author: POPOVICH, Judge:

text:
    490 A.2d 1377
    COMMONWEALTH of Pennsylvania v. Pasquale MANCINI, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1984.
    Filed March 29, 1985.

      William F. Fox, Jr., Norristown, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Pasquale Mancini, after he was convicted by a jury of burglary and criminal conspiracy. We affirm.

Appellant raises the following issues: (1) whether the trial court erred in granting the prosecution’s petition for an extension of time to commence trial; (2) whether the evidence obtained from the search of appellant’s vehicle and the statement elicited from the appellant should have been suppressed; (3) whether the prosecution failed to prove the corpus delecti of the charge of conspiracy which should have precluded it from introducing appellant’s confession; (4) whether the evidence of burglary was against the law; and (5) whether the trial court erred in failing to question the appellant and his counsel to determine if irreconcilable differences existed between them. The appellant also contends that trial counsel was ineffective (a) for failing to advise appellant adequately on whether he should testify in his own defense at trial; (b) for failing to introduce a toxicology report and for failing to interview and call certain witnesses at appellant’s suppression hearing; (c) for failing to file an answer to the prosecution’s petition for an extension of time to commence trial; and (d) for failing to move for a mistrial when a prosecution witness, Officer Corbin, expressed a personal opinion on the guilt of the appellant during direct examination.

For the most part, appellant’s contentions were addressed adequately by the trial court. The record also shows that an evidentiary hearing was conducted on appellant’s ineffectiveness of counsel claims. This appeal followed.

The facts surrounding the suppression issue which appellant raises were summarized by the trial court as follows:

On November 5, 1981, the residence of David Homiller was burglarized on Norristown Road, Springhouse, Montgomery County. During the burglary, various items including sixty (60) cassette tapes in a black case, stereo equipment, and jewelry were stolen.

On November 7, 1981, Officer Corbin of the Telford Borough Police Department was investigating a hit and run accident. Subsequent to his arrival at the scene of the accident, Officer Corbin received information that the striking automobile was located in the Telford Municipal Parking Lot. Officer Corbin proceeded to the parking lot and found a charcoal black 1966 Chevrolet bearing Pennsylvania license registration number DEW-504.

The officer examined the exterior of the automobile, which matched the radioed description, and found fresh front end damage. The officer also could see that the interior of the car was littered with beer cans and a black tray containing several cassette tapes. An investigation revealed that the automobile was driven by the appellant.

Earlier in the day, on November 7, 1981, Raymond Federsel, an off-duty police officer from the Borough of Telford, had observed the black Chevrolet hop a curb and sideswipe a parking sign. Three males alighted from the vehicle and began to flee. The driver of the automobile was carrying a can of beer and headed in the direction of Officer Federsel. Federsel stopped the driver and requested some identification. The driver of the vehicle identified himself as Pasquale Mancini and also stated that he was twenty (20) years of age.

At that time, Officer Federsel, who was off-duty and in plain clothes, presented his identification badge, advised appellant of his constitutional rights, and detained the suspects for the crime of underage drinking.

At the police station, Officer Corbin proceeded to run a routine records check for any outstanding warrants against appellant.

Detective Kenneth Bright of the Lower Gwynedd Police Department responded to this record inquiry and informed Officer Corbin of the burglary two days earlier. Detective Bright stated that Mr. Mancini was a suspect and requested to view the automobile and question the appellant.

At approximately six-thirty on the evening of November 7, 1981, Detective Bright, along with the victim, David Homiller, arrived at the Telford Police Station. Detective Bright then explained to the appellant the intentions of the officers and their desire to search his vehicle. The appellant read a Consent to Search form and then signed his name.

After thirty minutes of explanation, the appellant, Officers Corbin and Federsel, along with Detective Bright and the victims, proceeded to search the vehicle. The cassette tapes and the jewelry were positively identified by the victims as belonging to them.

Appellant was placed under arrest, but later released into the custody of his father. The appellant and his father, accompanied by appellant’s uncle, then drove voluntarily to the Lower Gwynedd Police Station. After being advised once again of his Miranda rights, the appellant confessed to his role in the Homiller burglary.

Both the prosecution and the appellant agree that the appellant’s arrest by Officer Federsel for underage drinking was illegal. This arrest was illegal because the police officer was off duty during the time that appellant was arrested for the summary offense. See Commonwealth v. Stahl, 296 Pa.Super. 507, 512-514, 442 A.2d 1166, 1169 (1982) (plurality opinion); See also 18 Pa.C.S.A. § 6308 (“A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.”) (Emphasis added).

Under our rules, “a citation shall be issued to £he defendant by a police officer who shall be in uniform or display a badge or other sign of authority, when the offense charged is any other violation of an ordinance or summary offense.” Pa.R.C.P. 51 (A)(3)(a). (Emphasis added). Because the record fails to establish that these procedures were followed, appellant’s arrest is illegal. This is because “a private citizen [or off duty out of uniform police officer] may not make an arrest for a summary offense.” Commonwealth v. Stahl, 296 Pa.Super. at 515, 442 A.2d at 1170 (emphasis added) (where an out of uniform off duty “officer was not acting within the scope of his employment ... [he] was merely acting, in effect, as a doorman, a private citizen without authority in these circumstances to effectuate any type of arrest for a summary offense.”)

However, notwithstanding the fact that the initial arrest was illegal, the prosecution argues that “[t]he only effect of this illegal arrest was to expedite the capture of the defendant.” Brief for the Prosecution at 16.

We recognize that

[t]he relevant test for determining whether a confession following an illegal arrest must be suppressed is:
“... ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (Citations omitted.)
Wong Sun v. United States, supra, 371 U.S. [471] at 488, 83 S.Ct. [407] at 417 [9 L.Ed.2d 441 (1963)]; accord, Brown v. Illinois, supra, 422 U.S. [590] at 597, 95 S.Ct. [2254] at 2259 [45 L.Ed.2d 416 (1975)]; Commonwealth v. Bruno, 466 Pa. 245, 255, 352 A.2d 40, 45 (1976); Commonwealth v. Whitaker, 461 Pa. 407, 412, 336 A.2d 603, 606 (1975); Betrand Appeal, supra, 451 Pa. [381] at 381, 303 A.2d [486] at 490 [(1973)]. The challenged confession may be purged of the primary taint only if (1) it results from an intervening act of free will which is free of any element of coerciveness due to the unlawful arrest, or (2) the connection between the arrest and the confession has become so attenuated as to dissipate the taint. Commonwealth v. Whitaker, supra, 461 Pa. at 414-17, 336 A.2d at 607-08; Betrand Appeal, supra, 451 Pa. at 388-89, 303 A.2d at 490; Commonwealth v. Bishop, 425 Pa. 175, 183, 228 A.2d 661, 666, cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159 (1967); see Wong Sun v. United States, supra, 371 U.S. at 486, 491, 83 S.Ct. at 416, 419. Moreover, once the illegal arrest has been established, the Commonwealth has the burden to establish that the confession “has been come at ‘by means sufficiently distinguishable to be purged of the primary taint’____” Betrand Appeal, supra, 451 Pa. at 389, 303 A.2d at 490.

Commonwealth v. Farley, 468 Pa. 487, 496-497, 364 A.2d 299, 303 (1976).

More specifically, our Supreme Court
has enumerated two factors of major significance in determining the relationship between the illegal arrest and subsequent confession:
“ ‘(a) the proximity of an initial illegal custodial act to the procurement of the confession; and
(b) the intervention of other circumstances subsequent to an illegal arrest which provide a cause so unrelated to that initial illegality that the acquired evidence may not reasonably be said to have been directly derived from, and thereby tainted by, that illegal arrest.’ ”
Betrand Appeal, supra [451 Pa.] at 389, 303 A.2d at 490 (quoting from Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22, 29 (3d Cir.1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966)).

Id.

When these standards are applied to the instant case, we conclude that the confession was obtained by means “sufficiently distinguishable to be purged of the primary taint.”

The record shows that there were intervening events which attenuated the taint.

At the time that appellant was arrested at the station, the police were looking for a vehicle which was used in a hit and run accident. (N.S.T. 16) On November 7, 1981, at 4:40 p.m., the police received an anonymous call which stated that a “mid-sixties”, “black Chevrolet in beat up condition, with left front end damage” was the “striking vehicle” in a hit and run accident and was “last seen north on School Lane.” (N.S.T. 32) Officer Corbin also received information that the caller had followed the vehicle to the Municipal Parking Lot. Corbin went to the location and found “a 1966 Chevrolet bearing Pennsylvania registration DEW-504 parked at the railroad tracks on the north side of the parking lot,” which was unoccupied. (N.S.T. 33) When Officer Corbin approached the vehicle, he “confirmed the fact that it had fresh front end left side damage.” (Id.) The officer also “looked inside the vehicle, and noted several containers of beers, open and closed, also noted a large black tray containing a large amount of cassette tapes in the back right floor of the car, and some stereo equipment.” (Id.) As Corbin approached the car, he got a radio message to return to the station, which was one hundred (100) yards from the parking lot.

After Corbin arrived at the station, he saw the appellant and two white males with Officer Federsel. Corbin advised the appellant of his rights since he was the officer on duty. Appellant stated that he wanted to speak to the officer about “the hit and run accidents.” (N.S.T. 37) As a matter of routine procedure, Officer Corbin called the Ambler police department, which was appellant’s hometown. Cor-bin was told by Detective Ken Bright that a burglary had occurred a day or two before and that a black tray was taken containing a large quantity of cassette tapes. Corbin advised Detective Bright of what he had seen in the car.

At 7:20 p.m., appellant signed a permission to search form and the victims of the burglary came to the station and identified the items in the car. Appellant denied knowledge and stated that the tapes “weren’t stolen.” (N.S.T. 47) Appellant spoke to his father for one half hour and was released at midnight.

Appellant phoned the police station in Ambler after his release and Detective O’Connor told appellant to come to the station. Appellant, appellant’s father and his uncle went to the police station. Detective O’Connor had known appellant because he had been appellant’s juvenile officer. O’Connor advised appellant of his Miranda rights as he had “many times on prior arrest occasions.” (N.S.T. 72) Appellant indicated that he “did not want the presence of an attorney.” (N.S.T. 73) Appellant executed a written waiver in the presence of his father and his friend and gave the detective a written confession. After appellant gave his confession, he was released and was not arrested until approximately three months later in Tempe, Arizona.

Thus, appellant’s release from the police station and his visit to another police station with his father and uncle during which time appellant confessed to the crime was “an intervening act of free will which [was] free of any element of coerciveness due to the unlawful arrest.” Commonwealth v. Farley, 468 Pa. at 496, 364 A.2d at 303.

Additionally, the evidence which was seized from the car was not tainted by the illegal arrest. The record shows that an eyewitness identified appellant’s vehicle as the striking vehicle in a hit and run accident. After an independent examination, Officer Corbin discovered appellant’s vehicle in the Municipal lot. These events were independent from those which led to appellant’s illegal arrest for underage drinking.

When appellant was taken to the police station, he consented to the search of his vehicle. Although appellant had been drinking beer, the prosecution’s evidence established that appellant was capable of making an informed decision. Under these circumstances, the prosecution has met its burden of showing that the evidence was not tainted by the illegal arrest.

In determining whether the consent which was given by appellant after his arrest was valid, we have applied certain guidelines. Although the fact that appellant was under arrest is a relevant factor to consider, we recognize that “the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, 609 (1976). Accord Commonwealth v. Dressner, 232 Pa.Super. 154, 155-157, 336 A.2d 414, 415 (1975). Instead, we have said that “ ‘(t)he issue of whether consent has been voluntarily given is a question of fact which must be determined in each case from the totality of the circumstances.’ ” Commonwealth v. Walsh, 314 Pa.Super. 65, 74, 460 A.2d 767, 771 (1983) (quoting Commonwealth v. Watkins, 236 Pa.Super. 397, 399, 344 A.2d 678, 679 (1975)). Accord Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Additionally, this Court has been “properly reluctant to examine the facts and circumstances de novo without giving due weight to the advantage the hearing court has had by observing the demeanor of the witnesses and the defendant.” Commonwealth v. Dressner, 232 Pa.Super. at 157, 336 A.2d at 415 (emphasis in original).

Some of the relevant factors which we have considered as mitigating factors are (1) if the defendant’s background indicates his understanding of investigating procedures or his understanding of his constitutional rights, Id.; (2) if the suspect has aided an investigation or search, as by providing a key, Id.; (3) if the consenter believed the evidence to be so well concealed that it probably would not be discovered, Id.; (4) the fact of some prior cooperation by the consenter which produced no incriminating evidence, Id.; (5) if the consenter was advised of his constitutional rights prior to giving his consent, Id.; (6) if the suspect felt that the best course of conduct was cooperation given the fact that he had been caught virtually “red-handed”, Commonwealth v. Griffin, 232 Pa.Super. 163, 169, 336 A.2d 419, 421 (1975); and (7) the presence of probable cause to arrest or search the suspect, Commonwealth v. Thompson, 292 Pa. Super. 108, 113-114, 436 A.2d 1028, 1031 (1981).

On the other hand, some of the aggravating factors which have militated against a finding that the consent was voluntary have been: (1) that the defendant was interrogated numerous times while the defendant was in custody for hours, Commonwealth v. Smith, 470 Pa. 220, 228-229, 368 A.2d 272, 277 (1977) (a defendant was questioned while in custody for twelve hours); (2) that the police used express or implied threats to obtain the defendant’s consent, Id,.; (3) that the defendant acquiesced in an order, suggestion, or request of the police, Id.; and (4) the lack of probable cause to arrest or search the subject, Commonwealth v. Thompson, supra.

In reviewing the suppression court’s findings, we are mindful of our responsibility to determine whether they are supported by the record. See Commonwealth v. Jackson, 497 Pa. 591, 595-596, 442 A.2d 1098, 1100 (1982). Additionally, we must consider the prosecution’s evidence and so much of the defendant’s evidence which remains uncontradicted, Id. When so viewed, we conclude that the appellant’s consent was valid.

The suppression court entered the following relevant findings:

The defendant was in custody. His Miranda Warnings were provided him orally and, likewise, in writing. The defendant signed the written rights form. Immediately thereafter, he was presented with a consent, he having orally agreed to a search of his vehicle. And he signed a written consent form to search his car, the black Chevrolet that we have been considering.
It is the Court’s view that where a party is in custody the consent must be preceded by the Miranda Warnings. And that is precisely what took place here. Miranda Warnings are appropriate. And the consent is sufficiently specific.
On the question of the competency of the defendant to execute the consent, I believe, as has been suggested by the testimony, that this defendant had been drinking that day and, perhaps, as he suggests, a combination of Jack Daniels and beer. It may well be that he was — that he had likewise imbibed some drugs. He mentioned specifically Valium and Quaaludes. In any event, though I believe he had been drinking, I believe the officers’ testimony — and two officers testified to this — that he understood where he was, that he understood what he was doing, that he had an awareness of his whereabouts and what was taking place, and that he was competent to execute the consent form.
There was no duress. There was no compunction. There was no force. There were no threats. The consent was purely and unequivocally voluntary. Accordingly, I find that the consent to search the vehicle is a valid consent.
This is a search which took place after the parties arrived; it revealed, of course, the evidence that is the subject of this proceeding. And I find it to be admissible for the reasons I have already indicated. I think it should also be indicated that in addition to the testimony of Officers Federsel and Corbin, who felt that the defendant was competent, it is perhaps most important to note that Detective Kenneth Bright of the Lower Gwynedd Police, who went to Telford on that evening, and who had previously known the .defendant for some years, testified that, in his judgment, this defendant was perfectly normal. He said that he is always high strung, or hyper, if you will, but that he was no more so on this evening than on any other occasions when he would talk to him. That would lend corroboration to the fact that though the defendant had been drinking and there was almost surely an odor of alcohol on his breath, particularly from the beer, nevertheless, he was not under the influence and not thereby rendered incompetent. The evidence found in the vehicle, the tapes, pillow case, and jewelry, which, as I understand it, included an earring, a unicorn, and a Kennedy dollar with a hole in it, are admissible, as having been properly recovered pursuant to the consentual [sic] search.
N.S.T. at 112-115.

We have reviewed the record and conclude that the suppression court’s findings are supported by the record.

There were no overt or covert threats of force which were made against appellant. The record shows that appellant arrived at the police station at 5:00 P.M. Fifteen minutes later, appellant was advised of his rights and was asked to present identification. Officer Corbin then contacted the police station in appellant’s hometown for information. According to Corbin, they “took quite a bit of time explaining everything, making sure he understood what, in fact, he was doing.” N.S.T. at 44. Although the facts concerning the physical layout of the police station are less than clear, the record shows that appellant was with his two friends for at least part of the time, in the main police room and also shows that appellant was questioned by the police officers. The police explained to appellant that they wanted to search appellant’s car in order to determine if items which the police believed to be stolen were in there. Appellant also was told that the victims of the burglary would accompany the police to the scene of the car. Appellant, a streetwise individual, who had prior encounters with the police, then said “there is no problem, there is nothing stolen in the vehicle, (the police) can check the whole thing____” N.S.T. at 43. Then appellant signed the consent form, which was at approximately 7:20 P.M. Under these circumstances, appellant’s consent was valid. See Commonwealth v. Pytak, 278 Pa.Super. 476, 488, 420 A.2d 640, 646 (1980) (“If the consenter believes that the evidence is unlikely to be discovered, the consent was probably voluntary.”) See generally Annotation, 9 A.L.R.3d 858 (1966).

We also note that although the initial arrest was illegal, probable cause arguably existed at the time that appellant was taken to the police station because an eyewitness identification and subsequent police investigation had disclosed independently that appellant was involved in a hit and run accident and was operating a vehicle under the influence of alcohol. 75 Pa.C.S.A. § 3731(c) (warrantless arrest for drunken driving when based upon probable cause is authorized “regardless of whether the alleged violation was committed in the presence of such officer.”); See also Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976) and Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977).

With respect to the issues of trial counsel’s ineffectiveness, we note that these issues were preserved because this is the first opportunity which appellant has had to raise trial counsel’s stewardship. Commonwealth v. Boyer, 298 Pa.Super. 159, 444 A.2d 709 (1982).

The first issue appellant raises regarding trial counsel’s ineffectiveness is that counsel failed to advise him of the alternatives in a defendant’s decision to take the stand and testify on his behalf.

Of course, the standard to apply in reviewing an ineffectiveness claim is a two prong test. It is only when we have determined that the underlying issue is of arguable merit that we need assess whether counsel’s action had a reasonable basis which was designed to effectuate the client’s interests. Commonwealth v. Courts, 315 Pa.Super. 108, 461 A.2d 820 (1983).

We recognize that a defendant’s decision of whether to testify at trial on his behalf is to be made ultimately by the accused after full consultation with counsel. Common wealth v. Thomas, 279 Pa.Super. 413, 419-420, 421 A.2d 267, 270 (1980). The following portions of the record shows that appellant’s counsel fully consulted with him:

Q. Basically, the statement said that he took an individual to the scene and the individual got out of the car and he didn’t know what that individual was doing?
A. Right.
Q. Okay. And that’s basically the version that Mr. Mancini told you?
A. Right.
Q. Did you consider or advise him that since that was his defense it might be advisable for him to take the stand?
A. No, I didn’t advise him to take the stand.
Q. Did you advise him not to take the stand?
A. No, I did not.
Q. What did you advise him?
A. I discussed with him — I asked Pasquale whether he wanted to take the stand. I said that if you take the stand you would be testifying that you drove so and so to — whatever is the co-defendant’s name — to the scene of the crime, you would also be open to cross-examination.
And Pasquale indicated that he did not wish to take the stand. At the conclusion of the Commonwealth’s case and after my motions on demurrer were not granted, I discussed briefly with Pasquale whether he wanted to take the stand, and he said, “No, no way. ” Pasquale also, as I understand it, is familiar with the criminal process, and he knew that
MR. FOX: I object to that, Your Honor. . That was uncalled for.
THE COURT: It’s certainly a true statement, Mr. Fox. He has a long and infamous record in this court.
MR. FOX: That may be the case, Your Honor, but it wasn’t responsive to my question.

BY MR. FOX:

Q. So, basically, then, you have testified that you didn’t advise Mr. Mancini one way or the other, you didn’t advise him to take the stand and you didn’t advise him not to take the stand?
A. No, I usually — I don’t make that decision for my clients. I put it out to them — the possibility of taking the stand out to them and they are the ones who decide whether they want to testify.
Q. Did you advise Mr. Mancini which method or which course of action you thought had the best chance of success?
A. No, I did not.
Q. Did you have an opinion as to which course of action had the best chance of success?
A. Yes, I did.
Q. Which course of action was that?
A. I didn’t think that Mr. Mancini would help his case if he did testify.
Q. And why did you so conclude?
A. Because I thought that he would have a difficult time explaining the existence of the tapes and the other merchandise in the car, the pillow case or whatever in his car, if the other person had committed the burglary when—
Q. But those items were already in evidence at the trial, were they not?
A. That’s correct.
Q. So they were there to damn him, anyway. Would it not have been better to put him on the stand and let him try to explain it away?
A. If he wanted to take the stand, he had the opportunity to take the stand.
Q. No. In your professional opinion as an attorney, would it not have been better to put him on the stand to let him try to explain it away since they were already in evidence?
A. Yes, I think that it would have been to his advantage to take the stand to explain those — to explain that away. However, if Mr. Mancini took the stand and if his testimony — if there were a lot of contradictions in his testimony as a result of cross-examination by the District Attorney, I would think that that would hurt his case more.
Q. Of course, any witness who takes the stand is subject to cross-examination.
A. That is correct.
Q. And you, as an attorney, would advise Mr. Mancini of — as you would any client, I assume — how to — what to watch out for in cross-examination, what tricks?
A. That is correct. And I also advise my clients or discuss the inconsistencies between the statements that they give and physical evidence.
Q. Actually, though, Mr. Mancini’s statement was very consistent with what he would have testified to had he taken the stand, was it not?
A. Yes, on direct examination.
Q. So the — basically, your greatest fear was cross-examination?
A. Yes.

(Evidentiary Hearing, pp. 35-38) (Emphasis added)

Thus, appellant’s decision not to testify on his behalf was made after full consultation; consequently, appellant must bear the burden of his decision not to testify and cannot shift the blame to his attorney. Commonwealth v. Thomas, 279 Pa.Super. at 419-420, 421 A.2d at 270.

Appellant next contends that trial counsel was ineffective for failing to introduce a toxicology report and for failing to call certain witnesses at appellant’s suppression hearing. We disagree.

According to appellant, these witnesses would have established that “the statement and the consent to search were not voluntarily given because the defendant was under the influence of drugs and alcohol to such a degree as to severely impair his mental capacities.” Brief for Appellant at 30.

We recognize that counsel should explore alternatives of “casting a shadow upon the Commonwealth’s witnesses truthfulness.” Commonwealth v. Guerrisi, 297 Pa.Super. 245, 250, 443 A.2d 818, 821 (1982). However, the record shows that counsel’s decision in this area was a tactical one. Appellant’s counsel testified to the following:

Q. Were you also aware at that time that, basically, based on the evidence that you presented at the suppression hearing was Mr. Mancini’s word against the police officer’s word?
A. Yes.
Q. And is it true that the officers who testified — I think it was all three of them — testified that Mr. Mancini, to the best of their opinion, did not appear to be under the influence of alcohol or drugs?
A. Yes.
Q. So Mr. Mancini’s position was inconsistent with the officers’ positions?
A. That is correct.
Q. You had something in your possession, the toxicology report prepared by a third party independent witness which supported Mr. Mancini’s position?
A. That is correct.
Q. You chose not to introduce that report; is that correct?
A. Yes.
Q. Why?
A. I subpoenaed the toxicologist in this case, Dr. Paul Schweda. My detective served Dr. Schweda twice with the subpoena. On the morning of the hearing Dr. Schweda did not arrive at the courthouse, and prior to lunchtime I requested — I asked the judge for an opportunity to try to locate Mr. Schweda to bring him in to testify on behalf of Mr. Mancini. In any event, when I spoke to Mr. Schweda, he advised me that he was the only toxicologist in the lab that day and that it would be very difficult for him to leave. I then asked him about the testimony that he would be giving at the suppression hearing, and Mr. Schweda indicated to me that although Mr. Mancini would have been under the influence of drugs or alcohol, that the amounts in his system would not have prevented him from understanding any questions that would have been put toward him, and that he would have been able to understand anything which was said or asked of him, and that he would have been coherent enough to understand anything that was happening to him.
* * * * * *
Q. Your client had admitted to being at the scene of the burglary and, in fact, had the tapes in his car; is that correct?
A. Yes.
Q. And you knew that the only way probably to suppress it would be to show that he did not consent to the statement; is that right?
A. Yes.
Q. And the Commonwealth had three police officers who had observed the defendant; is that correct?
A. Yes.
Q. And you presented the defendant himself?
A. Yes.
Q. The other people mentioned by Mr. Fox, two people in the car, the victim of the original accident, and Dr. Schweda, would they have added anything to what the defendant could testify himself?
MR. FOX: Objection, Your Honor. She couldn’t possibly know because she never interviewed them.
MRS. KILLINGER: I think she can answer it.
THE COURT: I think she can, too.
THE WITNESS: I don’t think they would have added anything except possibly Dr. Schweda, and I thought that his testimony would have been damaging.

Evidentiary Hearing at 16-17, 40-41 (emphasis added)

Additionally, trial counsel stated that the police officer’s testimony admitted that appellant had consumed drugs and alcohol. Id. Thus, the police officers did corroborate appellant’s claim that he had symptoms of imbibing in alcohol. As a result, counsel’s strategy not to call certain witnesses had a reasonable basis because the toxicology report would have damaged appellant’s claim and the other testimony would have corroborated the details already set forth by the police.

Trial counsel also was not ineffective in failing to use a peremptory challenge on a juror whom appellant instructed to strike and in using a peremptory challenge on a juror whom appellant instructed her to keep.

Trial counsel testified that initially appellant wanted to strike a juror who was acquainted with the District Attorney. Defense counsel advised appellant that in her opinion she “did not think that [the juror] would hurt his case.” Id. at 23. At that point, appellant shrugged his shoulders which counsel interpreted as acquiescence.

With respect to the juror whom appellant claims should not have been stricken, the record shows that neither defense counsel nor the prosecution struck the juror. Instead, because of the sequence of names which appeared on the list, this juror was an alternate juror, who was excused at the end of the trial. Thus, appellant’s claim does not afford him a basis for relief because he has failed to allege how he was prejudiced by counsel’s stewardship.

Appellant also claims that trial counsel was ineffective for failing to file an answer to the prosecution’s petition to extend the time for trial.

This issue also is without merit because appellant had testified during a previous hearing that he was a fugitive and was unavailable for trial during the relevant time period. Counsel cannot be found ineffective for failing to assert a baseless claim. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

Next, appellant contends that counsel was ineffective for failing to move for a mistrial as a result of Officer Daniel Corbin’s testimony. The record shows that counsel posed an objection to the following response during the prosecution’s case:

Q. When you got in touch with Detective Bright, specifically why did you call him?
A. I was in touch with him after contacting the Ambler Police Department. I believe Mr. Mancini had an Ambler address. I was put in touch with Detective Bright, who advised me the defendant, Mr. Mancini, was involved in a burglary.

Notes of Trial Testimony at 177.

Trial counsel objected and the objection was sustained. According to appellant, counsel should have moved for a mistrial because “Officer Corbin’s testimony placed before the jury the personal opinion of Detective Bright ... that Mr. Mancini was guilty of the burglary in question.” Brief for Appellant at 35.

The remark would not have provided appellant a basis for a mistrial because it was not the kind of remark which would have had an unavoidable effect on the jury.

Appellant’s last contention which was not addressed by the trial court concerns whether the trial court erred in failing to question the appellant and his counsel to determine if irreconcilable differences existed between them. We reject appellant’s contention.

After the jury was selected and prior to the swearing of the jury, appellant moved for a continuance and for withdrawal of counsel. The trial court dismissed appellant’s petition on the grounds that it was not acknowledged by a notary.

A request for the dismissal of counsel is addressed to the sound discretion of the trial court. Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129 (1981). Additionally, we recognize that “[a] motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.” Pa.R.Crim.P. 316(c)(ii).

We conclude that the trial court’s decision to dismiss appellant’s request on the day the trial was to begin was denied properly. See Commonwealth v. Jones, 298 Pa.Super. 199, 444 A.2d 729 (1982).

Because the other issues appellant raises were addressed by the trial court, there is no need to comment further.

Judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3502.

      . 18 Pa.C.S. § 903.

      . A well-known commentator also has suggested some additional aggravating factors. These are: “(1) that the arrest occurred late at night; (2) that the arrest was made with a display of weaponry; (3) that the arrest was made by a forcible entry; (4) that the arrestee was placed in cuffs or otherwise kept under close restraint after his arrest; (5) that in a search incident to an arrest the police gained custody of a key or similar means of entry to the place they are asking to search; and (6) that the custody was used as leverage, in the sense that the arrestee was told that he would be released if he gave consent.” LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 8.2.


source: Caselaw Access Project

author: SPAETH, President Judge: TAMILIA, Judge,

license: Public Domain

text:
    491 A.2d 117
    John LANCELLOTTI, Appellant, v. Albert THOMAS and Lillian Thomas.
    Superior Court of Pennsylvania.
    Argued March 21, 1984.
    Filed March 22, 1985.

      Irwin Paul, Philadelphia, for appellant.
    James G. Buckler, Upper Darby, for appellees.
    Before SPAETH, President Judge, and BECK and TAMILIA, JJ.
   SPAETH, President Judge:

This appeal raises the question of whether a defaulting purchaser of a business who has also entered into a related lease for the property can recover any part of his payments made prior to default. The common law rule precluded a breaching buyer from recovering these payments. Today, we reject this rule, which created a forfeiture of the breaching buyer’s payments and unjustly enriched the nonbreaching seller, and adopt § 374 of the Restatement (Second) Contracts (1979), which permits limited restitution. This case is remanded for further proceedings so that the trial court may apply the Restatement rule.

-l-

On July 25, 1973, the parties entered into an agreement in which appellant agreed to purchase appellees’ luncheonette business and to rent from appellees the premises on which the business was located. Appellant agreed to buy the name of the business, the goodwill, and equipment; the inventory and real estate were not included in the agreement for the sale of the business. Appellees agreed to sell the business for the following consideration: $25,000 payable on signing of the agreement; appellant’s promise that only he would own and operate the business; and appellant’s promise to build an addition to the existing building, which would measure 16 feet by 16 feet, cost at least $15,000, and be 75 percent complete by May 1, 1973.

It was also agreed that appellees would lease appellant the property on which the business was operated for a period of five years, with appellant having the option of an additional five-year term. The rent was $8,000 per year for a term from September 1, 1973, to August 31, 1978. A separate lease providing for this rental was executed by the parties on the same date that the agreement was executed. This lease specified that the agreement to build the existing building was a condition of the lease. In exchange for appellant’s promise to build the addition, there was to be no rental charge for the property until August 31, 1973. Further, if the addition was not constructed as agreed, the lease would terminate automatically. An addendum, executed by the parties on August 14, 1973, modified this agreement, providing that “if the addition to the building as described in the Agreement is not constructed in accordance with the Agreement, the Buyer shall owe the Sellers $6,665 as rental for the property ...” for the period from July 25, 1973, to the end of that summer season. The addendum also provided that all the equipment would revert to appellees upon the appellant’s default in regard to the addition.

Appellant paid appellees the $25,000 as agreed, and began to operate the business. However, at the end of the 1973 season, problems arose regarding the construction of the addition. Appellant claims that the building permit necessary to construct the addition was denied. Appellees claim that they obtained the building permit and presented it to appellant, who refused to begin construction. Additionally appellees claim that appellant agreed to reimburse them if they built the addition. At a cost of approximately $11,000, appellees did build a 20 feet by 40 feet addition. In the spring of 1974 appellees discovered that appellant was no longer interested in operating the business. There is no evidence in the record that appellant paid any rent from September 1, 1973, as the first rental payment was not due until May 15, 1974. Appellees resumed possession of the business and, upon opening the business for the 1974 summer season, found some of their equipment missing.

Appellant’s complaint in assumpsit demanded that appellees return the $25,000 plus interest. Appellees denied that appellant was entitled to recovery of this sum and counterclaimed for damages totalling $52,000: $6,665 as rental for the property for the 1973 summer season and the remainder as compensation for “grievous damage to [appellees’] business, its goodwill and its physical operation ...” and appellee Lillian Thomas suffering “nervous illness, pain and suffering inclusive of serious bodily injury and necessitating bed rest and physicians’ supervision for one year after [appellant’s] default.” Defendants’ Counterclaim and New Matter, paras. 9-11. In his answer, Appellant only conceded liability for the $6,665 rent under the terms of the addendum. Plaintiff’s Answer to Counterclaim and New Matter, para. 9. The trial court, sitting without a jury, found against appellant on the original claim, allowing appellees to retain the $25,000 paid by appellant, and for appellees on the counterclaim, allowing them to recover the $6,665 rent.

-2-

At one time the common law rule prohibiting a defaulting party on a contract from recovering was the majority rule. J. Calamari and J. Perillo, The Law of Contracts § 11-26, at 427 (2d ed. 1977). However, a line of cases, apparently beginning with Britton v. Turner, 6 N.H. 481 (1834), departed from the common law rule. The merit of the common law rule was its recognition that the party who breaches should not be allowed “to have advantage from his own wrong.” Corbin, The Right of a Defaulting Vendee to the Restitution of Instalments Paid, 40 Yale L.J. 1013, 1014 (1931). As Professor Perillo states, allowing recovery “invites contract-breaking and rewards morally unworthy conduct.” Restitution in the Second Restatement of Contracts, 81 Colum.L.Rev. 37, 50 (1981). Its weakness, however, was its failure to recognize that the nonbreaching party should not obtain a windfall from the breach. The party who breaches after almost completely performing should not be more severely penalized than the party who breaches by not acting at all or after only beginning to act. Under the common law rule the injured party retains more benefit the more completely the breaching party has performed prior to the default. Thus it has been said that “to allow the injured party to retain the benefit of the part performance ..., without making restitution of any part of such value, is the enforcement of a penalty or forfeiture against the contract-breaker.” Corbin, supra, at 1013.

Critics of the common law rule have been arguing for its demise for over fifty years. See Corbin, supra. See also Calamari and Perillo, supra, at § 11-26; 5A Corbin on Contracts §§ 1122-1135 (1964); 12 S. Williston, A Treatise on the Law of Contracts §§ 1473-78 (3d ed. 1970). In response to this criticism an alternative rule has been adopted in the Restatement of Contracts.

The first Restatement of Contracts (1932) adopted the following rule:

§ 357. Restitution in Favor of a Plaintiff Who Is Himself In Default.
(1) Where the defendant fails or refuses to perform his contract and is justified therein by the plaintiffs own breach of duty or non-performance of a condition, but the plaintiff has rendered a part performance under the contract that is a net benefit to the defendant, the plaintiff can get judgment, except as stated in Subsection (2), for the amount of such benefit in excess of the harm that he has caused to the defendant by his own breach, in no case exceeding a ratable proportion of the agreed compensation, if
(a) the plaintiffs breach or non-performance is not wilful and deliberate; or
(b) the defendant, with knowledge that the plaintiffs breach of duty or non-performance of condition has occurred or will thereafter occur, assents to the rendition of the part performance, or accepts the benefit of it, or retains property received although its return in specie is still not unreasonably difficult or injurious.
(2) The plaintiff has no right to compensation for his part performance if it is merely a payment of earnest money, or if the contract provides that it may be retained and it is not so greatly in excess of the defendant’s harm that the provision is rejected as imposing a penalty.
(3) The measure of the defendant’s benefit from the plaintiff’s part performance is the amount by which he has been enriched as a result of such performance unless the facts are those stated in Subsection (lb), in which case it is the price fixed by the contract for such part performance, or, if no price is so fixed, a ratable proportion of the total contract price.

In 1979, this rule was liberalized. Restatement (Second) of Contracts § 374 (1979) provides:

§ 374. Restitution in Favor of Party in Breach
(1) Subject to the rule stated in Subsection (2), if a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party’s breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach.
(2) To the extent that, under the manifested assent of the parties, a party’s performance is to be retained in the case of breach, that party is not entitled to restitution if the value of the performance as liquidated damages is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss.

Thus the first Restatement’s exclusion of the willful defaulting purchaser from recovery was deleted, apparently in part due to the influence of the Uniform Commercial Code’s permitting recovery by a buyer who willfully defaults. Id., Reporter’s Note at 218. Professor Perillo suggests that the injured party has adequate protection without the common law rule. Choosing “the just path,” he therefore rejects the common law rule, explaining this choice by saying that times have changed. “What appears to be just to one generation may be viewed differently by another.” Perillo, supra, at 50. See also 12 S. Williston, supra, § 1473, at 222 (“The mores of the time and place will often determine which policy will be followed.”).

Many jurisdictions have rejected the common law rule and permit recovery by the defaulting party. See, e.g., Amtorg Trading Corp. v. Miehle Printing Press and Manufacturing Co., 206 F.2d 103 (2d Cir.1953) (noting with approval § 357 of Restatement (First) of Contracts); Nordin Construction Company v. City of Nome, 489 P.2d 455 (Alaska 1971) (citing with approval § 357 of Restatement (First) of Contracts in analyzing a theory of recovery based on unjust enrichment); Freedman v. Rector, Wardens, Vestrymen of St. Mathias Parish, 37 Cal.2d 16, 230 P.2d 629 (1951); Boyce Construction Corp. v. District Board of Trustees of Valencia Community College, 414 So.2d 634 (Fla.Dist.Ct. App.1982) (following rule stated in § 374, Restatement (Second) of Contracts); Nelson v. Hazel, 91 Idaho 850, 433 P.2d 120 (1967) (negligent contractor can recover for benefits conferred, citing comment c of Restatement (First) of Contracts § 357); Broersma v. Sinor, 106 Idaho 155, 676 P.2d 730 (Idaho App.1984) (approving the rule in Restatement (Second) of Contracts § 374); Washington v. Claassen, 218 Kan. 577, 545 P.2d 387 (1976) (breaching purchaser of land cannot obtain recovery where vendor able and willing to perform, citing comment on § 357 Restatement (First) of Contracts); Kitchin v. Mori, 84 Nev. 181, 437 P.2d 865 (1968) (adopting rule of Restatement (First) of Contracts § 357 and holding that even a willful vendee who defaults can recover); Newcomb v. Ray, 99 N.H. 463, 114 A.2d 882 (1955) (following Restatement (First) of Contracts § 357); Comerata v. Chaumont, Inc., 52 N.J.Super. 299, 145 A.2d 471 (1958) (following Restatement (First) of Contracts § 357); Kulseth v. Rotenberger, 320 N.W.2d 920 (North Dakota 1982) (following rule in Restatement (Second) of Contracts § 374); Golden v. Golden, 273 Or. 506, 541 P.2d 1397 (1975) (restitution permitted in land sale contract must be offset by loss to vendor, citing Restatement (First) of Contracts § 357 for this principle); De Leon v. Aldrete, 398 S.W.2d 160 (Tex.Civ.App.1965); Fuller v. Rosinski, 79 Wash.2d 719, 488 P.2d 1061 (1971) (breaching plaintiff entitled to some compensation under § 357 of Restatement (First) of Contracts); Hartford Elevator, Inc. v. Lauer, 94 Wis.2d 571, 289 N.W.2d 280 (1980) (approving of § 357 of Restatement (First) of Contracts).

This development has been called the modern trend. See Quillen v. Kelley, 216 Md. 396, 140 A.2d 517 (1958). See also 12 S. Williston, supra, § 1473, at 222 (cases permitting recovery are now the weight of the authority); 5A Corbin on Contracts, supra, § 1122, at 3 (common law rule is broad statement not supported by the actual decisions). But see 1 G. Palmer, The Law of Restitution 568 (1978) (no valid generalization may be made regarding when a defaulting vendee can recover). It may be that the growing number of jurisdictions permitting recovery have been influenced by the widespread adoption of the Uniform Commercial Code § 2-718. See, e.g., Maxey v. Glindmeyer, 379 So.2d 297 (Miss.1980) (allowing recovery of excess of seller’s actual damages in land sale contract by following the logic of the state statute equivalent to § 2-718 of the Uniform Commercial Code). Indeed, the common law rule is no longer intact even with respect to land sales contracts. See, e.g., Honey v. Henry’s Franchise Leasing Corp., 64 Cal.2d 801, 415 P.2d 833, 52 Cal.Rptr. 18 (1966); McLendon v. Safe Realty Corp., 401 N.E.2d 80 (Ind.App.1980); Newcomb v. Ray, supra; De Leon v. Aldrete, supra; and see 1 G. Palmer, supra, at 596 n. 15 (citing cases).

In Pennsylvania, the- common law rule has been applied to contracts for the sale of real property. Kaufman Hotel & Restaurant Co. v. Thomas, 411 Pa. 87, 190 A.2d 434 (1963); Luria v. Robbins, 223 Pa.Super. 456, 302 A.2d 361 (1973). In such cases, however, the seller has several remedies against a breaching buyer, including, in appropriate cases, an action for specific performance or for the purchase price. See Trachtenburg v. Sibarco Stations, Inc., 477 Pa. 517, 384 A.2d 1209 (1978). See also 5A Corbin on Contracts, supra, § 1145. As long as the seller remains ready, able, and willing to perform a contract for the sale of real property, the breaching buyer has no right to restitution of payments made prior to default. See 5A Corbin on Contracts, supra, at § 1130.

The common law rule has also been applied in Pennsylvania to contracts for the sale of goods. Atlantic City Tire and Rubber Corp. v. Southwark Foundry & Machine Co., 289 Pa. 569, 137 A. 807 (1927). However, Pennsylvania has since adopted the Uniform Commercial Code, which, as to contracts for the sale of goods, has modified the common law rule by 13 Pa.C.S. § 2718(b), which permits a breaching party to recover restitution. See note 2, supra.

The viability of the common law rule permitting forfeiture has also been undermined in other areas of Pennsylvania law. In Estate of Cahen, 483 Pa. 157, 168 n. 10, 394 A.2d 958, 964 n. 10 (1978), the Supreme Court held that assuming that a breaching fiduciary could recover in unjust enrichment, the basis would be Restatement of Contracts § 357 (1932), which allows recovery by a breaching party to the extent that the benefits exceed the losses sustained by the other party.

-3-

In regard to the present case, § 374 of the Restatement (Second) of Contracts represents a more enlightened approach than the common law rule. “Rules of contract law are not rules of punishment; the contract breaker is not an outlaw.” Perillo, supra, at 50. The party who committed a breach should be entitled to recover “any benefit ... in excess of the loss that he has caused by his own breach.” Restatement (Second) of Contracts § 374(1).

This conclusion leads to the further conclusion that we should remand this case to the trial court. The trial court rested its decision on the common law rule. Slip op. of trial court at 7-8. Thus it never considered whether appellant is entitled to restitution, Restatement (Second) of Contracts § 374(1), nor, if appellant is not entitled to restitution, whether retention of the $25,000 was “reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss,” id., § 374(2).

Remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I strongly dissent. In the first instance, the majority does not and cannot cite any Pennsylvania authority adopting the rule cited in § 374 of the Second Restatement of Contracts. Although the ostensible basis for remand is the trial court’s reliance on outmoded law, the majority relies on law so new as to be virtually unknown in this jurisdiction. The law in Pennsylvania has been and continues to be that where a binding contract exists, and there is no allegation that the contract itself is void or voidable, a breaching party is not entitled to recovery. Luria v. Robinson, 223 Pa.Super. 456, 302 A.2d 361 (1978). While our Supreme Court may yet abrogate the forfeiture principle in this Commonwealth, it has not yet seen fit to do so, and we may not usurp its prerogatives, particularly when the result would be unjust.

Secondly, the Uniform Commercial Code § 2718, cited by the majority in (partial) support, is applicable only to the sale of goods, and, while it and some of the equally inapplicable cases referred to by the majority may be part of a trend, the mainstream of contract law in Pennsylvania has not yet been diverted by it. Indeed the identification of the jurisdictions cited as the vanguard of change is for the most part questionable, as of those states relied upon to confer legitimacy on the majority’s somewhat arbitrary conclusion, only one may be termed authoritative.

Lastly, and given the current state of the law, the most important determinant of the proper result in this case is the trial judge’s assessment of the witness’ credibility, here resolved in appellee’s favor. The majority, far from according these findings their due, ignores them, contrary to law and our mandate. Knepp v. Nationwide Insurance Co., 324 Pa.Super. 479, 471 A.2d 1257 (1984).

The trial court correctly points out that the understanding of the parties is clearly evidenced by the agreements they signed. In breaching those agreements, appellant has engaged in what might charitably be termed sharp practice. The facts reasonably support the inference that appellant learned the hoagie business, benefited from the acquired trade and good will at appellees’ place of business, then conducted the hoagie business at its previously owned pizza shop in the following season. Restitution in this instance constitutes a wholly unmerited reward for bad faith. We do not feel that such a result is consistent with the intent of law or the expectations of equity.

      . The parties agree that this date was incorrect, and that the date the parties intended was May 1, 1974.

      . In Pennsylvania, 13 Pa.C.S. § 2718, provides:
      § 2718. Liquidation or limitation of damages; deposits
      (a) Liquidated damages in agreement. — Damages for breach by cither party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.
      (b) Right of buyer to restitution. — Where the seller justifiably withholds delivery of goods because of the breach of the buyer, the buyer is entitled to restitution of any amount by which the sum of his payments exceeds:
      (1) the amount to which the seller is entitled by virtue of terms liquidating the damages of the seller in accordance with subsection (a); or
      (2) in the absence of such terms, 20% of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller.

      . He identifies four types of protection:
      First, the defaulting party’s right to recovery is subject to the aggrieved party’s right to offset his damages. Second, the measure of benefit is limited to the actual enrichment and cannot exceed a ratable portion of the contract price. Third, restitution is denied to the extent that the criteria for a valid liquidated damages clause are present. F’ourth, restitution is denied if the aggrieved party seeks and is entitled to specific performance.
      Perillo, supra, at 50 (footnotes omitted).

      . The assertion in the dissenting opinion that "the majority does not and cannot cite any Pennsylvania authority” allowing a breaching party recovery, dissent op. at 11-12, fails to acknowledge the Supreme Court’s decision in Cahen. While not citing Cahen, the dissenting opinion does cite Luria v. Robbins, 223 Pa.Super. 456, 302 A.2d 361 (1973), but as we have already discussed, we find Luria distinguishable.

      . We do not share the view expressed in the dissenting opinion that "the most important determinant of the proper result in this case is the trial judge’s assessment of the witness[es]’ credibility.” Dissent op., at 11-12. To the contrary, as we have discussed, the trial court did not base its decision on an assessment of credibility but on the common law rule. Thus the court did not even consider the possibility of recovery by the breaching plaintiff. We are remanding so that the trial court may consider whether appellant is entitled to restitution. If the trial court again finds that it was the intention of the parties that the $25,000 be retained in the event of a breach, see slip op. of trial court at 7, then the court must determine whether this sum is reasonable. If the sum is unreasonable,' appellant is entitled to restitution. See Restatement (Second) of Contracts § 374 comment c.


author: MONTEMURO, Judge:

text:
    491 A.2d 123
    AMALGAMATED COTTON GARMENT AND ALLIED INDUSTRIES FUND v. Bernard DION, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1984.
    Filed March 22, 1985.

      Stuart J. Agins, Philadelphia, for appellant.
    Alan F. Markovitz, Philadelphia, for appellee.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

This matter is before the court on the appeal of Bernard Dion from the lower court’s order granting judgment on the pleadings in favor of appellee, Amalgamated Cotton Garment and Allied Industries Fund. The basis of the lower court’s judgment was that, under the Pennsylvania Wage Payment and Collection Law (hereinafter “WPCL”), appellant as an admitted officer of a corporation which had breached an agreement to make contributions to appellee, was individually liable for those contributions. Appellant raises two arguments in this appeal: (1) that the WPCL is preempted by federal law — the Employee Retirement Income Security Act of 1974 (hereinafter “ERISA”), and (2) that the WPCL cannot be construed to impose individual liability on the officer of a delinquent corporation. We find both of these arguments to be without merit.

The facts are as follows: Appellant was an officer and shareholder of Bee and Jay Sportswear, Inc. In accordance with a collective bargaining agreement, Bee and Jay Sportswear, Inc. was obligated to make weekly contributions to appellee, a multi-employer labor trust fund, which in turn was to provide fringe benefits to employees of Bee and Jay Sportswear, Inc. Bee and Jay Sportswear, Inc. breached its agreement with appellee, and failed to remit contributions in the amount of $19,474.18. As a result of this breach, an arbitration award was entered in favor of appellee and against Bee and Jay Sportswear, Inc. Unable to collect the arbitration award, appellee filed a complaint in the instant action against appellant under the WPCL. In his answer, appellant admitted that at the time relevant to these proceedings, he had been an officer and shareholder of Bee and Jay Sportswear, Inc. Appellee moved for judgment on the pleadings on the basis that the WPCL provided that officers of a delinquent corporation could be held personally liable as “employers.” The lower court agreed, and granted judgment in favor of appellee.

We first address appellant’s argument that the WPCL has been preempted by ERISA. That argument is quickly laid to rest, however, since appellant failed to raise this issue in the lower court. Matters not raised below will not be considered for the first time on appeal. Commonwealth v. Natl. Federation of the Blind, 471 Pa. 529, 370 A.2d 732 (1977). Furthermore, we note that had this issue been preserved, the Third Circuit Court of Appeals has found that the WPCL is not preempted by ERISA. Carpenters Health and Welfare Fund of Phila. and Vicinity v. Kenneth R. Ambrose, Inc., 727 F.2d 279 (3d Cir.1983).

Appellant’s second argument is that the WPCL cannot be construed to impose personal liability on the officer of a delinquent corporation. Although no appellate court in Pennsylvania has addressed this issue, it has been addressed on our trial level and by federal courts. See Ward v. Whalen, 18 Pa. D & C 3d 710 (1981); Carpenters Health v. Ambrose, Inc., supra; Amalgamated Cotton Garment and Allied Industries Fund v. J.B.C. Company of Madera, Inc., 608 F.Supp. 158 (W.D.Pa.1984); In re Johnston, 24 B.R. 685 (B.C.W.D.Pa.1982). These cases have all held that the WPCL imposes personal liability on officers for unpaid benefit contributions.

Appellant’s argument is far-fetched. The relevant provisions of the WPCL are: § 260.9a(b), which permits employees or a labor organization to whom any type of wages is payable, to maintain an action for recovery of such unpaid wages; and § 260.2a, which defines “wages” to include fringe benefits, and “employer” to include “every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth.” (emphasis added).

Appellant first tries to create an ambiguity in § 260.-9a(b) by pointing out that, while that action gives employees and labor organizations the right to recover unpaid wages, it does not specify against whom such an action may be brought. Appellant asserts that the term “employer” cannot be understood as the intended object of liability in § 260.9a(b), but that that section can only be interpreted to create liability against a corporation, and not against an officer thereof. Appellant “bolsters” this interpretation by directing our attention to subsections (c), (d), and (e) of § 260.9a. These subsections pertain to the right of the Secretary of Labor and Industry to bring an action on behalf of the employees, or labor organization, and conspicuously states that the claim is against an “employer.” Appellant feels that the omission of the term “employer” from subsection (b) was intentional in light of the exact reference to “employer” in subsections (c), (d), and (e).

We must assume that the legislature intended a reasonable result in constructing a statute. McKinney v. Board of Commissioners of Allegheny County, 488 Pa. 86, 410 A.2d 1238 (1980). Since it is clear that the employees or labor organization may inform the Secretary of Labor and Industry of the delinquency, thereby giving the Secretary the power to pursue the claim against the employer, it is ludicrous to suggest that a claim brought directly by the employees or labor organization themselves is not likewise a claim against the employer. It is undeniable that the definition of “employer” encompasses an officer of the corporation, thus, we construe the WPCL to impose liability here on the officer of a delinquent corporation. We find no support for appellant’s desperate interpretation that the employees or labor organization may bring an action only against the corporation.

Accordingly, we affirm the order of the court below.

      . Act of July 14, 1961, P.L. 637, § 1 et seq., 43 P.S. § 260.1 et seq.

        . 29 U.S.C. § 1001 et seq.

      . The complaint was amended, and the appellant’s answer was in response to the amended complaint.

      . The federal cases have interpreted the WPCL to impose such liability on only the highest ranking corporate officers. We are not asked to determine whether "officer” under the WPCL should be limited to only the highest ranking corporate officers. Appellant contends rather, that the WPCL cannot be interpreted to impose liability on any officer.

      . 43 P.S. § 260.9a(b) provides:
      (b) Actions by an employe, labor organization, or party to whom any type of wages is payable to recover unpaid wages and liquidated damages may be maintained in any court of competent jurisdiction, by such labor organization, party to whom any type of wages is payable or any one or more employes for and in behalf of himself or themselves and other employes similarly situated, or such employe or employes may designate an agent or representative to maintain such action or on behalf of all employes similarly situated. Any such employe, labor organization, party, or his representative shall have the power to settle or adjust his claim for unpaid wages.


author: SPAETH, President Judge:

text:
    491 A.2d 125
    In the Interest of STEVEN J. Appeal of STEVEN J.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed March 29, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   SPAETH, President Judge:

This is an appeal from an adjudication of delinquency and disposition order. Appellant argues that the evidence was insufficient to support the adjudication of delinquency; that the disposition order was erroneous in that it conditioned his release upon payment of restitution and the satisfaction of outstanding judgment orders; and that hearing counsel was ineffective. After an independent review of the record, we have concluded that the opinion of the trial court ably disposes of appellant’s sufficiency claim, and we therefore affirm the adjudication of delinquency. However, since we cannot tell from the record whether the terms of the disposition order impermissibly condition the continued incarceration of a possible indigent person upon payment of restitution, we remand for further proceedings consistent with this opinion. As to appellant’s ineffectiveness claim, we note that counsel on appeal is from the same public defender’s office as hearing counsel. The usual remedy in such a situation is to remand for the appointment of new counsel. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984) (en banc). In the interest of judicial economy, we now order that should appellant appeal from the order entered on remand and raise the same ineffectiveness claim, the trial court shall appoint new counsel to argue that claim.

On November 24, 1982, appellant was charged by petition of delinquency with aggravated assault, reckless endangerment and criminal conspiracy. The incident out of which these charges arose occurred on October 29, 1982. The victim testified that as he walked down a street, he saw appellant, appellant’s brother, and two others watching him from a nearby hillside. N.T. at 45, 47-48. Appellant was carrying a rifle. N.T. at 32. Upon seeing the group, the victim ducked into the vestibule of a nearby bar. When he peered out of the door to see if the group was still there, he saw appellant aim the rifle at him, and he was almost immediately struck in the eye with a pellet. N.T. at 30, 34. The victim was hospitalized for six days, and at the time of the hearing the pellet remained in his eye. N.T. at 34-35. The victim also testified that there was previous animosity between himself and appellant. N.T. at 33-34.

On December 2, 1982, two days before appellant’s eighteenth birthday, a hearing was held on the petition to have appellant adjudicated a delinquent child. After hearing the testimony of the victim, and that of several witnesses presented by appellant, the trial court adjudicated appellant a delinquent child. The court then proceeded to the dispositional phase of the hearing. It noted: that appellant had two previous adjudications of delinquency, one of them for aggravated assault, N.T. at 96-99; that according to the victim’s testimony, appellant had continued, after the victim’s release from the hospital, to threaten the victim, and had made gestures mimicking the firing of a rifle, and had laughed, N.T. at 36-37, 113; that appellant had been placed on probation for each of his previous offenses, and had committed each subsequent offense while on probation, N.T. at 98-99; and finally, that a judgment order imposed against appellant’s parents as a consequence of appellant’s previous offense had remained, for the most part, unpaid, N.T. at 98. These factors led the court to conclude that “a commitment is absolutely essential and necessary.” N.T. at 110. The court also determined that payment of restitution was necessary to teach appellant “that we have laws which apply to him and his brother just the same as they do anybody else; ...” N.T. at 110. The court then outlined and attempted to clarify the disposition it wished to impose:

THE COURT: He’s committed to the Youth Development Center at New Castle, Intensive Treatment Unit, for a minimum of eighteen months. No release to the community is going to be considered until all restitution has been paid and all judgments have been paid. In short, he is not going to be released back into the community to cause more crimes or delinquency and cause more damage to the community until, through his earnings, while he is in placement, he has earned enough to pay the five hundred-some dollars or what it is that he owes to the prior damages that he caused to the City of Clairton, and the damages caused to Móntese Perkins [the victim].
MR. BECHTOLD [probation officer]: Your Honor, I haven’t had any success in residents of the I.T.U. specifically gaining employment—
THE COURT: I think he will gain some employment, not while he is in the I.T.U., but when they come to me to release him to the Line Cottage or to Forestry Camp. MR. BECHTOLD: We can go to Forestry Camp upon release from the I.T.U.?
THE COURT: Oh, yes, and then he will get a job and his earnings will be confiscated and paid over to his victims, and if he absconds or attempts to abscond, he will go back into the I.T.U. I don’t mean to temporize with him at all.
MR. BECHTOLD: That would be 18 months minimum specifically in the I.T.U.?
THE COURT: No, not in the I.T.U. I’m saying before he gets back into the community, it is going to be a year and a half if he behaves himself and if his brother isn’t out in the street with more thuggery, threatening and intimidating and causing difficulty. If his brother is and it comes to my attention, I am not going to release him into that situation to get into more trouble.
MR. RAYL [appellant’s attorney]: To clarify the situation, 18 months at New Castle with authority to place at Line Cottage or Forestry Camp?
THE COURT: They will have to come back to court every six months or nine months for a review, and when they come in, I will find out how he is doing. If he has done all right in the I.T.U. after six months and it makes sense, I may release him from the I.T.U. to the Line Cottage. That’s going to depend on him and how much sense he displays. He hasn’t displayed a bit of sense while he’s been on my probation, not a bit.
N.T. at 110-12.

The disposition ordered by the court, as it appears in the record, is as follows: “Above named child committed to Y.D.C.-New Castle, Pa.-I.T.U. for a minimum of 18 months. To be reviewed June 6, 1983. It is further ordered that said child is not to be released into the community until all restitutions and judgments are paid in full.” Record at 3. The court also ordered appellant to pay restitution to the victim of $132, and entered a judgment order against appellant’s mother in favor of the victim in the amount of $300. Record at 4.

In considering appellant’s argument that the disposition order was erroneous in that it conditioned his release upon payment of restitution and the satisfaction of outstanding judgment orders, it is important to distinguish among the order’s four parts.

The first part of the disposition order orders appellant’s commitment to a youth detention center for eighteen months, reviewable in six months. This order was within the statutory limits, and was a proper exercise of the court’s discretion under the Juvenile Act. See 42 Pa.C.S. § 6352(a)(3), 6353(a).

The second part of the disposition order imposed a judgment order against appellant’s mother, in favor of the victim, of $300. This order, also, was proper. See 11 Pa.C.S. §§ 2002-2004. However, in its opinion in response to this appeal, the trial court conceded that it was without power to condition appellant’s release upon the payment of the judgment order against his mother. As the court recognized, the statutory remedy for non-payment of such an order is limited to an action in assumpsit. Opinion at 9, citing 11 Pa.C.S. § 2003(a), In re Carroll, 260 Pa.Super. 23, 393 A.2d 993 (1978). We agree and therefore will reverse the disposition order insofar as it conditions appellant’s release upon his mother’s payment of her outstanding judgment order.

The third part of the disposition order required appellant to make restitution of $132, subsequently raised to $444. See supra n. 2. We have, in the past, held such orders to be without statutory authority. See In re Evans, 246 Pa.Super. 430, 371 A.2d 914 (1977); In re Gardini, 243 Pa.Super. 338, 365 A.2d 1252 (1976). The legislature subsequently amended the Juvenile Act, however, to give a court the authority to impose “fines, costs or restitution as deemed appropriate as part of the plan of rehabilitation considering the nature of the acts committed and the earning capacity of the child.” 42 Pa.C.S. § 6352(a)(5). See In re Ryan, 277 Pa.Super. 433, 439 n.3, 419 A.2d 1224, 1227 n.3 (1980), appeal dismissed, 499 Pa. 220, 452 A.2d 1018 (1982) (“[o]ne may surmise that § 6352(a)(5) and § 6352(a)(6) were enacted in response to Evans and Gardini") Before a court may impose such a restitution order, however, it must make some inquiry into “earning capacity.” See In re Ryan, supra, 277 Pa.Superior Ct. at 439, 419 A.2d at 1227 (“[i]f appellants mean that before requiring a child to pay a fine, the court must determine the child’s ability to pay, we agree with appellants.”)

In the present case, it is not clear from the record whether the court did make such an inquiry, or whether it had facts available to it, not of record, to cause it to suspect that appellant was not in fact without resources. The court noted that appellant had sufficient funds to attend football games, which were not being applied against the outstanding judgment order, and indicated skepticism that appellant’s mother had in fact been unable to pay for the past two years. N.T. at 100, 105. Yet the court seemed to accept appellant as in fact indigent, for it noted that when appellant’s disposition came before it for review in six months, it would consider altering the placement to enable appellant to earn sufficient money to satisfy the restitution order against him. N.T. at 110-111.

We are also unable to determine the precise terms of the disposition order. We therefore cannot determine whether it impermissibly conditions appellant’s release upon the payment of his outstanding obligation.

We have not previously construed the limits of a juvenile court’s power to condition confinement upon the payment of restitution. However, the principles regarding the payment of fines by adult offenders are established. Our Supreme Court has held that “a state is prohibited from committing its citizens for fines without a reasonable opportunity being afforded to allow them to meet the court’s directive consistent with their respective financial situation.” Commonwealth ex rel. Benedict v. Cliff, 451 Pa. 427, 431, 304 A.2d 158, 161 (1973). While “[there is] no doubt that imprisonment of a non-indigent person who willfully fails to pay fines or costs is permissible,” Com monwealth of Pennsylvania, County of Lancaster v. Rosser, 268 Pa.Super. 116, 122 n.8, 407 A.2d 857, 860 n.8 (1979), before being subject to imprisonment for not paying a fine, the defendant must be given an opportunity to establish his indigency. See Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637, 639 (1980); Commonwealth v. Holm, 233 Pa.Super. 281, 287, 335 A.2d 713, 716-17 (1975). See also Pa.R.Crim.P. 1407 (“[a] court shall not commit a defendant to prison for failure to pay a fine or costs unless it appears after hearing that the defendant is financially able to pay the fine or costs.”) We believe these principles are equally applicable to restitution orders imposed on juveniles.

Applying these principles here, we find ourselves unable to determine whether the disposition order transgresses them. On its face, the order does in fact appear to condition appellant’s release upon the payment of an outstanding restitution order. See supra. If, without any inquiry into his ability to pay having been made, appellant must remain confined beyond the period of confinement imposed for his offenses, simply because he does not pay the restitution order, then the disposition order clearly conflicts with the principles we have noted. However, the trial court may well have intended a very different disposition. From a reading of the hearing transcript and the court’s subsequent opinion, one might surmise that the court intended: that appellant be kept in the detention center, where he would have no opportunity to earn money, for six months, and that this period would sufficiently satisfy the confinement aspect of the disposition that the court had concluded was necessary; that following this period, and assuming appellant’s good behavior, appellant would be placed in a supervised environment, such as a Line Cottage or a Forestry Camp, where he would be able to work off his restitution obligation to the victim; and that following this period, provided it did not exceed three years, appellant would be released. Such a disposition does not condition appellant’s release upon the payment of the restitution order. Rather, it imposes upon appellant an obligation to pay restitution, as an essential element of the disposition, and offers him the means to do so; it would clearly be designed to effectuate the purposes of the Juvenile Act “to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefore a program of supervision, care and rehabilitation.” 42 Pa.C.S. § 6301(b)(2). If this is the disposition the trial court intended, however, its terms must appear on the face of the order.

The adjudication of delinquency is affirmed. The order of disposition is reversed to the extent that it conditions appellant’s release upon satisfaction of the judgment order against his mother, and the case is remanded for supplementation of the record and clarification of the order, consistent with this opinion. Should appellant appeal from the order entered on remand and again raise a claim of ineffectiveness, the trial court shall appoint new counsel to argue that claim. Jurisdiction is relinquished.

      . The amount of restitution was raised by $312 on January 24, 1983. Record at 7. The reasons for this do not appear in the record. We note, however, that on the date of the hearing the pellet had not yet been removed from the victim’s eye.

        . The Supreme Court, in Benedict, relied on Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), for the proposition that a state may not incarcerate an indigent defendant solely for inability to pay a fine. The United States Supreme Court has recently qualified Williams in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In Bearden, the Court noted that a state could not revoke probation for non-payment of a fine unless it determined that a probationer willfully refused to pay despite possessing resources to do so; failed to make bona fide efforts to pay; or the state lacked alternative means to further its interests in punishment or deterrence. Bearden, however, did not disturb the requirement at issue here, that an inquiry into ability to pay is a prerequisite to incarceration for non-payment. See infra.

      . 42 Pa.C.S. § 6353(a) provides that “[n]o child shall initially be committed to an institution for a period longer than three years or a period longer than he could have been sentenced by the court if he had been convicted of the same offense as an adult, whichever is less.” Aggravated assault may be classed as a felony of either the first or the second degree, under the circumstances in the present case. See 18 Pa.C.S. §§ 2702(a)(1), 2702(a)(4), 2702(b). As such, it would carry a maximum penalty of either twenty or ten years, respectively. See 18 Pa.C.S. §§ 1103(1), 1103(2).


text:
    491 A.2d 130
    Theodore PADEZANIN, Appellant, v. Dorothy PADEZANIN.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1984.
    Filed March 29, 1985.

      Debra A. Genevie, Beaver Falls, for appellant.

      Thomas W. Minett, Assistant District Judge, Elwood City, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   SPAETH, President Judge:

This is an appeal from an order distributing marital property and awarding counsel fees and alimony to appellee. We reverse and remand for further proceedings.

The trial court determined that appellant’s vested Railroad Retirement Pension was marital property and valued it at $64,090. The court let appellant keep his pension but it compensated appellee by distributing to her other marital property equal in value to one-half the value of the pension. Appellant argues that his pension may not be distributed as marital property, and that therefore other marital property may not be distributed to appellee to compensate her because he kept the pension. We agree. In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), the Supreme Court held that § 231m of the Railroad Retirement Act, 45 U.S.C. § 231m, which provided that creditors could not attach a Railroad Retirement Pension and that the pension could not be anticipated, prevented distribution of the pension to the railroad employee’s former spouse, and also prevented an offsetting award of other property to the former spouse. Id. at 585-90, 99 S.Ct. at 810-13. Since here the trial court made an offsetting award, we must reverse its order and remand so that it may reconsider its property distribution. We note that on remand the court should consider the effect of a 1983 Amendment to the Railroad Retirement Act that allows at least some of the benefits to be valued as marital or community property and then distributed upon divorce. See 45 U.S.C. § 231m (b)(2).

Appellant also argues that the trial court abused its discretion in requiring him to pay alimony and one-half of so much of appellee’s counsel fees as were attributable to the divorce and property distribution. We do not address these arguments, for on remand the trial court will have to reassess the respective positions of the parties, and in light of that reassessment will have to reconsider the issues of alimony and counsel fees. We shall, however, address two other arguments appellant makes regarding counsel fees, for they will no doubt arise again on remand and judicial economy will be served by addressing them now.

The master recommended that appellant pay a percentage of counsel fees attributable to a divorce action filed by appellee in 1978 but dismissed before the commencement of this action. The master also recommended that appellant pay a percentage of appellee’s counsel fees attributable to a prior support action by appellee. Appellant’s exceptions to the master’s report challenged both these recommendations. The trial court agreed with appellant that counsel fees attributable to the prior divorce action should not be awarded, but it awarded counsel fees attributable to the prior support action. Incident to this decision, the court, without hearing and on the basis of its own examination of the record of the prior divorce action, found that the value of appellee’s counsel’s services in the prior divorce action was $200. It then subtracted that amount from the amount of counsel fees awarded appellee as attributable to this action.

In a divorce action, a trial court may award reasonable counsel fees and expenses. See 23 P.S. § 502. However, the fees and expenses awarded must be attributable to the divorce action. A proceeding for support is a separate action, authorized by 48 Pa.C.S. § 131 (suspended as to procedure by Pa.R.C.P. 1910.31, 42 Pa.C.S.). The support law does not authorize the award of counsel fees and expenses. A court is therefore powerless to award counsel fees and expenses in a support action. See Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964).

The trial court reasoned that it nevertheless could award appellee counsel fees attributable to the prior support action because the prior support action was “related to” this divorce action in that in this divorce action appellee counterclaimed to recover support arrearages. Slip op. of tr. ct. at 8. We are not persuaded by this reasoning. A claim to recover support arrearages is not a proper counterclaim to a divorce complaint. Pa.R.C.P. 1920.15 (counterclaim in divorce action “may set forth any other matter which under the Divorce Code may be joined with an action of divorce”).

On remand, therefore, the trial court shall make no award of counsel fees and expenses attributable to the prior support action. Moreover, we agree with appellant that the court acted improperly in finding, without any hearing, that the value of appellee’s counsel fees attributable to the prior divorce action was $200. On remand the court shall determine appellee’s reasonable counsel fees and expenses attributable to the present action alone, without reference either to the prior divorce action or to the prior support action.

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . § 231m as amended provides:
      § 231m. Assignability; exemption from levy
      (a) Except as provided in subsection (b) of this section and the Internal Revenue Code of 1954 [26 U.S.C.A. § 1 et seq.], notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated.
      (b)(1) This section shall not operate to exclude the amount of any supplemental annuity paid to an individual under section 231a(b) of this title from income taxable pursuant to the Federal income tax provisions of the Internal Revenue Code of 1954 [26 U.S.C.A. § 1 et seq.].
      (2) This section shall not operate to prohibit the characterization or treatment of that portion of an annuity under this subchapter which is not computed under section 231b(a), 231c(a), or 231c(f) of this title, or any portion of a supplemental annuity under this subchapter, as community property for the purposes of, or property subject to, distribution in accordance with a court decree of divorce, annulment, or legal separation or the terms of any court-approved property settlement incident to any such court decree. The Board shall make payments of such portions in accordance with any such characterization or treatment or any such decree or settlement.
      This section as amended became effective with respect to annuity amounts payable for months beginning after the date of its enactment (August 12, 1983) Id. note.