that the legislature intended the act of cunnilingus to fall within the class of crimes constituting involuntary deviate sexual intercourse.

362 Pa.Super. at 195, 523 A.2d at 1149.

Similarly, we find that a “reasonable, common sense reading” of Sections 3123 and 3101 compels the conclusion that the legislature could not have intended the interpretation Bruner urges. Bruner would adopt the view of the trial court, which noted that Section 3101 defines “sexual intercourse” as requiring some penetration and added: “This Court takes that to mean penetration of the body of the victim and not that of the perpetrator.” Bruner would have us conclude that an adult male who inserts his penis into a child’s mouth commits involuntary deviate sexual intercourse, but an adult male who inserts a child’s penis into his own mouth does not. By extension, under Bruner’s interpretation of the statutory definition of sexual intercourse, when a man and a woman commit the most common sexual act, only the man is engaging in sexual intercourse. Such an interpretation is patently absurd.

We hold that the offense of involuntary deviate sexual intercourse, 18 Pa.Cons.Stat.Ann. § 3123 (Purdon 1983), includes an act that involves insertion of the victim’s penis into the actor’s mouth. Thus, the trial court erred in arresting judgment of involuntary deviate sexual intercourse in this factual situation.

Judgment of sentence is vacated. Order granting the motion in arrest of judgment is reversed and the verdict reinstated. Case is remanded for resentencing. Jurisdiction is relinquished.

      . The definition of “deviate sexual intercourse” was amended effective February 19, 1985. 18 Pa.Cons.Stat.Ann. § 3101 (Purdon Supp.1986). The instant offense occurred on December 29, 1984. The amendment, which expanded the definition to include spousal sexual abuse, is not relevant to the instant case.