text:
    429 A.2d 735
    Commonwealth v. Hayes, Appellant.
    Submitted June 29, 1979.
    Hugh C. Clark, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, GATES and DOWLING, JJ.

       President Judge G. Thomas Gates of the Court of Common Pleas of Lebanon County, Pennsylvania, and Judge John C. Dowling of the Court of Common Pleas of Dauphin County, Pennsylvania, are sitting by designation.

   Judgment of sentence affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    429 A.2d 735
    Commonwealth v. Ishmael, Appellant.
    Submitted March 21, 1980.
    Arthur J. King, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appel-lee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 735
    Commonwealth v. Lee, Appellant.
    Submitted March 21, 1980.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.

LIPEZ, J. filed a memorandum dissenting statement.


text:
    429 A.2d 736
    Commonwealth v. Sutton, Appellant.
    Argued June 11, 1980.
    Craig E. Hammes, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.

      Before BROSKY, WATKINS and CIRILLO, JJ.

       Judge Vincent A. Cirillo, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   The judgment of sentence of the lower court is affirmed.


text:
    429 A.2d 736
    Commonwealth v. Taggert, Appellant.
    Petition for Allowance of Appeal Denied May 4, 1981.
    Argued December 5, 1979.
    Daniel A. Rendine, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WATKINS and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 736
    Commonwealth ex rel. Moser v. Burns, Appellant.
    Argued March 10, 1980.
    Ronald J. Karasek, for appellant; James C. Hogan, submitted a brief on behalf of appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Order affirmed.

SPAETH, J. concurred in the result.


text:
    429 A.2d 737
    Clifford Irons v. Septa and Lesley Stewart, Appellants.
    Reargument Denied Feb. 10, 1981.
    Petition for Allowance of Appeal Denied May 11, 1981.
    Argued September 8, 1980.
    Norman Hegge Jr., for appellants; Sidney I. Leabman, for appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Order of the lower court affirmed.


text:
    November 14, 1980.
    429 A.2d 737
    Bender, etc. v. Lumberman’s Mutual Casualty Company. Appeal of Lumberman’s Mutual Casualty Company. Appeal of Howes Leather Company, Inc.
    Argued November 12, 1979.
    Charles Kirshner, for appellants; Laurance B. Seaman, for Bender, appellee, and Joseph J. Lee, for Howes Company, appellee (at No. 1604 and appellant at No. 31).
    Before HESTER, MONTGOMERY and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 737
    Commonwealth v. Arnold, Appellant.
    Submitted March 21, 1980.
    W. H. Snyder, Jr., for appellant; Daniel L. Howsare, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 737
    Commonwealth v. Oliver Ray Darden, a/k/a Ray Oliver Darden, Appellant.
    Argued December 5, 1979.
    Michael D. Marino, for appellants; John T. Salvucci, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WATKINS and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 738
    Commonwealth v. Dumont, Appellant.

      Submitted April 16, 1980.
    John H. Corbett, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 738
    Commonwealth v. Kimmel Jr., Appellant.
    Submitted April 16, 1980.
    John R. Hoye, Jr., for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 738
    Commonwealth v. Lofton, Appellant.
    Petition for Allowance of Appeal Denied May 18, 1981.
    Submitted June 13,1980.
    Vincent J. Ziccardi, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.

      Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Order of the lower court is hereby affirmed.

BROSKY, J., filed memorandum concurring opinion.


text:
    429 A.2d 739
    Commonwealth v. Nicholson, Appellant.
    Petition for Allowance of Appeal Denied June 18, 1981.
    Argued March 17, 1980.
    Jeffrey Staniels, Assistant Public Defender, for appellant;
    Andrew Cohen, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 739
    Commonwealth v. Padilla, Appellant.
    Argued March 10, 1980.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 739
    Commonwealth v. Rose, Appellant.
    Submitted April 16, 1980.
    E. David Margolis, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 740
    Commonwealth v. Short, Sr., Appellant.
    Submitted April 16, 1980.
    Donald L. Short, Sr., appellant, in propria persona; John L. Brown, Assistant District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 740
    Commonwealth v. Stark, Appellant.
    Submitted April 16, 1980.
    John H. Corbett, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 740
    Commonwealth v. White, Appellant.
    Submitted March 19, 1980.
    James J. Phelan, Jr., for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 740
    Commonwealth v. Yatsko and Spencer, Appellants.
    Submitted October 26, 1978.
    Lester G. Nauhaus, Public Defender, for appellants; Robert E. Colville, District Attorney, for Commonwealth, appellee.
    Before PRICE, HESTER and WATKINS, JJ.
   Judgment of sentences affirmed.


text:
    429 A.2d 741
    Commonwealth ex rel. Oliphant v. Oliphant, Appellant.
    Argued April 16, 1980.
    Bernard S. Shire, for appellant; Patrick J. Rega, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    429 A.2d 741
    Dombrowski v. Dombrowski, Appellant.

      Argued April 16, 1980.
    Carol S. M. McCarthy, for appellant; Donald L. Hankey, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    429 A.2d 741
    Duncan, Appellant, v. First Pennsylvania Bank.
    Argued September 8, 1980.
    Richard S. Mailman, for appellant; Phillip Silverman, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order and judgment affirmed on opinion of the lower court.


text:
    429 A.2d 741
    Hindman v. Felix, Appellant.
    Argued April 15, 1980.
    David R. Levin, for appellant; Arthur M. Lebovitz, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order of the court below affirmed.


text:
    429 A.2d 742
    Lamason et al., Appellants, v. Peckman et al.
    Argued April 15, 1980.
    Thomas W. Smith, for appellants; C. S. Fossee, for appellees.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 742
    Porrett et al., Appellants, v. Bulletin Company et al.
    Argued December 3, 1979.
    Milton M. Borowsky, for appellants; Dennis J. Morikawa, for appellees.
    Before PRICE, WATKINS and HOFFMAN, JJ.
   Order affirmed.


text:
    429 A.2d 742
    Radogna, Appellant, v. City of Northampton et al.

      Argued June 7, 1979.
    Richard Santee, Jr., for appellant; Karl H. Kline, for County of Northampton, appellee, and Robert H. Holland, for Northampton County Prison, et al., appellees.
    Before PRICE, GATES and DOWLING, JJ.

       President Judge G. Thomas Gates of the Court of Common Pleas of Lebanon County, Pennsylvania, and Judge John C. Dowling of the Court of Common Pleas of Dauphin County, Pennsylvania, are sitting by designation.

   Order affirmed.


text:
    November 21, 1980.
    429 A.2d 742
    Armstrong, Appellant, v. Armstrong.
    Argued April 16, 1980.
    Joanne Ross Wilder, for appellant; Henry A. Hudson, Jr., for appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 743
    Commonwealth v. Conley, Appellant.

      Submitted November 16, 1979.
    John H. Corbett, Jr., for appellant; Kathryn L. Simpson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and MONTGOMERY and LI-PEZ, JJ.
   Affirmed.


text:
    429 A.2d 743
    Commonwealth v. Costello, Appellant.
    Submitted March 10, 1980.
    Thomas A. Bergstrom, for appellant; Ann C. Lebow-itz, Assistant District Attorney, for Commonwealth, appel-lee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 743
    Commonwealth v. Darras, Appellant.

      Submitted March 31, 1978.
    Robert E. Kerper, Jr., Assistant Public Defender, for appellant; J. Michael Morrissey, District Attorney, for Commonwealth, appellee.
    Before JACOBS, P. J., and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
   Affirmed.

SPAETH, J. concurred in the result.

JACOBS, Former P. J., did not participate in the decision or consideration of this case.


text:
    429 A.2d 744
    Commonwealth v. Ferebee, Appellant.
    Petition for Allowance of Appeal Denied May 29, 1981.
    Argued March 17, 1980.
    Eric L. Lilian, for appellant; Nancy Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 744
    Commonwealth v. Huffine, Jr., Appellant.
    Submitted March 6, 1980.
    Paul W. Brann, for appellant; Graham C. Showalter, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Affirmed.


text:
    429 A.2d 744
    Commonwealth v. Johnson, Appellant.
    Submitted November 16, 1979.
    John H. Corbett, Jr., for appellant; Robert L. Eberhardt, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and MONTGOMERY and LI-PEZ, JJ.
   The judgment of sentence is affirmed.


text:
    429 A.2d 745
    Commonwealth v. Sherman, Appellant.
    Submitted March 21, 1980.
    James A. Downey, III, for appellant; Michael Kane, District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 745
    Commonwealth ex rel. Moyer v. Facchiano. Appeal of Joanne Moyer.
    Argued September 10, 1980.
    Lorenzo W. Crowe, Jr., for appellant; Milton J. Goodman, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    429 A.2d 745
    Commonwealth ex rel. Wheaton v. Wheaton, Appellant.

      Argued June 11, 1980.
    Thomas E. Waters, Jr., for appellant; Gilbert P. High, Jr., for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 745
    Feingold, Appellant v. Greenstone et al.
    Argued March 10, 1980.
    Joseph Mellace, for appellant; Aaron I. Rappeport, for Greenstone et al., appel-lees; Francis P. Devine, III, for Magil, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 746
    Kerschner v. Kistler, Appellant.
    Submitted March 21, 1980.
    Charles W. Stopp, for appellant; Robert A. Weinert, for appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 746
    Semak et al., Appellants v. McCormick et al.
    Argued November 14, 1979.
    Harry Stump, for appellants; John K. Lewis, for appellees.
    Before CERCONE, P. J., and MONTGOMERY and LI-PEZ, JJ.
   Appeal dismissed.


text:
    429 A.2d 746
    Strong, Appellant v. Gulf and Western et al.
    Submitted September 13, 1979.
    George J. D’Ambrosio, for appellant; Ralph Kent, for Gulf and Western, appellee; and L. Jackson Thomas, II, for Lenape, appellee.
    Before CERCONE, P. J., and WATKINS and LIPEZ, JJ.
   Affirmed.


text:
    429 A.2d 746
    Zitin, Appellant v. Lipschitz.

      Argued March 17, 1980.
    Martin Heller, for appellant; Francis P. Devine, for appellee.
    Before HESTER, WICKERSHAM and HOFFMAN, JJ.
   Order affirmed.


text:
    November 26, 1980.
    429 A.2d 747
    Commonwealth v. Eberts, Jr., Appellant.
    Submitted November 8,1976.
    Simon B. John, Assistant Public Defender, for appellant; Conrad B. Capuzzi, District Attorney, for Commonwealth, appellee.
    Before WATKINS, P. J., and JACOBS, HOFFMAN, CER-CONE, PRICE, VAN der VOORT and SPAETH, JJ.
   Judgment of sentence affirmed.

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


text:
    429 A.2d 747
    Pirl etc., Appellants v. Michaels.

      Argued April 15, 1980.
    Michael J. Murphy, for appellant; Warren D. Ferry, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   The order of the lower court is affirmed.


text:
    December 1, 1980.
    429 A.2d 747
    Bacon, Appellant v. Gatter D. O. et al.
    Argued September 11, 1979.
    Spencer M. Worth-imer, for appellant; Joseph R. Siegert, for appellee.
    Before CERCONE, P. J., and WATKINS and HOFFMAN, JJ.
   Order affirmed.


text:
    429 A.2d 747
    Commonwealth v. Alexander, Appellant.
    Submitted March 21, 1980.
    Edward F. Kane, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 748
    Commonwealth v. Chandler, Appellant.
    Petition for Allowance of Appeal Denied May 4, 1981.
    Argued March 19, 1979.
    Gilbert E. Toll, for appellant; Ann Lebowitz, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and HOFFMAN, JJ.
   Judgment of sentence affirmed.

HOFFMAN, J., filed a memorandum dissenting opinion.


text:
    429 A.2d 748
    Commonwealth v. Conrad, Appellant.
    Submitted December 6, 1979.
    William F. Ochs, Jr., Public Defender, for appellant; J. Michael Morrissey, District Attorney, for Commonwealth, appellee.
    Before BROSKY, WICKERSHAM and ROBERTS, JJ.

       Justice Samuel J. Roberts of the Supreme Court of Pennsylvania is-sitting by designation.

   Order affirmed.


text:
    429 A.2d 748
    Commonwealth v. Jerry, Appellant.
    Submitted September 9, 1980.
    Walter M. Dinda, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appel-lee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 749
    Commonwealth v. Prince, Appellant.
    Argued September 12, 1979.
    Leigh P. Narducci, for appellant; John J. Burfete, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and HOFFMAN, JJ.
   Judgment of sentence affirmed.

HOFFMAN, J., filed a memorandum concurring opinion.

CERCONE, P. J., concurred in the result.


text:
    429 A.2d 749
    Commonwealth v. Strohl, Appellant.
    Submitted March 21,1980.
    Lewis J. Bott, Assistant Public Defender, for appellant; Chester B. Muro-ski, District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 749
    Commonwealth v. Viereckt, Appellant.
    Argued June 10, 1980.
    G. Alexander Bochetto, for appellant; Michelle Goldfarb, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WATKINS and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Judgment of sentence affirmed.


text:
    429 A.2d 749
    Commonwealth ex rel. Patterson v. Patterson. Appeal of Betty Patterson.

      Argued June 9, 1980.
    Michael P. Shay, for appellant; Gus Milides, for appellee.
    Before BROSKY, WATKINS and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Order affirmed.


text:
    429 A.2d 750
    Commonwealth ex rel. Rodgers v. Rodgers. Appeal of Dorothy S. Rodgers.
    Petition for Allowance of Appeal Denied May 11, 1981.
    Submitted September 11, 1980.
    Dorothy S. Rodgers, for appellant, in propria persona; Fred T. Cadmus, 3rd, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    429 A.2d 750
    Commonwealth ex rel. Shames v. Shames, Appellant.
    Argued December 4, 1979.
    Ellis M. Saull, for appellant; Michael Flanagan, for appellee.
    Before PRICE, WATKINS and HOFFMAN, JJ.
   Order affirmed.


text:
    429 A.2d 750
    Delorenzo et al. v. Merola et al. Appeal of Merola et al.
    Rehearing Denied June 1, 1981.
    Petition for Allowance of Appeal Denied Nov. 2, 1981.
    Argued March 20, 1979.
    Andrew I. Puhak, for appellants; Pasco L. Schiavo, for Delorenzos, appellees; Robert J. Gillispie, submitted a brief on behalf of Hazle Realty, appellee; Thomas L. Kennedy, submitted a brief on behalf of the Township of Hazle, appellee.
    Before CERCONE, P. J. and WATKINS and HOFFMAN, JJ.
   Order affirmed.


text:
    429 A.2d 751
    Easley v. Septa and Russell. Appeal of Septa.
    Argued September 8, 1980.
    Stanley J. Sinowitz, for appellants; Arnold Glaberson, for appellees.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Affirmed.


text:
    429 A.2d 751
    Robertson, Appellant, v. Williams.
    Argued June 10, 1980.
    James D. Flower, for appellant; S. Walter Foulkrod, III, for appellee.
    Before BROSKY, WATKINS and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Order affirmed.


text:
    December 5, 1980.
    429 A.2d 751
    Ashcraft, Appellant, v. Lutz et al.
    Petition for Allowance of Appeal Denied May 29, 1981.
    Argued March 4, 1980.
    Donald H. Yost, for appellant; Mark Wood-bury, III, for appellee.
    Before CERCONE, P. J. and WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    429 A.2d 751
    Cole v. Nationwide Insurance Co., Appellant.
    Argued April 15,1980.
    William J. Ivill, Jr., submitted a brief on behalf of Nationwide, appellant; Irving M. Portnoy, for appellee.
    Before CAVANAUGH, HOFFMAN, and VAN der VOORT, JJ.
   Order affirmed.

VAN der VOORT, J. concurred in the result.


text:
    429 A.2d 752
    Commonwealth v. Benninghoff, Appellant.
    Submitted June 13, 1980.
    Arthur J. King, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Order and judgment of sentence affirmed.


text:
    429 A.2d 752
    Commonwealth v. Copeland, Appellant.
    Submitted June 11, 1980.
    Allen N. Abrams, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 752
    Commonwealth v. Couvertier a/k/a Dorsey, Appellant.
    Petition for Allowance of Appeal Denied May 4, 1981.
    Argued June 10, 1980.
    Paul Messing, Assistant Public Defender, for appellant; Andrew B. Cohn, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Judgment of sentence of the court below is affirmed.


text:
    429 A.2d 753
    Commonwealth v. Covert, Appellant.
    Submitted April 15, 1980.
    Frank J. Piatek, for appellant; Walter A. Kieler, for Commonwealth, appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 753
    Commonwealth v. Decker, Appellant.
    Submitted June 13, 1980.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 753
    Commonwealth v. Isgriggs, Appellant.

      Argued September 9, 1980.
    Paul W. Kilgore, for appellant; William L. Thurston, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The judgment of sentence of the lower court is hereby affirmed.


text:
    429 A.2d 753
    Commonwealth v. Romance, Appellant.
    Submitted June 13, 1980.
    Charles J. Aliano, for appellant; Edward P. Little, Jr., District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 754
    Commonwealth v. Phillips a/k/a Africa, Appellant.
    Submitted June 13, 1980.
    Vincent Ziccardi, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.

      Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   The judgment of sentence of the court below is affirmed.


text:
    429 A.2d 754
    Commonwealth v. Shea, Appellant.
    Submitted March 21, 1980.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Ronald Buckwal-ter, District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 754
    Commonwealth v. Stroman, Appellant.
    Argued April 15, 1980.
    John A. Knorr, for appellant; Joe K. Ruddy, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 755
    Commonwealth v. Voytus, Appellant.
    Submitted April 18, 1978.
    Robert W. Lambert, for appellant; Walter S. Vuckovich, District Attorney, for Commonwealth, appellee.
    Before JACOBS, P. J. and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
   Judgment of sentence affirmed.

JACOBS, former P. J., did not participate in the consideration or decision of this case.


text:
    429 A.2d 755
    Commonwealth v. Wheaton, Appellant.
    Submitted September 8, 1980.
    Jeffrey E. Leber, for appellant; Charles P. Mackin, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The judgment of sentence of the lower court is hereby affirmed.


text:
    429 A.2d 755
    Commonwealth ex rel. Dorwart v. Dorwart. Appeal of Shelia Dorwart.
    Argued September 9, 1980.
    Richard E. Santee, Jr., for appellant; E. C. Miller, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The order of the lower court is hereby affirmed.


text:
    429 A.2d 756
    Commonwealth ex rel. Willis v. Hale. Appeal of Robert J. Willis.
    Argued September 8, 1980.
    Thomas J. Calnan, Jr., for appellant; Robert V. Ritter, Jr., for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The order of the lower court is hereby affirmed.


text:
    429 A.2d 756
    DiOrio, Appellant v. DiOrio.
    Petition for Allowance of Appeal Denied March 31, 1981.

      Argued March 18, 1980.
    Oscar N. Gaskins, for appellant; Herbert S. Levin, for appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Final decree affirmed.


text:
    429 A.2d 756
    Inland Credit Corp. v. Al Berman etc., Appellant.
    Argued June 9, 1980.
    Daniel R. Sherzer, for appellant; Parke H. Ulrich, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 756
    Levin, Appellant v. Levin.
    Argued September 9,1980.
    Allen L. Feingold, for appellant; Michael Dignazio, for appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   The order of the Honorable Clement J. McGovern, Jr., dated September 6, 1979 is affirmed, and the appeal from the order of the Honorable Joseph T. Labrum, Jr. dated November 30, 1979 is quashed.


text:
    429 A.2d 757
    Muller etc., et al., Appellants v. Midstates Equipment Service et al.
    Argued June 12,1980.
    Susan B. Bolno, for Muller, appellants; Louis S. Criden, for Midstates, appellee; John W. Frazier, IV, for Mobil Oil, appellee; Joseph F. Van Horn, Jr., for McNichol et al., appellees.
    Before BROSRY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Order of the lower court granting summary judgment in favor of Mobil Oil Corporation is hereby affirmed.


text:
    429 A.2d 757
    Provident Credit Corp. v. Johnson, Appellant. Appeal of Bernice Johnson.
    Argued September 9, 1980.
    Irv Ackelsberg, for appellant; Martin N. Ghen, for appellee.

      Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed on the opinion of the lower court.


text:
    429 A.2d 757
    Russell v. Wallace and Morgenstern, Appellants. Appeal of James F. Wallace.
    Argued September 9, 1980.
    Joseph Mellace, for appellants; Mitchell S. Greenspan, for appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   The order of the lower court is affirmed.


text:
    December 12, 1980.
    429 A.2d 758
    Commonwealth v. Jerome, Appellant.
    Petition for Allowance of Appeal Denied May 4, 1981.
    Submitted November 16, 1979.
    Robert B. Marcus, for appellant; Janet Mos-chetta, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before PRICE, HESTER and CAVANAUGH, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 758
    Commonwealth, Appellant v. McAnally.
    Submitted March 21, 1980.
    Eric B. Henson, Assistant District Attorney, for Commonwealth, appellant; Michael E. Fioretti, for appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.

WICKERSHAM, J., filed a memorandum dissenting statement.


text:
    429 A.2d 758
    Commonwealth v. Meister, Appellant.
    Submitted June 13, 1980.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 758
    Commonwealth v. Wilson, Appellant.
    Submitted March 21, 1980.
    Floyd Wilson, appellant, in propria persona; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 759
    DeAngelis, Appellant v. DeAngelis.
    Argued April 15, 1980.
    Zeno Fritz, for appellant; Carl M. Janavitz, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 759
    Fallenstein v. Collex Inc., Appellant.

      Argued June 11, 1980.
    John Matrullo, for appellant; Daniel C. Barrish, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 759
    Mason v. Mauro, Appellant.
    Argued April 16, 1980.
    John J. Ross, for appellant; Harry R. Ruprecht, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    429 A.2d 760
    Mayer, Appellant v. Molson et al. Vanderslice, Appellant v. Friend Pontiac Inc.
    Reargument Denied March 13, 1981.
    Argued April 16, 1980.
    Edmund L. Olszewski, for appellants; George A. Verlihay, for appellees.

      Before PRICE, BROSKY and MONTGOMERY, JJ.
   Judgments N.O.V. in favor of Friend Pontiac, Inc., affirmed.


text:
    429 A.2d 760
    Murphy, Appellant v. Tallardy.
    Reargument Denied March 18, 1981.
    Argued September 8,1980.
    Robert J. Murphy, submitted a brief on behalf of appellant;
    Stephen J. Polaha, for appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    December 19, 1980.
    429 A.2d 760
    Commonwealth v. Auman, Appellant.
    Submitted March 6, 1980.
    Harold E. Powell, for appellant; Randall E. Zimmerman, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Order and judgment of sentence affirmed.


text:
    429 A.2d 760
    Commonwealth v. Daugherty, Appellant.
    Ralph T. Forr, Jr., Assistant Public Defender, for appellant; Thomas G. Peoples, Jr., District Attorney, for Commonwealth, appellee.
    Before VAN der VOORT, LARSEN and LAVELLE, JJ.

       Justice Rolf Larsen of the Supreme Court of Pennsylvania and Judge John E. Lavelle of the Court of Common Pleas of Schuylkill County, Pennsylvania, are sitting by designation.

   I.

Judgment of sentence on murder, robbery, conspiracy and firearms counts is affirmed.

II.

Judgment of sentence of the robbery count is affirmed. Judgment of sentence on the burglary count is reversed. Judgment of sentence on the counts of simple assault, aggravated assault and firearms violation are vacated, and the case is remanded for resentencing on the firearms count in accordance with this opinion.


text:
    429 A.2d 761
    Commonwealth v. Eaddy, Appellant.

      Argued September 12, 1979.
    David B. Comroe, for appellant; Victor M. Fortuno, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and HOFFMAN, JJ.
   Affirmed.


text:
    429 A.2d 761
    Commonwealth v. (Moser) Keiser, Appellant.
    Argued March 3, 1980.
    Kenneth L. Rotz, Assistant Public Defender, for appellant; Robert G. Teeter, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Affirmed.


text:
    429 A.2d 762
    Commonwealth v. Ortiz, Appellant.

      Submitted March 6, 1980.
    John J. Moran, Assistant Public Defender, for appellant; Sheryl A. Dorney, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    429 A.2d 762
    Commonwealth v. Thompson, Appellant.
    Submitted March 6, 1980.
    Larry E. Stone, Assistant Public Defender, for appellant; Marion E. MacIntyre, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Judgments of sentence affirmed.


text:
    429 A.2d 762
    Commonwealth ex rel. Ferro v. Ferro, Appellant.
    Argued June 12, 1980.
    E. Harris Baum, for appellant; John J. Speese, for appellee.

      Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Order affirmed.


text:
    429 A.2d 762
    Hess et ux., et al. v. Fosbrink et ux., Appellants.
    Petition for Allowance of Appeal Denied April 10, 1981.
    Argued November 11, 1980.
    Simon B. John, for appellants; David B. Reiss, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    429 A.2d 763
    Jarosik et ux., et al. v. Rahal et ux. Appeal of Fred L. Rahal.
    Argued November 15, 1979.
    Michael E. Dunlavey, for appellants; Robert N. Spaeder, for appellees.
    Before PRICE, HESTER and CAVANAUGH, JJ.
   The Final Decree dated May 21, 1979, is affirmed.


text:
    429 A.2d 763
    Lorenz, Appellant v. Paul.
    Submitted March 3, 1980.
    Jordan D. Cunningham, for appellant; William Fearen, for appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Affirmed.


text:
    429 A.2d 763
    Rensselaer Polytechnic Inst. v. Starer, Appellant.
    Argued September 8, 1980.
    Steven J. Fishgold, for appellant; Paul Breen, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The order of the lower court is hereby affirmed.


text:
    December 29, 1980.
    429 A.2d 763
    Commonwealth v. Boyer, Appellant.
    Submitted March 21, 1980.
    Robert A. Longo, for appellant; Ronald L. Buckwalter, District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Order affirmed.


text:
    429 A.2d 764
    Commonwealth v. Harrison, Appellant.
    Submitted April 16, 1980.
    David A. Murdoch, for appellant; David B. Douds, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   The judgment of sentence of the lower court is hereby affirmed.


text:
    429 A.2d 764
    Commonwealth v. Rodgers, Appellant.

      Submitted June 9, 1980.
    Douglas Breidenbach, Assistant Public Defender, for appellant; Joseph Hylan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Judgment of sentence affirmed.

HESTER, J. filed a memorandum concurring opinion in which VAN der VOORT, J., joined.


text:
    429 A.2d 764
    Commonwealth v. Schurz, Appellant.
    Argued September 11,1980.
    Richard A. Schurz, appellant, in propria persona; Ronald T. Williamson, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The order of the lower court is hereby affirmed.

CAVANAUGH, J., filed a memorandum concurring and dissenting statement.


text:
    429 A.2d 765
    Commonwealth v. Stewart, Appellant.
    Reargument Denied April 23, 1981.
    Petition for Allowance of Appeal Denied July 24, 1981.

      Argued December 4, 1979.
    Michael D. Fioretti, for appellant; Virginia Kerr, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, MONTGOMERY and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Affirmed.


text:
    429 A.2d 765
    Commonwealth v. Thomas, Appellant.
    Submitted April 15, 1980.
    D. Stephen Ferito, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.

LIPEZ, J., filed a memorandum dissenting statement.


text:
    429 A.2d 765
    Commonwealth ex rel. Bracken v. Pasta et al. Appeal of Sharon Bracken.
    Submitted April 15, 1980.
    W. E. Buchko, for appellant; Kenneth E. Fox, Jr., for appellees.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.

HOFFMAN, J., concurred in the result.


text:
    429 A.2d 766
    Commonwealth ex rel. Kowlsen et al. v. Kowlsen. Appeal of Dean Kowlsen.
    Argued April 16, 1980.
    James Hook, for appellant; Ewing B. Pollock, for appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    429 A.2d 766
    Easton Theatres v. Wells Fargo Land and MTG., Appellants.
    Argued December 4,1979.
    Hon. Benjamin R. Jones, for appellants; H. Donald Busch, for appellee.
    Before PRICE, WATKINS and HOFFMAN, JJ.
   Order affirmed.


text:
    429 A.2d 766
    Modrak, Appellant at No. 212 v. Consolidated Foods Corp. et al., Appellant at No. 231.
    Petition for Allowance of Appeal Denied May 8, 1981.
    Argued November 13, 1979.
    George Retos, Jr., submitted a brief on behalf of appellant, (at No. 212); Ronald J. Bergman, for appellant, (at No. 231); George Retos, Jr., submitted a brief on behalf of appellee, (at No. 231); Ronald J. Bergman, for appellee, (at No. 212).
    Before PRICE, HESTER and CAVANAUGH, JJ.
   In No. 212 the order is affirmed; in No. 231 the appeal is dismissed as moot.


text:
    429 A.2d 766
    Piotrkowski, etc., Appellants at No. 411 v. Mittelman, Appellant at No. 501.
    Argued December 5,1979.
    Joseph D. Shein, for appellants (at No. 411); Stephen S. Phillips, for appellant (at No. 501); Joseph D. Shein, for appellees (at No. 501); Stephen S. Phillips, for appellee (at No. 411).
    Before PRICE, WATKINS and HOFFMAN, JJ.
   Order affirmed.


text:
    429 A.2d 767
    Spatz et ux. v. Agnone et al., Appellants.
    Argued September 10, 1980.
    Paul R. Mazzoni, for appellants; Maxwell H. Cohen, for appellees.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The order of the lower court is hereby affirmed.


text:
    429 A.2d 767
    Zenstein et ux., Appellants, v. Allen et ux.

      Argued June 11, 1980.
    Robert A. Newman, for appellants; John J. Hart, for appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    432 A.2d 250
    Anderson etc., Appellant v. Zernich Clinic etc., et al.
    Argued April 14, 1980.
    Rebert J. Amelto, for appellant; David H. Trushel, for Zernich, appellee; Paul Kenneth Vey, for Aliquippa Hospital, appellee; James A. McGregor, Jr., for Weyandt and Zeller, appellees.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    January 5, 1981.
    432 A.2d 245
    Commonwealth v. Ball, Appellant.
    Argued September 11, 1980.
    Robert J. O’Shea, Assistant Public Defender, for appellant; David McGlaughlin, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, HESTER and CAVANAUGH, JJ.
   The judgment of sentence of the lower court is hereby affirmed.


text:
    432 A.2d 245
    Commonwealth v. Bertolette, Appellant.
    Submitted June 13, 1980.
    Brian P. Sullivan, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence is affirmed.


text:
    432 A.2d 245
    Commonwealth v. Biggan, Appellant.
    Argued June 9, 1980.
    Robert F. Creem, for appellant; Michael Vedomsky, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Judgment of sentence affirmed.


text:
    432 A.2d 246
    Commonwealth v. Campbell, Appellant.

      Argued June 9, 1980.
    Francis M. Walsh, Assistant Public Defender, for appellant; Joseph Hylan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 246
    Commonwealth v. Cobb, Appellant.
    Submitted March 21, 1980.
    Elaine DeMasse, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 246
    Commonwealth v. Erisman, Appellant.
    Argued March 20, 1980.
    Arthur L. Jenkins, Jr., for appellant; Mary Ann Killinger, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Order affirmed on the comprehensive opinion of Judge Brown.


text:
    432 A.2d 247
    Commonwealth v. Gandy, Appellant.
    Submitted December 6, 1979.
    Roy Davis, Assistant Public Defender, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before BROSKY, WICKERSHAM and ROBERTS, JJ.

       Justice Samuel J. Roberts of the Supreme Court of Pennsylvania, is sitting by designation.

   Judgment of sentence affirmed.


text:
    432 A.2d 247
    Commonwealth v. Gardner, Appellant.
    Submitted March -21, 1980.
    Daniel E. Cohen, for appellant; Richard J. Shiroff, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    432 A.2d 247
    Commonwealth v. Graybill, Appellant.
    Submitted March 21, 1980.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Ronald L. Buckwalter, District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 247
    Commonwealth v. Hammaker, Appellant.
    Petition for Allowance of Appeal Denied Aug. 10, 1981.
    Submitted March 21, 1980.
    Kevin H. Way, Assistant Public Defender, for appellant; William S. Kieser, District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence is affirmed on the comprehensive opinion of Judge Greevy.


text:
    432 A.2d 248
    Commonwealth v. Harris, Appellant.
    Submitted March 21, 1980.
    Peter A. Levin, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 248
    Commonwealth v. McDuffie, Appellant.
    Submitted March 21, 1980.
    Robert F. Pappano, Assistant Public Defender, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 248
    Commonwealth v. Misunas, Appellant.
    Submitted March 21, 1980.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 249
    Commonwealth v. Moody, Appellant.
    Submitted March 21, 1980.
    Joseph P. Zawrotny, for appellant; Eric B. Henson, Assistant District Attorney for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 249
    Commonwealth v. Scott, Appellant.
    Argued June 9, 1980.
    R. Merle Heffner, for appellant; Stewart L. Kurtz, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Judgment of sentence affirmed.


text:
    432 A.2d 249
    Cussler, Appellant v. Cussler.
    Argued September 11, 1980.
    Rosemary Markham, for appellant; John H. Scott, Jr., for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    432 A.2d 249
    Kirson, Appellants v. Elk Mtn. Ski Ctr. Inc.
    Argued June 9, 1980.
    Allan M. Dabrow, for appellants; Paul A. Barrett, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    432 A.2d 250
    Pachel et ux., Appellants v. Sunbeam Corp. etc.
    Argued April 16, 1980.
    Michael R. Ford, for appellants; Robert C. Little, for appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    432 A.2d 250
    Spadaccino v. Spadaccino, Appellant.
    Argued June 11, 1980.
    Frank N. Gallagher, for appellant; John C. Marston, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


author: CERCONE, President Judge:

text:
    435 A.2d 189
    COMMONWEALTH of Pennsylvania, v. Walter WELCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 2, 1981.
    Filed July 2, 1981.
    Reargument Denied Oct. 15, 1981.

      Charles P. Mirarchi, III, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   CERCONE, President Judge:

This is a direct appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County on September 11, 1979. According to the factual posture of the case, at 2:30 p. m. on December 4, 1978, appellant pierced the throat of Harry Parness with an ice pick and robbed him. At the time of the incident, Mr. Parnell was managing a parking garage at 2031 Lombard Street in the City of Philadelphia. Following a non-jury trial, appellant was. convicted of possession of an instrument of a crime, robbery and simple assault. Post verdict motions were denied and appellant was sentenced to concurrent prison terms of one to three years on each count.

Appellant’s allegation that the crimes of robbery and simple assault merge and that the lower court erred in convicting him of both crimes is waived because of appellant’s failure to raise it before the court below. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1975); Commonwealth v. Guenzer, 255 Pa.Super. 587, 592, 389 A.2d 133, 135-136 (1978). However, illegality of sentence is not a waivable issue, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Guenzer, supra, and appellant’s failure to raise this issue does not preclude our present consideration of it. Commonwealth v. Usher, 246 Pa.Super. 602, 371 A.2d 995 (1977).

Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) set forth the standard test 1'or merger of offenses. Therein the Pennsylvania Supreme Court wrote:

The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are ‘successive steps in the same transaction’ but it is whether one crime necessarily involves another, as for example, rape involves fornication, and robbery involves both assault and larceny.

Id., 343 Pa. at 104, 105, 21 A.2d at 921 (emphasis in original). A reading of the above test indicates that a conviction for simple assault merges with a conviction for robbery for purposes of sentencing. After the crime of robbery was established no additional facts were necessary to prove simple assault. See also Commonwealth v. Guenzer, supra, and Commonwealth v. White, 250 Pa.Super. 647, 379 A.2d 617 (1977) conviction for simple assault merges with a robbery conviction under 18 Pa.C.S.A. § 3701(a)(1)(h).

Accordingly, the judgment of sentence for simple assault is vacated, and the case is remanded to the lower court for resentencing on the robbery conviction.

      . 18 Pa.C.S.A. § 907(a) (1973).

      . 18 Pa.C.S.A. § 3701 (1973).

      . 18 Pa.C.S.A. § 2701 (1973).

      . Simple assault is defined as: A person guilty of assault if he:
      (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
      (2) negligently causes bodily injury to another with a deadly weapon; or
      (3) attempts by physical menace to put another in fear of imminent serious bodily injury.

      . Robbery is defined as: (1) a person is guilty of robbery if, in the course of committing a theft, he:
      (i) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; or

        (iii) commits or threatens immediately to commit any felony of the first or second degree.
      (2) An act shall be deemed “in the court of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

      . See Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979); Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977); Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972).


author: HOFFMAN, Judge:

text:
    435 A.2d 190
    Richard J. FLICKINGER and Wilbert D. Chrisner, Jr., Executors of the Estate of Wilbert Dean Chrisner, and Roland T. Keddie and Suzanne M. Keddie, his wife, Appellants, v. Annie V. HUSTON, her heirs and assigns, and all others having any right, title or interest.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed July 2, 1981.
    Reargument Denied Oct. 20, 1981.

      Richard F. Flickinger, Ligonier, for appellants.
    Joseph Bonidy, Greensburg, for appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erroneously denied their claim of title to certain land by adverse possession. We disagree and, accordingly, affirm the order of the lower court.

Appellants are Richard J. Flickinger and Wilbert D. Chrisner, Jr., executors of the estate of Wilbert Dean Chrisner (Chrisner), and Roland T. and Suzanne M. Keddie, a married couple to whom Chrisner’s executors conveyed a portion of the land in question. They commenced this action in 1978 by filing a complaint to quiet title to a thirty-eight-acre tract of land in Ligonier Township, Westmoreland County. The record reveals that none of the parties nor any of their predecessors have ever resided on the tract. Appellants trace their claim through Chrisner, whose interest in the land arose in 1943. The facts giving rise to this litigation may be summarized as follows. In 1922, John J. Will, then the record title holder of the tract, mortgaged the property to Annabelle Will. This mortgage was subsequently assigned to E. B. Shaffer in 1926. On December 1, 1927, John J. Will and his wife conveyed the entire tract to Annie V. Huston, the named defendant in the present case. Subsequently, Shaffer foreclosed on the mortgage, and on May 5, 1933, after a sheriff’s sale, the tract was conveyed to Shaffer by sheriff’s deed. Shaffer conveyed the property to Chrisner’s predecessor in title in 1935, and on June 9, 1943, Chrisner was granted the property. Chrisner died in 1976, still holding title dating back to the 1933 sheriff’s deed to Shaffer. On July 5, 1978, the executors of Chrisner’s estate conveyed a portion of the thirty-eight-acre tract to the Keddies. Sometime thereafter appellants discovered that the foreclosure proceedings through which Shaffer had acquired title in 1933 were defective in that Annie V. Huston, the record title holder at the time, had neither been notified of the proceedings nor had conveyed or released her interest in the property. Thus, in order to clear their title, appellants commenced this action against Annie V. Huston, her heirs and assigns, and all others having any interest in the tract.. Appellants alleged in their complaint that by his acts of ownership and control from 1943 to 1976, Chrisner had acquired title to the tract by adverse possession. Service was effected by publication, and appellee Josephine Murphy subsequently filed an answer in which she averred that Annie V. Hutson was deceased and that she was Ms. Huston’s daughter and only surviving heir. Appellee Murphy specifically denied appellants’ claim of title by adverse possession, and the matter was tried before a court sitting without a jury. The court found appellants’ evidence of adverse possession insufficient and entered an order dismissing their action. Following dismissal of exceptions and entry of a final order by the court en banc, appellants took this appeal.

“It is well settled that he who asserts title by adverse possession must prove it affirmatively.” Robin v. Brown, 308 Pa. 123, 129, 162 A. 161, 162 (1932). “[O]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. . . . Each of these elements must exist, otherwise the possession will not confer title.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted). See also Tioga Coal Co. v. Supermarkets General Corp., 289 Pa.Super. 344, 433 A.2d 483 (1981); Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978); Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976). “An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts.... He must keep his flag flying and present a hostile front to all adverse pretensions.” Smith v. Peterman, supra, 263 Pa.Super. at 161, 397 A.2d at 796 (quotations and citations omitted). In Inn Le’Daerda, Inc. v. Davis, supra, we noted that

“[a] sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated.... It is true that residence is not necessary to make an adverse possession within the statute of limitation; the possession may be adverse by enclosing and cultivating the land . . . but nothing short of an actual possession, permanently continued, will take away from the owner the possession which the law attaches to the legal title; temporary acts on the land, without an intention to seat and occupy it for residence and cultivation or other permanent use consistent with the nature of the property, are not the actual possession required. . . . Such occupation must be exclusive, and of such a character as compels the real owner to take notice of the possession of the disseisor. . . . ”

241 Pa.Super. at 159, 360 A.2d at 213 (quoting Parks v. Pennsylvania Railroad Co., 301 Pa. 475, 481-82, 152 A. 682, 684 (1930) (citations omitted)). Thus, “only acts signifying permanent occupation of the land and done continuously for a twenty-one year period will confer adverse possession.” Smith v. Peterman, supra 263 Pa.Super., at 161, 397 A.2d at 796.

In the present case appellants adduced the following evidence in support of their claim of title by adverse possession. From 1944 until his death in 1976, Chrisner was assessed and paid taxes on the property in question. Since 1976, Chrisner’s executors have paid the taxes. Chrisner employed two men who, over an unspecified period of time, helped clear portions of the land, plant trees and erect fences. Between 1946 and 1955, Chrisner erected a post and rail fence on the one side of the tract which fronts a highway and barbed wire fences on the other sides. There was little evidence regarding the exact nature and location of these fences; one of Chrisner’s neighbors, John T. Bates, testified that the purpose of the barbed wire fencing was “to keep [Chrisner’s] cattle in.” Sometime in the late 1940’s or early 1950’s Chrisner cleared the banks of two streams running through the property and put in field tile to drain a swampy area near the boundary with Mr. Bates’ land. There was some testimony that Chrisner had leased a portion of the land to a neighbor for farming, but this evidence was quite vague and established only that the neighbor had gathered hay and grown corn there for two or three years in the mid-1940’s. Appellants showed additionally that Chrisner had erected an outhouse and a flagpole in approximately 1959, and had permitted the Boy Scouts to use a portion of the tract as a camping ground between 1958 and 1968. Chrisner erected several picnic tables at some unspecified time, and his family and friends picnicked on the property periodically. Finally, appellants presented the testimony of two neighboring property owners, Bates and Clyde Giesey, who stated that they had always believed Chrisner to be the owner of the tract in question.

The lower court concluded that appellants’ evidence of adverse possession “was vague and not tied together so as to be able to conclude that there was a continuous use for 21 years by Wilbert Chrisner and/or his successors in title.” Lower Court Opinion at 5. We agree. Chrisner never lived on the tract, and there is no evidence that he cultivated the land continuously for twenty-one yean. Moreover, lacking concrete evidence of the particular use to which the tract is suited, we cannot conclude that Chrisner’s clearing of two stream banks, drainage of a swampy area, and planting of some trees were any more than “temporary acts on the land, without an intention to seat and occupy it for ... permanent use consistent with the nature of the property.” Inn Le’Daerda, Inc. v. Davis, supra, 241 Pa.Super. at 159, 360 A.2d at 213. The same can be said of the occasional use of the land for picnicking. Smith v. Peterman, supra, 263 Pa.Super. at 162, 397 A.2d at 796. Additionally, appellants’ evidence of fencing erected around the property was vague and inconclusive. In Robin v. Brown, supra, our Supreme Court stated that one who relies on enclosure as proof of adverse possession “must show that [the land] was so substantially and visibly fenced in and the fence was so continuously and substantially maintained for at least twenty-one years as to amount to an assertion ‘against the world’ of his exclusive private ownership of that area of the earth’s surface.” 308 Pa. at 129-30, 162 A. at 162-63. See also Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972). Here, although fencing around the entire tract was apparently completed in 1955, appellants made no effort to show whether the fences were maintained over the next twenty-one years or even to describe their condition at the time of trial. Finally, although the payment of taxes on the property by Chrisner and appellants provides some support for their claim, it cannot rescue an otherwise inadequate evidentiary showing. See Camp Chicopee v. Eden, 303 Pa. 150, 154 A. 305 (1931); Parks v. Pennsylvania Railroad Co., 301 Pa. 475, 152 A. 682 (1930); Hole v. Rittenhouse, 37 Pa. 116 (1860); Green v. Schrack, 16 Pa.Super. 26 (1901). Thus, we conclude that the lower court properly found the evidence of adverse possession insufficient to quiet title in appellants.

Order affirmed.

      . The deeds evidencing this and all other conveyances described herein were duly recorded in the land records of Westmoreland County.

      . In addition to challenging the lower court’s ruling on the issue of adverse possession, appellants contend in their brief that title to the tract should have been quieted in them as holders of valid record title. This is so, appellants explain, because neither Annie V. Huston nor anyone claiming through her ever challenged the validity of the 1933 foreclosure proceedings through which their ultimate predecessor in title, Shaffer, acquired title, and because any such challenge has long been barred by the six-year statute of limitations governing such claims. See Act of March 26, 1785, 2 Sm.L. 199, § 7; as amended by Act of July 8, 1885, P.L. 270, § 1; 12 P.S. § 76 (repealed). Appellants failed to raise this issue in either their pleadings or at trial, however, and instead based their case solely on their claim of title by adverse possession. Thus, the issue has not been preserved for our review. Commonwealth v. National Federation of the Blind, 471 Pa. 529, 370 A.2d 732 (1977); Wenzel v. Morris Distributing Co., 439 Pa. 364, 266 A.2d 662 (1970).

      . Bates testified also that Chrisner’s cattle “were in our garden quite a bit.” There was no further evidence regarding any cattle that Chrisner may have kept on the property.

      . We note additionally that the facts that Chrisner leased an unspecified portion of the land for fanning for two or three years and permitted the Boy Scouts to camp on a portion of the land over ten years constitute, at most, temporary acts which are insufficient to support appellants’ claim. Moreover, the fact that two of Chrisner’s neighbors believed him to be the owner of the property is evidence only of notoriety, and does not augment appellants’ inadequate evidence of actual and continuous possession.


author: HESTER, Judge: BROSKY, Judge,

text:
    435 A.2d 194
    William BANKO, Appellant, v. William MALANECKI and Gail Malanecki, a/k/a Gail Woodard, a/k/a Gail Banko.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Sept. 18, 1981.
    Petition for Allowance of Appeal Denied Dec. 2, 1981.

      Gary V. Skiba, Erie, for appellant.
    Eugene J. Brew, Jr., Erie, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   HESTER, Judge:

Presently before the court is appellant’s appeal from the order of the lower court dated March 31, 1980, wherein the court en banc dismissed all exceptions to the Decree Nisi previously filed and entered the same as a final decree.

During a non-jury trial, only the appellant testified. The salient facts may briefly be summarized as follows: In 1969, appellant’s first wife of over twenty (20) years died. Thereafter appellant developed a serious drinking problem. In 1972, appellant met appellee and they dated until the later part of 1973 when it was agreed that appellant would move in with the appellee. They held a “wedding reception” in January of 1974 to convince people they had married (although in actuality they had not). Appellant listed his house for sale in November, 1973 and closed on it on April 23, 1974.

Trusting her “all the way,” following the closing on his house (on the same day), appellant out of the proceeds of the closing (a) paid off appellee’s mortgage in the exact amount of $2,195.18 and (b) paid off appellee’s auto loan in the exact amount of $3,782.86. With respect to the mortgage:

Q Why did you pay that off for Gail?
A Because I loved Gail and like I said, I thought that we were going to live together and things were eventually going to work out and we were getting married.
Q Did she actually ask you however to pay that bill?
A No, she didn’t.
(R 47a)
And in regard to the satisfaction of the auto loan:
Q And again why did you make that payment?
A Same as with the other payment. I wanted to pay off because I felt that someday we would get married. (R 47a)

In addition to (a) and (b) above, appellant also purchased new furnishings and furniture from Grant’s in the approximate amount of $2,500.00 and contributed additional miscellaneous personalty from his recently sold home of a minimum value of $1,500.00 (total $4,000.00).

Within a week following the closing, the parties opened a joint savings account in the names “ William Banko and Gail Banko”—husband and wife, as tenants by the entireties (Trial Exhibit # 3, both parties being signatories thereto. The original deposit was $3,300.00 (from the proceeds of the sale of the house), which subsequently grew by $300.00 (appellant’s IRS refund check) and by $1,600.00 (appellant’s six week vacation check), to a total of $5,200.00 by June 21, 1974.

During the period of time the parties lived together (January to July, 1974), both were gainfully employed; when appellant received his pay check he would turn it over to the appellee, retaining only $10.00 per week as spending money. Appellee in turn paid all normal monthly bills and expenses.

In July, things started to change, “pressure” started to build, and appellant started to drink. Three or four days later, following an argument, appellee told appellant to leave—to get out—and he did. Subsequently, appellant was hospitalized, and then spent 28 days at Serenity West. Following discharge, appellant moved to the Penn Motel. Appellee corresponded and visited infrequently.

In November, 1974, appellee (with William Malanecki) visited appellant and told him they were married. “She wanted me to wish them good luck, which I did, and not to bother them.” (R 56a).

On July 9, 1974, appellee, signing as “Gail Banko”, withdrew all of the funds from the entireties savings account ($5,232.21 consisting of $5,200.00 principal and $32.21 accumulated interest).

Appellant brought suit in equity against the appellee for the full return of the monies expended on alternate equitable theories of breach of a confidential relationship, breach of an implied covenant agreement between the parties, and on the theory of unjust enrichment. In an effort to reach equity, appellant requested monetary damages, the imposition of an equitable lien, a constructive trust, and a full accounting.

The Chancellor decreed:

(a) Appellant is not entitled to recover the monies spent to pay off either the mortgage or the auto loan;
(b) Appellant is entitled to one-half the furniture or one-half its value; and
(c) Appellant is entitled to one-half the savings account funds.

We affirm in part and reverse in part.

We affirm the final order of the lower court which found that appellant is not entitled to recover the monies spent to pay off either the mortgage or the auto loan. The record is barren of any evidence which rebuts the presumption that said payments were intended as inter vivos gifts. Nor was evidence produced demonstrating that the relationship, at that time, was such that said “presumption of inter vivos gifts” was inapplicable, thus shifting the burden to the donee/appellee to prove that said payments were the voluntary acts of the donor/appellant.

We also affirm that portion of the appealed-from order which founded on the rationale of DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975), concluded that appel lant is entitled to one-half the furniture, or one-half its value in the instant case. Because of the time lapse involved, the expected normal depreciation of personal property, and the fact that appellee has had the exclusive and beneficial use of same since 1974 (excepting the parties’ joint use from January to July, 1974), we direct that this portion of the order be molded to reflect an award of $2,000.00 plus interest from July of 1974.

However, we reverse that portion of the appealed-from order which concludes that appellant is entitled to one-half of the savings account funds. We conclude that appellant is entitled to all of the proceeds from the savings account ($5,232.21) plus interest from July, 1974.

It is undisputed that the parties were never formally married. However, marriage is an indispensible element of the existence of an estate by the entireties. See Masgai v. Masgai, 460 Pa. 453, 333 A.2d 861 (1975); Simpson v. Simpson, 404 Pa. 247, 172 A.2d 168 (1961); Pa. Bank and Trust Co. v. Thompson, 432 Pa. 262, 247 A.2d 771 (1968).

The Union Bank savings account was opened (on April 26, 1974) by the parties as husband and wife—as tenants by the entireties. Additionally, appellee affirmed this status by affixing her signature on the line where the words signature of wife appeared by signing “Gail Banko.”

Appellant testified that he “trusted” the appellee; that she handled the parties’ financial affairs, and that he thought they eventually would marry. We are of the opinion that in April of 1974 when appellee represented to the bank that she was appellant’s wife, this representation has sufficient probative value to establish the existence of a confidential relationship between them with respect only to the creation of the savings account.

As our Supreme Court opined in Estate of Dzierski, 449 Pa. 285, 289, 296 A.2d 716, 718 (1972);

Neither of these two general principles (i. e., the prima facie creation of a gift and the burden of proof placed on the presumed donor, or his representative, to show no gift) applies, however, “where the relation of the parties to each other, or some vicious element in connection with the transaction, is such that the law compels the recipient of the bequest or gift to show that it was the free, voluntary and intelligent act of the person giving it.” Weber v. Kline, 293 Pa. 85, 87, 141 A. 721, 722 (1928). The presence of a confidential relationship sufficient to shift the burden of proof to the alleged donee does not turn on the existence of any specific association of parties. Leedom v. Palmer, 274 Pa. 22, 117 A. 410 (1922). In Kees v. Green, 365 Pa. 368, 75 A.2d 602 (1950), we said that the burden will shift if “circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other weakness, dependence, or trust, justifiably reposed. . . . ”

In Yohe v. Yohe, 466 Pa. 405, 411-412, 353 A.2d 417, 420-21 (1976), our Supreme Court stated:

The imposition of a constructive trust is an equitable remedy designed to prevent unjust enrichment. (Citations omitted). A constructive trust arises “[wjhere a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. (Citations omitted). A transferee is under such an equitable duty to reconvey property to the transferor if the transfer was induced by fraud, duress, undue influence, or mistake, or if the transfer was the result of an abuse of a confidential relationship. Chambers v. Chambers, 406 Pa. 50 at 54, 176 A.2d 673 at 675.

We conclude that with respect to the creation of the saving account, contrary to the Chancellor’s finding, the record does reflect the existence, at that time under consideration, of a confidential relationship. Accordingly, it was incumbent upon the appellee to demonstrate that she did not abuse that relationship.

Appellee did not testify.

We are also convinced that appellee’s subsequent act of withdrawing all of these funds on July 9, 1974, the same month that she demanded appellant remove himself from her home, is relevant in demonstrating the existence and subsequent abuse of a confidential relationship.

We therefore conclude that the appellee took possession of ¿he savings account in question on July 9, 1974 in the amount of $5,232.21 as a constructive trustee and therefore we reverse that portion of the order of the lower court and enter an award in favor of the appellant and against the appellee in the amount of $5,232.21 plus interest from July of 1974.

We therefore affirm in part and reverse in part and direct judgment be entered in favor of the appellant and against the appellee in a total sum of $7,232.21 plus interest from July of 1974.

Affirmed in part and reversed in part.

BROSKY, J., filed a concurring and dissenting opinion.

BROSKY, Judge,

concurring and dissenting:

I concur in the majority’s affirmance of that portion of the lower court’s order holding that appellant is not entitled to recover the monies spent to pay off appellee’s mortgage and auto loan, on the theory that said payment was intended as an inter vivos gift to appellee. The two requisite elements of an inter vivos gift were met here: the intention on appellant’s part to make an immediate gift to appellee, and delivery to appellee that divested appellant of dominion and control of the money. Hengst v. Hengst, 491 Pa. 120, 420 A.2d 370 (1980).

However, I dissent from the majority’s affirmance of the lower court’s decision to award appellant one-half the furniture, or one-half its value. The majority appears to rely upon DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975), a case involving a husband and wife, which is not our situation here. DiFlorido concerned an action in replevin brought by appellee-wife, after the parties were divorced, seeking to recover certain personal property and household furnishings accumulated prior to and during the parties’ marriage.

The lower court in DiFlorido had directed appellant to, inter alia, pay over to appellee one-half of the appraised value of the household goods and furnishings. Appellant-husband contended in part that since he was the sole provider during the marriage and since household goods found in the joint possession of husband and wife presumptively belong to the husband, the appellee should have been found to have no interest in those household goods which the lower court determined to be held by both parties as tenants in common. The Pennsylvania Supreme Court held that although the household furnishings were, with one exception, purchased with appellant’s earnings, both spouses had nonetheless shared the use and possession of the furnishings during the marriage. Challenging the common law presumption that a husband is the owner of the household furnishings, in light of the clear intent of the Equal Rights Amendment, the Supreme Court held that

[f]or the purpose of determining title of household goods and furnishings between husband and wife the property that has been acquired in anticipation of or during marriage, and which has been possessed and used by both spouses, will, in the absence of evidence showing otherwise, be presumed to be held jointly by the entireties. (Emphasis added.)

Id., 459 Pa. at 651, 331 A.2d at 180.

The court based its holding in part upon its belief that neither party should be burdened with proving that such household items were donated to the marital unit.

Clearly, the Supreme Court in DiFlorido was concerned with the status of the parties as (former) husband and wife. The court was confronted with application of the common-law presumption that a husband is the owner of the household goods, which was based upon earlier societal conditions when few women worked outside the home. For this reason, the DiFlorido case is inapposite here, since it clearly is founded upon the marital relationship.

In the case at bar, the parties were not married at the time the household furnishings in question were purchased, nor did they marry thereafter. Therefore, the situation is no different from that of two roommates. The fact that the parties here are male and female should not influence our decision. In the absence of marriage, or a viable contract such as was alleged in Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976), ownership of household furnishings should depend upon title. Here, appellant purchased all of the furnishings with his own funds, and therefore is entitled to them, or to their value, accounting for depreciation.

As to the joint bank account, it is my position that appellant should only be entitled to one-half of the funds. The parties opened the account as “husband and wife,” a fraudulent act since they were not in fact husband and wife. Although we should not legitimize this fraudulent act, we must view it for what it is—as evidence of intent on the part of both parties to open a joint account. From the record it is clear that the account was opened with the intent that it be used by both for the benefit of both. Therefore, although the act of signing as husband and wife was fraudulent, it does not alter the fact that the parties intended that the savings account be a joint account. There is no doubt that the rights of each tenant to a joint bank account are the same even where one tenant contributes the entire sum to the account. In re Cochrane’s Estate, 342 Pa. 108, 20 A.2d 305 (1941). It is equally clear that a joint tenancy is severable by the action, voluntary or involuntary, of either of the parties, and the effect of severance is to make the parties tenants in common. Hayes v. Stephenson, 192 Pa. Super. 392, 161 A.2d 900 (1960).

In In re Beniger’s Estate, 449 Pa. 373, 296 A.2d 773 (1972), our Supreme Court held that where joint tenants have the power to withdraw the funds deposited in a joint account, the power must be exercised for the benefit of both tenants. In Estate of Allen, 488 Pa. 415, 412 A.2d 833 (1980), the Pennsylvania Supreme Court held that a son’s act of withdrawing funds from a savings account of which he and his father were joint tenants, without his father’s knowledge or consent, and thereafter refusing to surrender the funds was in bad faith and terminated the joint tenancy, thereby creating a tenancy in common. In Carson’s Estate, 431 Pa. 311, 245 A.2d 859 (1968), the Supreme Court held that where one of the joint tenants appropriates jointly held property for his own exclusive use, the joint tenancy is severed and becomes a tenancy in common.

Here, the record shows that the bank account was opened April 30, 1974. On July 9, 1974, just two months later, appellee withdrew all of the funds and did not share them with appellant. Four months later, she informed appellant of her marriage to William Malanecki.

While I do not agree with the majority’s finding that there was a confidential relationship, I do find that appellee’s act of withdrawing all the funds from the savings account was in bad faith, since she did not withdraw the funds for the mutual benefit of both parties, but rather, for her own exclusive use. The act severed the joint tenancy and replaced it with a tenancy in common. I, therefore, dissent from the majority’s decision to award appellant the entire amount of the account, and would instead award him one-half of the funds, due to his status as a tenant in common.

I do not find the existence of a confidential relationship here. The majority cites Estate of Dzierski, 449 Pa. 285, 296 A.2d 716 (1972), for the proposition that a confidential relationship may be found to exist if

[circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence or, on the other, weakness, dependence or trust, justifiably reposed....

Here, the record does not show that appellee had an “overmastering influence” on appellant, or that he was unduly dependent upon her. Appellant was financially independent, even if he willingly gave appellee his paychecks to pay bills. The fact that he trusted her does not, by itself, warrant the finding that there was a confidential relationship. It is hoped and expected that two persons who are friends will trust one another. Other than having a drinking problem, appellant was not infirm or in such condition at the time of the relationship so as to have to depend upon appellee to such an extent as would warrant a finding of a confidential relationship.

As to this matter, therefore, I dissent and would hold that appellant is only entitled to one-half of the savings account fund.

Accordingly, I concur in the majority’s holding that the monies spent by appellant to pay off appellee’s loans were intended as a gift and therefore not recoverable by appellant; and dissent from the majority’s holding that appellant is entitled to one-half the value of the furniture, and to all the proceeds from the savings account.

      . Only appellant William Banko filed a timely appeal to the March 31, 1980 Order. Gail Malanecki, a/k/a Gail Woodward, a/k/a Gail Banko did not appeal. Moreover, William Malanecki, a party originally named, was dismissed from this action by stipulation of the parties and by Order of Court dated October 1, 1979.

      . The lower court held that, both parties intended to donate the household furnishings to the “marital unit” and that upon their divorce, the items belonged both parties as tenants in common.


text:
    435 A.2d 199
    Francis LEDERER, v. Mary LEDERER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 4, 1981.
    Filed Sept. 25, 1981.

      Joseph J. Carlin, Philadelphia, for appellant.
    Mary Jo Carr, Philadelphia, for appellee.
    Before CERCONE, President Judge, and SPAETH and CAVANAUGH, JJ.
   CERCONE, President Judge:

This appeal was taken by appellant, Mary Lederer, from the order of the court below in which the court relieved appellee, Francis Lederer, of the obligation to support the parties’ eighteen-year-old daughter, Claire, who is presently enrolled in college. Instead, the court directed that the father should contribute to Claire’s tuition. Because we find that the lower court did not correctly apply the relevant principle of law, we vacate the court’s order and remand for further hearings.

Appellant and appellee, now divorced, are the parents of three children—Francis M., 27, Geralyn, 23, and Claire, 18. (The father has since remarried and has two other children, ages eight and six.) All three of the parties’ children reside with the mother. Although in the past the father paid support towards the upkeep of Francis and Geralyn, the support order was at previous times modified to direct the father to pay sixty dollars a week for the support of Claire. On June 27, 1980, Claire turned eighteen and the father petitioned the court to ask that Claire be removed from the order of support. A hearing was held on this matter and at this hearing the father expressed his willingness to pay money towards Claire’s tuition. The father testified that he had an income of $32,500.00—$21,500.00 from salary and $11,000.00 from a pension.

The mother also took the stand at this hearing and testified that Claire has arranged most of the financing for her tuition through grants and loans, with the exception of two hundred dollars, which the mother paid towards the first semester. In other testimony, the mother indicated that the parties’ oldest child, Francis, has a health problem and works only sporadically. The second child, Geralyn, earns about $175.00 per week in salary, of which she pays $15.00 per week to her mother for room and board. The court made no comment regarding Francis but several times the court expressed the view that Geralyn was paying far too little for board. The mother testified that she herself has a gross income of $18,500.00.

Based upon this evidence, the court ordered that the father’s obligation to make payments towards Claire’s support be terminated but the court directed the father to pay $600.00 per year towards Claire’s tuition, this amount to rise “with costs as they rise.” In its opinion, the court said that Claire’s personal maintenance is her own responsibility.

It is settled law in Pennsylvania that in absence of an agreement to educate “a father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate, earning capacity or income to enable him to do so without undue hardship to himself.” Emrick v. Emrick, 445 Pa. 428, 480-431, 284 A.2d 682 (1971); Hutchison v. Hutchison, 263 Pa.Super. 299, 300, 397 A.2d 1218, 1219 (1979). However, a support order may be entered against a parent for a child’s college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent. Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979).

On this point, the seminal case in Pennsylvania is Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. 640, 190 A.2d 182 (1963). In Sommerville, after deciding that an order for support may be entered for a child attending college, even absent an agreement by the parent to do so, this Court set forth a few of the considerations which should be weighed in such cases. One factor is whether the child is able and willing to successfully pursue his course of studies. A second consideration is the adequacy of the income of the child. A third, as previously noted, is whether the parent has sufficient estate, earning capacity or income to enable that parent to pay support without undue hardship. On this point, we emphasized that the duty of a parent to provide a college education for a child is not as exacting a requirement as the duty to provide food, clothing, and shelter where the child is of tender years and unable to support himself. When it comes to feeding and protecting his offspring, a parent should, beyond the barest necessities, spare no personal sacrifice. However, even though this same exacting requirement should not be demanded in deciding if a parent should provide a college education for a child, we emphasized that this does not mean that a parent should be required to support a child in college only where that parent’s income or estate is such that he could do so without making any personal sacrifices. Some sacrifice may be required however there is no precise standard and therefore this question must be resolved according to the facts of each case.

In the instant case, the court made no findings regarding whether it would be an undue hardship for the father to support his daughter while she attends college. The court in one statement said that Claire must see to her own maintenance, yet in another statement said that the mother’s income was substantial enough to warrant a sharing of the costs of Claire’s maintenance between the parties. The fact is, however, that while the cost of Claire’s tuition was explored during the hearing, the cost of this child’s maintenance was not. The father’s apparent willingness to pay the balance of his daughter’s tuition which is not covered by grants or loans is laudable but it does not take into account the other necessities involved in attending college and in daily life. Therefore, this case must be remanded for a further hearing. The court should consider all of the costs for Claire’s support, including tuition, in the present situation in the light of her father’s and mother’s income.

Reversed and remanded for a new hearing. This court does not retain jurisdiction.