author:
      CIRILLO, Judge:
      HESTER, Judge,

text:
    500 A.2d 158
    COMMONWEALTH of Pennsylvania, Appellant, v. Kirk FRAZIER.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Oct. 25, 1985.

      Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Jeffrey P. Shender, Assistant Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

The Commonwealth of Pennsylvania appeals the sentence imposed by the trial court following non-jury trial in the Court of Common Pleas of Philadelphia County. We affirm.

The Honorable Victor J. Dinubile, Jr. found appellee guilty of attempted involuntary deviate sexual intercourse, unlawful restraint, corrupting the morals of a minor, indecent assault, and indecent exposure. Appellee was the stepfather of the victim. On the evening of the incident appellee accompanied the victim to the home of her grandmother. Upon arriving, appellee took the victim directly to the basement where he began to choke her and threatened to rape her. Appellee then forced the victim to commit an act of sodomy upon him. While still choking the victim, he then attempted to commit a similar act upon her. Immediately after the incident, appellee gave the victim a quarter to purchase a newspaper. The victim used the quarter to phone police, who arrested appellee shortly thereafter.

Following appellee’s conviction, the trial judge postponed sentencing and ordered a presentence investigation and psychiatric evaluation. Subsequently, appellee was sentenced to a term of imprisonment of not less than 4 months nor more than 10 years for the attempted involuntary deviate sexual intercourse, and concurrent terms of 4 months to 2 years for unlawful restraint and corrupting the morals of a minor. Sentence was suspended on the remaining two counts. Following sentencing, the Commonwealth filed a timely motion for reconsideration of sentence. The motion was denied. Pursuant to 42 Pa.C.S. § 9781(b), the Commonwealth filed this appeal asserting two issues for this Court to consider. Appellant first argues that the trial judge failed to consider the “totality of the circumstances” when sentencing appellee. We find no merit in this argument.

The Sentencing Code requires: “In determining the sentence to be imposed, the court shall, except where a mandatory minimum applies, consider and select one or more of the following alternatives: (1) An order of probation; (2) a determination of guilt without further penalty; (3) partial confinement; (4) total confinement; (5) a fine.” 42 Pa.C.S. 9721(a). When choosing from among these alternatives, the sentencing court must consider the particular circumstances of the offense and the character of the defendant in reaching its determination. Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985); Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984). In addition, the sentence must be consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant. 42 Pa.C.S. 9721(b); Commonwealth v. Parrish, supra; Commonwealth v. Martin, supra. These are the standards that must be followed by the sentencing judge when selecting a sentencing alternative. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1287 (1978); see also Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984); Commonwealth v. Martin, supra.

The record reveals that the trial judge delayed sentencing after appellee’s conviction, and ordered a presentence investigation and psychiatric evaluation to better determine a proper sentence. The trial judge reviewed both reports and at the sentencing hearing had the opportunity to consider arguments by counsel, observe appellee, and listen to the testimony of the victim’s mother (appellee’s wife). The trial judge also heard from appellee’s sex-therapy counselor, who testified that appellee had made progress since his arrest:

Q. Do you feel there is hope?
A. The prognosis is very good, but I can appreciate that someone evaluating Mr. Frazier on a one-time basis, looking at his past history, would see a lot of trouble, but in the course of knowing Mr. Frazier now for six months or so, I see him working hard from his end to make this work, and also see his wife working very hard to make their marriage relationship work.
Q. Would you explain to the Judge the nature of your meetings with Mr. Frazier and what kind of help you offer Mr. Frazier, and what help he has sought from you? A. O.K. Your Honor, I first met with Mr. Frazier on March 15, and we have been meeting once a week, and during that time I would say — well, the therapy was begun not at his own initiation but by an outside source, and during the course of our meetings Mr. Frazier initially posed some resistance to treatment.
He wanted to make sure that the therapy was not part of the legal machinery and that we would have a confident therapy that would prove to be effective during the course of the treatment, and during the treatment I have seen Mr. Frazier bring more and more emotional material into our sessions, and there has been an increased trust between us.
I received his permission to meet with his wife separately, and eventually I would recommend that I meet with the two of them together. In working with both him and his wife, I have found that they are two people who are working very hard to overcome the problem that has occurred in their marriage relationship, and to successfully proceed with their married life and in raising their children.

At the close of the sentencing hearing, the trial judge imposed sentence, stating seven reasons for his determination: 1) appellee agreed to a stipulated trial in which the juvenile victim was saved the trauma of having to testify; 2) the psychiatric evaluation recommended out-patient sex counseling; 3) the presentence report recommended sex-therapy rather than incarceration; 4) the mother of the victim pleaded to the court to keep her family intact and not to impose incarceration; 5) appellee was contrite; 6) appel-lee was already participating in a sex-therapy program; and 7) appellee’s employment background was good.

A sentencing court is given broad discretion to inquire into the personal character of the defendant. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); see also Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980). Among those factors used to determine a defendant’s potential for rehabilitation is his or her manifestation of social conscience and responsibility through contrition, repentance, and cooperation with law enforcement agencies. Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622, (1980); Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982).

We find that the trial judge was well within the parameters of the Sentencing Code. The fact that the court made no specific reference to the factors set forth in the Code is not fatal, as long as it is clear that the court considered the sentencing factors. Commonwealth v. Royer, supra; see also Commonwealth v. Wareham, 259 Pa. Super. 527, 393 A.2d 951 (1978). The trial court did not overlook any pertinent facts in reviewing the circumstances of the crime and appellee’s background. In short, we are satisfied that the trial judge considered the “totality of the circumstances,” and in an exercise of sound discretion imposed a sentence that struck a fair balance between punishment and rehabilitation.

Appellant contends that the sentencing judge unreasonably deviated from the Sentencing Guidelines promulgated by the Pennsylvania Commission on Sentencing by sentencing appellee to a term of imprisonment below the recommended Guideline sentence. The Sentencing Guidelines recommend the following sentences for the type of offense appellee was convicted of:

AGGRAVATED MITIGATED

MINIMUM RANGE MINIMUM RANGE MINIMUM RANGE

30-54 months 54-68 months 22-30 months

In this State, the selection of sentence has always been within the sound discretion of the sentencing judge. The sentencing judge must also follow the standards set by the Sentencing Code discussed supra. Commonwealth v. Parrish, supra; Commonwealth v. Royer, supra; Commonwealth v. Martin, supra; see also Commonwealth v. McCall, 320 Pa.Super. 473, 467 A.2d 631 (1983).

Many of our cases have used the term “Guidelines” when referring to .those standards under the Sentencing Code. See Commonwealth v. Bedleyoung, 319 Pa.Super. 323, 466 A.2d 180 (1983); see also Commonwealth v. Moore, 307 Pa.Super. 560, 453 A.2d 1029 (1982). “Perhaps confusion may be avoided in the future if we refer to ‘guidelines’ only when we are considering the Guidelines developed by the Commission on Sentencing.” Commonwealth v. Royer, supra, 328 Pa.Super. at 66, 476 A.2d at 455.

Although the Sentencing Guidelines are found within the Sentencing Code at 42 Pa.C.S. 9721(b), it was not the intention of the Legislature to adopt the Guidelines as a way to preclude judicial discretion, as the trial court pointed out, quoting from the fact sheet distributed by former Representative to the General Assembly Anthony Scirica:

Mandatory sentences do not work. It is impossible to legislatively propose a single just sentence for all persons convicted of a particular crime and variations in sentencing necessarily result from taking into account individual differences in each case. Furthermore, mandated sentences fail to consider the problem of jury nullification, or the practical considerations of plea bargaining: backlog, problems of proof, prior relationship between victim and defendant, and reluctance of victims to prosecute. No legal system can function without the exercise of discretion. To eliminate discretion from the courts where it is visible, is to reconstitute it in the police and prosecutors where it is invisible.

There was virtually no opposition to the Guidelines finally adopted by the legislature, which increased sentence severity and broadened the range of judicial discretion. Martin, Interests and Politics in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania, 29 Vill.L.Rev. 21 (1983-84). The language of the Sentencing Code itself clearly shows the intent of the Legislature: although the Code does require a trial judge to consider the Sentencing Guidelines, it also states that, “In every case where the court imposes a sentence outside the Guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for deviation from the Guidelines.” 42 Pa.C.S. 9721(b); Commonwealth v. Royer, supra. Clearly, had the Legislature intended the Guidelines to remove the discretion of the trial judge from sentencing, it would not have included language in the Code that acknowledges inevitable instances of departure from them.

Since a trial judge is not bound hard and fast by the Guidelines, we must now determine if the departure in the case at bar was reasonable. 42 Pa.C.S. 9781(c)(3) requires this Court to vacate judgment of sentence should we find that the sentencing court sentenced outside the Guidelines and the sentence imposed was unreasonable. In making this determination, we consider the following two factors: 1) Did the court provide a contemporaneous statment at sentencing; and 2) was the statement adequate? See Commonwealth v. Royer, supra.

“The judge’s statement of reasons for the sentence made of record at sentencing in the defendant’s presence constitutes a contemporaneous written statement.” Commonwealth v. Royer, supra, 328 Pa.Superior Ct. at 69, 476 A.2d at 457. The trial judge in the instant case gave seven reasons for his selection of sentence. The record indicates that the statement was made at sentencing, in the presence of the defendant. Accordingly we find that the trial judge’s articulated reasons were contemporaneous within the meaning of the Sentencing Code. Cf. Commonwealth v. Hutchinson, 343 Pa.Super. 696, 495 A.2d 956 (1985).

Not only must the trial judge provide a contemporaneous statement, but that statement must contain “the permissible range of sentences under the Guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.” Commonwealth v. Royer, supra, 328 Pa.Super. at 71, 476 A.2d at 458. It is clear from the record that the decision to sentence outside the Guidelines was painstakingly reached, as the following statement by the trial judge:

THE COURT: Mr. Frazier, the Court has given you a sentence it does not enjoy giving, but I had to do it. You must understand that I rarely depart from the guidelines. If I were applying the sentencing guidelines without givining [sic] written reasons for departing from them, I could have sentenced you up to over 6 years, or I could have sentenced you to 27 months minimum.
I have departed from the guidelines in the imposition of my sentence because of your good background, but there has to be a punitive aspect involved here to teach you that you cannot do this. You are going to have to go into custody today and be under the superivison [sic] of the State Board of Parole.
From what I know of this case, I don’t believe you will ever return to court again. I certainly hope so. Good luck to you.

Although the Sentencing Guidelines are complex, we are satisfied that the trial judge provided the defendant, and this Court, with an appropriate explanation of his consideration of the Sentencing Guidelines and why he departed from them.

The purpose of the contemporaneous written statement would appear to be to advise the defendant of the reasons for deviating from the guideline and provide a memorial for his use and appellate review. It would be unreasonable to conclude that the legislature intended that the court do more than that when sentencing outside the Guidelines.

Commonwealth v. Royer, supra, 328 Pa.Superior Ct. at 69, 476 A.2d at 457.

Accordingly, judgment of sentence is affirmed.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

Our task as a court in reviewing the sentencing record is to consider 1) the nature of the offense and the defendant’s criminal history and characteristics; 2) the sentencing court’s observations of the defendant and the presentence report; 3) the sentencing court’s findings; and 4) the sentencing guidelines. 42 Pa.C.S.A. § 9721. An application of these factors to this appeal convinces me that the trial judge erred in imposing a sentence outside the guidelines.

The court seemingly downgraded the significance of the crime. Appellee’s act was premeditated as he walked with his stepdaughter to her grandmother’s house and then led her to the basement; she was ignorant of his plans and did not freely accommodate him upon discovering his intentions. Appellee choked her and threatened to kill her if she did not engage in oral sex. Moreover, he threatened to beat her if she screamed.

Appellee’s criminal record and characteristics are equally alarming. A propensity for abusing children is demonstrated by this crime and by appellee’s earlier conviction for corrupting the morals of a minor.

In 1980, appellee was convicted of assaulting the mother of one of his children, a crime which the sentencing court refused to recognize as aggravated assault because, in its judgment, there was insufficient evidence of appellee’s actions and the victim’s injuries. I believe the court erred, as appellee admitted breaking her jaw and carrying a hammer in a paper bag at the time he struck her. Furthermore, appellee pled guilty, and aggravated assault was the only charge contained in the information. Appellee’s probable release following four months of imprisonment on the present charge is particularly disturbing as he will then reside with his wife, two stepdaughters (one of whom was the victim here) and his one-year-old daughter, the class of people he has abused.

Many of the sentencing court’s observations of appellee were incorrect. I do not agree that appellee’s work record was “excellent.” Appellee was fortunate to enjoy success in moving from job to job, thereby maintaining steady employment. Since 1969, appellee’s longest period with one employer was from 1969 to 1971 when he worked as a maintenance man and welder. Thereafter, he worked as a sheet metal worker, construction worker and as a laborer in various foundries. Lately, appellee has been self-employed as a handyman and home renovator. Appellee’s frequent turnover and short-lived jobs do not constitute an “excellent” employment history without evidence of his workmanship and diligence. Frequent short-lived jobs raise questions regarding commitment.

The court also had no basis for disbelieving the report of licensed psychologist, Sol B. Barenbaum, Ph.D. Dr. Bar-enbaum recommended correctional institutional training. With such training he opined that appellee’s “prognosis for adjustment in the community is seen at best guarded____” The court’s opinion that appellee’s prognosis was better than guarded was without basis.

Similarly, there was no basis for believing that appellee was contrite. No testimony or documentary evidence reflected appellee’s remorse; consequently, the court’s opinion must have been based upon observations of appellee’s courtroom demeanor. Since most defendants display remorse at sentencing, I do not consider appellee’s appearance of contrition to be a factor justifying a reduced sentence, particularly in light of his history of abusing children and paramours.

The court cites appellee’s guilty plea and need for sex therapy as additional reasons for departing from the guidelines. A guilty plea is not remarkable and does not necessarily represent a defendant’s genuine sense of guilt. In fact, it is generally, though not admittedly, submitted in return for the prosecution’s recommendation for leniency. Secondly, sex therapy can be conducted during incarceration as easily and effectively as during probation.

Having failed to substantiate its departure from the guideline ranges, the court erred in sentencing appellee to a combined term of imprisonment of not less than four months nor more than two years. See Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985).

      . Included in the determination of sentencing under the Guidelines is the prior record score of a defendant. In the instant case, the prosecution asserted that appellee had a prior record score of three pursuant to a previous assault (noted on pp. 73-75 of Dissent by Hester, J.). The trial judge found that appellee’s prior record score was a one. His finding was based on the determination that the prior assault by appellee was not within the aggravated range.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    500 A.2d 163
    CLOVERLEAF DEVELOPMENT, INC. and Leonard E. Price and Dorothy J. Price, his wife, Appellants, v. HORIZON FINANCIAL F.A. Successor to Century Federal Savings and Loan Association and Gregor F. Meyer, Edward L. Flaherty, Jr. and Meyer and Flaherty, P.C., a professional corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued April 10, 1985.
    Filed Nov. 1, 1985.

      Robert F. Hawk, Assistant District Attorney, Butler, for appellants.
    Vincent J. Grogan, Pittsburgh, for appellees.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

In this appeal from an order sustaining preliminary objections in the nature of a demurrer to five of six counts of a complaint, we are asked to determine whether appellants have sufficiently pleaded causes of action for intentionally inflicted emotional distress and for intentionally interfering with prospective contractual relations. Before deciding these issues, however, we must first determine whether the order of the trial court was final and appealable.

On June 23, 1970, Cloverleaf Development, Inc., hereinafter “Cloverleaf,” obtained a loan of $1,515,000.00 from Century Federal Savings and Loan Association, hereinafter “Century,” who was the predecessor of Horizon Financial, F.A., hereinafter “Horizon.” As security for the loan, Cloverleaf executed a note and delivered to Century a mortgage constituting a lien on an apartment complex in Moon Township, Allegheny County. The terms of the loan required Cloverleaf to repay the principal indebtedness in 25 years with interest at the rate of 7.75%. The note also contained a clause vesting an option in Century, in the event of default for two or more months, to demand an increased interest rate not to exceed 9.30%. When so increased, the new rate was to remain in effect until the loan was paid in full. In the event of prepayment, Cloverleaf was to become liable for a penalty in the amount of six percent of the balance being pre-paid.

After a default had occurred, Century made a demand in 1980 that Cloverleaf pay interest at the rate of 9.3% on the unpaid loan balance. Leonard E. Price, who was president of Cloverleaf, refused Century’s demand. Century then proposed several amendments to the loan agreement. In a proposed, written modification, Century suggested an annual interest rate of 13.75%, without any option to increase the same, and a reduced term of 38 months. Cloverleaf, through its attorney, rejected the offer to modify the loan agreement. Nevertheless, after September, 1981, Century’s monthly statements included computations of interest at the rate of 13.75%. This increased each monthly payment by $2,000.00. Cloverleaf, allegedly because of inadvertence, paid the increased monthly statement without protest and without comment until March, 1982. Although it protested the increased interest rate thereafter, Cloverleaf nevertheless continued to make the increased monthly payments.

In February and March, 1982, Leonard Price received several offers to purchase his Cloverleaf stock. Attempts were made to obtain an agreement from Century to reduce the interest on the loan to the original 7.75%, but Century rejected all such requests and demanded an 18% balloon mortgage from any purchaser who assumed the mortgage and continued to use its money. A Century vice president allegedly said to one of the prospective buyers: “Nobody is going to assume Price’s mortgage if I have anything to do about it. I know that Price cannot afford to continue making the extra $2,000.00 a month payments and when he misses the next payment, we are going to take over the whole property and let Price swing.” All requests to allow an assumption of the mortgage at a 7.75% rate of interest were rejected.

The apartment complex was thereafter sold on a cash basis but at a price lower than that which had been offered by buyers who had been interested in assuming the existing mortgage. When Century computed and submitted a mortgage payoff figure, it included a prepayment penalty of six percent. This was pursuant to the provisions of the original loan agreement which, however, had been omitted from the modification agreement proposed by Centruy and never accepted by Cloverleaf. The payoff figure also contained a computation of interest at the rate of 13.75% as contained in the proposed but unaccepted modification agreement. In August, 1982, however, after the sale had been finalized, Century agreed to a reduced rate of interest for payoff purposes.

On May 23, 1983, Cloverleaf and Price filed a complaint containing six counts against Horizon, the corporate successor to Century. The first count was in assumpsit and contained averments that Century had breached its contract by unilaterally raising the interest rate to 13.75 percent or by otherwise charging interest at unauthorized rates. The second count alleged a wrongful withholding of funds referred to in the first count and asserted a claim for punitive damages. The third count contained a claim for damages allegedly caused by Century’s wrongful interference in negotiations between Cloverleaf and third parties for the sale of the apartment complex. This Century did, according to the averments of the complaint, “by demanding arbitrary and outrageous financing conditions” of anyone who would assume the mortgage. The final three counts of the complaint attempted to state causes of action for the intentional infliction of emotional distress. It was alleged that Century and also its attorneys had intentionally inflicted emotional distress by raising the interest rates on the mortgage, by proposing harsh repayment terms upon potential buyers interested in continuing the use of Century’s money, and in otherwise inflicting emotional distress upon Price and his wife. In response to preliminary objections in the nature of a demurrer, the trial court dismissed all but the first count of the complaint. This appeal followed.

The first issue to be resolved is whether appellants are properly before this Court. An appeal will lie only from a final order unless otherwise permitted by statute. “A final order is usually one which ends the litigation or, alternatively, disposes of the entire case____ ‘Conversely, an order is interlocutory and not final unless it effectively puts the litigant “out of court.” ’ ” Praisner v. Stocker, 313 Pa.Super. 332, 336-337, 459 A.2d 1255, 1258 (1983) (citations omitted), quoting Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). See also: Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978); 42 Pa.C.S. § 742. “As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.” Praisner v. Stocker, supra, 313 Pa.Super. at 337, 459 A.2d at 1258. This is so because in most such instances “the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action.” Id., 313 Pa.Superior Ct. at 338, 459 A.2d at 1258. However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is “out of court” with respect thereto. Id., 313 Pa.Superior Ct. at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. Id., 313 Pa.Superior Ct. at 341, 459 A.2d at 1260. Similarly, “where one of several counts seeks to recover punitive damages in a complaint alleging breach of contract, a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. Only if he is successful in his cause of action for breach of contract does the measure of damages become relevant.” Id.

In the instant case, the first count of the complaint, containing a cause of action for alleged breach of contract, awaits disposition in the trial court. The second count is merely a restatement of the first count and includes a claim for punitive damages. The averments of this count are that Century unlawfully withheld interest collected in breach of contract as alleged in the first count. Appellants are not “out of court” on their cause of action for breach of contract; and, therefore, the trial court’s rejection of their alternate theory and the claim for punitive damages contained in the second count was interlocutory. Such an order would not ordinarily be appealable. This Court will not review or express an advisory opinion regarding a ruling of the trial court which does not determine finally the cause of action for breach of contract alleged by appellants. We will not suggest which theory or theories appellants should pursue in the trial court or what damages they may recover in their undecided action for breach of contract.

The dismissal of Count No. 3 was final. Appellants are out of court on their claim for damages because of Century’s alleged interference with Cloverleaf’s negotiations with third party, potential buyers. Therefore, we will review the averments in Count No. 3 to determine whether they are sufficient to state a cause of action.

To state a cause of action for interfering with prospective contractual relations, a complaint must allege (1) a prospective contractual relationship between the plaintiff and third parties, (2) a purpose or intent to harm the plaintiff by preventing the relationship from accruing, (3) the absence of privilege or justification on the part of the defendant, and (4) the occurrence of actual harm or damage to the plaintiff as a result of the defendant’s conduct. Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. 253, 267, 489 A.2d 1364, 1370 (1985).

The averments of the complaint were that Price had agreed to sell his stock in Cloverleaf to persons who were interested in assuming the mortgage at an interest rate of 7.75%. It was also alleged that Wise Business Forms, Inc., another potential buyer, was prepared to sign an agreement to buy if financing would be continued at the rate of 7.75%. Appellants contended that Century had interfered maliciously by demanding a higher interest rate and had thereby knowingly and intentionally destroyed these potential sales. These averments were sufficient to allege a reasonable likelihood or probability that an anticipated business arrangement would have been consummated. Behrend v. Bell Telephone Co., 242 Pa.Super. 47, 60-61, 363 A.2d 1152, 1159 (1976), reversed on other grounds, 473 Pa. 320, 374 A.2d 536 (1977). The complaint also alleged that Century had acted to inflict harm on Cloverleaf. See: Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Division, 281 Pa.Super. 560, 581 n. 11, 422 A.2d 611, 622 n. 11 (1980). However, it is eminently clear from the aver-ments of the complaint that Century was justified in acting as it did to protect its own financial interest. Its conduct, therefore, was not improper and will not support a cause of action for interfering with potential contractual relationships.

The “ ‘absence of privilege or justification on the part of the defendant,’ ‘is merely another way of stating that the defendant’s conduct must be improper.” Yaindl v. Inger-soll-Rand Co. Standard Pump-Aldrich Division, supra, 281 Pa.Superior Ct. at 581 n. 11, 422 A.2d at 622 n. 11. Where a defendant acts at least in part for the purpose of protecting some legitimate interest which conflicts with that of the plaintiff, a line must be drawn and interests must be evaluated. “ ‘ “This process results in according or denying a privilege which, in turn, determines liability.” What is or is not privileged conduct ... is not susceptible of precise definition.’ ” Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 432-433, 393 A.2d 1175, 1183-1184 (1978), quoting Glenn v. Point Park College, 441 Pa. 474, 482, 272 A.2d 895, 899 (1971). Interferences “which ‘are sanctioned by the “rules of the game which society has adopted,” ’ ” are considered proper. Id. 482 Pa. at 433, 393 A.2d at 1184. The factors to be considered in determining whether conduct is “improper” are listed in the Restatement (Second) of Torts, Section 767:

(a) The nature of the actor’s conduct,
(b) The actor’s motive,
(c) The interests of the other with which the actor’s conduct interferes,
(d) The interests sought to be advanced by the actor,
(e) The proximity or remoteness of the actor’s conduct to the interference and
(f) The relations between the parties.

See: Adler, Barisk, Daniels, Levin and Creskoff v. Espstein, supra, 482 Pa. at 433 & n. 17, 393 A.2d at 1184 & n. 17 (footnote omitted).

The mortgage which was intended to provide security for moneys loaned to Cloverleaf contained a specific provision that the loan, in the event of a transfer of the real estate, would be deemed to be in default and the unpaid balance would thereupon become due and payable. A default of this nature could be cured only if Century were to waive the “due-on-sale clause.” However, such a waiver, according to the terms of the mortgage, “may require as a condition ... a modification in the rate of interest and/or charge in the monthly principal payments, [and] the execution of a personal note providing for the assumption of the mortgage by the transferee upon such terms and form as is acceptable to the mortgagee.” (emphasis added). A due-on-sale clause in a mortgage is a legitimate contractual stipulation and must be construed in accordance with the intention of the parties to the same extent as other contractual provisions. Bank of Pennsylvania v. G/N Enterprises, 316 Pa.Super. 367, 373-374, 463 A.2d 4, 7 (1983).

According to the clear language of the mortgage in this case, Century had the right to demand an increased rate of interest from one who would assume the mortgage and also the right to amend the schedule of payments according to which the loan was to be repaid. In order to protect its rights under the mortgage and advance its legitimate business interests, Century could notify potential buyers of the real estate that it intended to declare the mortgage in default rather than have it assumed at the original rate of interest. It cannot be said that Century acted improperly so as to give rise to a cause of action for intentional interference with prospective contractual relations as envisioned by Restatement (Second) of Torts § 767. The trial court correctly dismissed the third count of the complaint.

The fourth, fifth and sixth counts of the complaint were also dismissed properly. These counts averred that Century and its attorneys had intentionally inflicted emotional distress upon Leonard Price and his wife by their conduct in demanding higher interest rates from potential purchasers who wished to assume the mortgage. These three counts averred a separate cause of action. See: Papieves v. Kelly, 437 Pa. 373, 378-379, 263 A.2d 118, 121 (1970). When the trial court sustained preliminary objections in the nature of a demurrer to all three counts, it determined finally that the Prices could not recover on their stated cause of action.

Intentional infliction of emotional distress is an actionable wrong when one intentionally and recklessly, by extreme and outrageous conduct, causes severe emotional distress to another. Liability can be found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 381, 492 A.2d 1382, 1386 (1985); Bartanus v. Lis, 332 Pa.Super. 48, 59-60, 480 A.2d 1178, 1184 (1984). As we have already observed, when Century insisted upon higher interest rates in exchange for an assumption of the mortgage, it was acting within rights conferred by the provisions of the mortgage. Its conduct, therefore, was not outrageous. Cf. Thompson v. Sikov, 340 Pa.Super. 382, 490 A.2d 472 (1985). If Century improperly raised Cloverleaf’s mortgage interest rate, that may have been a breach of the contract. However, an attempt to increase the interest was not such outrageous conduct, so extreme and so excessive of decency, that it would support a separate cause of action for intentionally inflicted emotional distress. Similarly, the complaint fails to allege conduct on the part of Century’s attorneys sufficient to support such a cause of action against them. Even if the advice which they gave their client, Century, was incorrect, this fact alone would not give rise to a cause of action in favor of appellants. See: Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984).

That portion of the order dismissing the third, fourth, fifth and sixth counts of the complaint is affirmed. We express no opinion regarding the cause of action for breach of contract or the damages recoverable therein.


text:
    500 A.2d 169
    Patrick J. ALFIERO v. BERKS MUTUAL LEASING CO. and International Harvester Co. and CNA Insurance Company a/k/a and/or d/b/a Continental Casualty Company. Appeal of CNA INSURANCE COMPANY a/k/a and/or d/b/a Continental Casualty Company.
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed Nov. 1, 1985.

      Stephen C. Baker, Philadelphia, for appellant.
    Paul R. Anapol, Philadelphia, for Alfiero, appellee.
    Thomas J. Finarelli, Philadelphia, for International, appel-lee.
    Before WIEAND, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

Patrick J. Alfiero sustained a spinal cord injury resulting in complete and permanent paraplegia by virtue of an accident which occurred while he was driving a dump truck leased to his employer, Empire Steel Castings, Inc., by Berks Mutual Leasing Company (hereinafter “Berks”). Alfiero commenced a civil action against Berks and International Harvester Company, Inc., the designer and manufacturer of the truck. An amicable settlement resulted in a judgment in favor of Alfiero and against Berks in the amount of $950,000.00. Berks’ primary insurance carrier, Liberty Mutual Insurance Co., paid Alfiero the sum of $100,000.00, its policy limit. Excess coverage was allegedly provided by a policy of insurance written by Continental Casualty Company (hereinafter “CNA”). Alfiero issued execution on the unpaid judgment of $850,000.00 and named CNA as garnishee. CNA denied liability, but the trial court, after full and complete hearing, made extensive findings of fact and concluded that CNA was liable for the unpaid judgment and also for Alfiero’s counsel fees. On appeal, CNA contends (1) that the terms of the settlement between Alfiero and Berks were such that Berks, and thus its excess liability carrier as well, was released from all liability in excess of $100,000.00, and (2) that the trial court erred in assessing Alfiero’s counsel fees against a garnishee. There is merit only in the second contention.

The trial court made extensive findings of fact which are not challenged on appeal. The truck which Alfiero was driving for his employer at the time of the accident had been leased from Berks pursuant to a lease agreement which required Empire Steel to provide liability insurance coverage. Berks was required to maintain the truck. Berks was insured by Liberty Mutual pursuant to a garage liability policy which had limits of $100,000.00 per person for bodily injury. Empire Steel had purchased from CNA a third party liability policy which, although disputed, was held in a separate declaratory judgment action to provide umbrella or excess coverage to Berks in an amount not to exceed $1,000,000.00.

Timely notice of Alfiero’s civil action was given to CNA together with a request by Berks to defend the action. CNA refused, and Liberty Mutual undertook to defend the action on Berks’ behalf. CNA continued its refusal to defend even after the trial court had determined in the separate declaratory judgment proceeding that CNA had a duty to defend. Instead, CNA filed an appeal and, in the meantime, refused to participate in the civil action or in the settlement discussions which were then underway. According to the findings of the attachment court, trial counsel for all parties were unanimous in their opinion that the Alfiero claim had a value in excess of one million dollars. For this reason and also because of a likelihood that Berks would be found solely liable to Alfiero, CNA was repeatedly urged to take an active part in the settlement negotiations. CNA refused. It continued its refusal even after International Harvester had settled and counsel for Liberty Mutual had advised CNA that attempts were being made to settle for an amount under one million dollars. Ultimately, the claim against Berks was settled for $950,000.00. Liberty Mutual paid $100,000.00, as we have observed, and Berks assigned to Alfiero all its rights against CNA. In return, Alfiero agreed that he would not expose Berks’ assets to sale to satisfy the balance of his judgment. The settlement was approved, and the amount was reduced to judgment. Execution proceedings were then begun by Alfiero against CNA.

CNA argues that because Alfiero agreed not to seek satisfaction from Berks’ assets, Alfiero has effectively released Berks from any further liability to pay the judgment. Because Berks has no further liability to Alfiero, CNA contends, its duty to indemnify Berks has been extinguished. We reject this argument.

Alfiero did not agree to release Berks from further liability. Its agreement was to seek recovery of an agreed debt from a specific asset, i.e., the contractual rights owed to Berks by CNA. These contractual rights had been separately litigated, and a final judgment had been entered in separate declaratory judgment proceedings. The judgment, therefore, could be enforced by garnishment. Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560, 563 (3d Cir.1976) (a verdict winner can assert in a garnishment proceeding the insured’s claim against the insurer as an assignee of the insured). See: Shaw v. Botens, 403 F.2d 150, 154-155 (3d Cir.1968); Boyd Estate, 394 Pa. 225, 242-243, 146 A.2d 816, 824-825 (1958). See also: West v. MacMillan, 301 Pa. 344, 152 A. 104 (1930); Malley v. American Indemnity Co., 297 Pa. 216, 146 A. 571 (1929); Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635 (1981).

The trial court determined that CNA’s denial of coverage had been a breach of its contract of insurance. It concluded, therefore, that Berks could properly negotiate a settlement in an amount that was fair and reasonable and according to terms calculated to protect and preserve the physical assets which were essential to its ability to continue doing business. We agree. An insurer owes an insured the duty of acting in good faith. See: Gray v. Nationwide Mutual Insurance Co., 422 Pa. 500, 223 A.2d 8 (1966); Shearer v. Reed, supra. CNA repeatedly denied any and all obligation to defend or to indemnify Berks. CNA thereby breached its duty to act in good faith and repudiated its contract of insurance. See: Restatement (Second) of Contracts § 250 (1979); 49 A.L.R.2d 694, § 7, at 711-716 (1956). Under these circumstances Berks could properly negotiate a settlement directly with Alfiero so long as it was done in good faith and the settlement was fair and reasonable. The settlement was not unreasonable merely because Berks sought to protect the assets which it used in conducting business. See: Massachusetts Bonding and Insurance Co. v. Car and General Insurance Corp., 152 F.Supp. 477, 480 (E.D.Pa.1957); Murphy & Co. v. Manufacturers’ Casualty Co., 89 Pa.Super. 281, 286 (1926). See also: Traders & General Insurance Co. v. Rudco Oil & Gas Co., 129 F.2d 621, 626 (10th Cir.1942).

The amount of Berks’ liability to Alfiero was established by agreement and reduced to judgment. The court, in approving the settlement, found that the amount was reasonable, and CNA has not contended otherwise. CNA’s liability for excess coverage had been established in prior proceedings. Therefore, the trial court could properly hold, as it did, that Alfiero could recover $850,000.00, the unsatisfied portion of the verdict, from CNA.

CNA’s reliance on United States Fire Insurance Co. v. Lay, 577 F.2d 421 (7th Cir.1978) is misplaced. There, the primary carrier had settled for an amount less than its policy limit, but had obtained credit for the maximum coverage by agreement. Here, Liberty paid its policy limit in full. Moreover, in Lay, the insured had obtained a release except as to available insurance coverage. Here, although Berks obtained an agreement that protected its assets, it did not do so until after CNA had repudiated its contract to provide excess insurance coverage. When that happened, Berks could properly negotiate a settlement according to terms intended to preserve its assets from execution. Although in Lay, there was an apparent attempt to benefit the insured improperly at the expense of the insurer, no such attempt appears in this case. Here, the parties have never attempted to do anything more than have CNA assume the duties legally owed to its insured according to its contract of insurance.

The trial court did not find that CNA had been guilty of “dilatory, obdurate, and vexatious conduct” and did not base an award of counsel fees upon authority contained in 42 Pa.C.S. § 2503. Instead, it based an award of counsel fees on “applicable Pennsylvania Rules of Civil Procedure governing the Enforcement of Money Judgments.” Neither counsel’s research nor our own has disclosed a rule of law which automatically imposes a duty to pay counsel fees upon a garnishee. Pa.R.C.P. 3117(b), upon which appellee appears to rely, applies only to the cost of discovering assets not disclosed by a garnishee. Moreover, the costs of discovering assets “may be taxed only against the judgment debtor; it is he who is liable for satisfaction of the judgment and it is he who is assumed to have wilfully refused to submit his property to execution.” Goodrich-Amram 2d § 3117(b):l.l. In this case, moreover, the trial court acted sua sponte. Without any request therefor and without evidence to support a claim, the trial court awarded counsel fees “upon submission of appropriate proof.” This was unwarranted and improper.

Except for the award of counsel fees, which is vacated and set aside, the order entering judgment against the garnishee is affirmed.

      . The claim against International Harvester was settled for an amount contingent upon the amount that could be recovered from Berks and its several insurance carriers.

      . The judgment was affirmed by the Superior Court sub nom. Berks Mutual Leasing Co. v. Empire Steel, 295 Pa.Super. 565, 437 A.2d 1015 (1981), and allocatur was denied by the Supreme Court.


text:
    500 A.2d 173
    COMMONWEALTH of Pennsylvania, Appellee, v. Herbert Mantore JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted August 5, 1985.
    Filed Nov. 1, 1985.

      David S. Shrager, Duquesne, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, POPOVICH and LIPEZ, JJ.
   WIEAND, Judge:

This is an appeal from an order denying a P.C.H.A. petition after hearing.

Herbert M. Johnson was tried before a jury which found him guilty of armed robbery and murder in the second degree. Post-trial motions were denied, and Johnson was sentenced to prison for life. On direct appeal, Johnson was represented for the first time by counsel other than trial counsel. The Superior Court affirmed per curiam, and the Supreme Court denied allocatur. When Johnson next filed a P.C.H.A. petition, the court appointed a third attorney to represent him. Johnson, however, retained present counsel, his fourth, and court appointed counsel withdrew. An amended P.C.H.A. petition was then filed in which Johnson alleged that trial counsel and appellate counsel had rendered constitutionally ineffective assistance. An evidentia-ry hearing was held, but the court denied relief. In this appeal from the denial of post-conviction relief, Johnson argues that prior counsel were ineffective because they failed to preserve at trial and/or on direct appeal (1) that appellant may have been observed in handcuffs by members of the jury; (2) that the trial court did not instruct the jury on involuntary manslaughter; (3) that improper remarks were made by the prosecuting attorney during his opening statement; and (4) that the voir dire examination of prospective jurors was not held in public. We find no merit in these contentions and, therefore, affirm the order of the P.C.H.A. court.

As a general rule, ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977). However, where a P.C.H.A. petitioner alleges the ineffectiveness of appellate counsel for failing to raise trial counsel’s ineffectiveness, the issues of trial and appellate counsel’s effectiveness are properly presented to the P.C.H.A. court. See: Commonwealth v. Gans, 271 Pa.Super. 193, 197-198, 412 A.2d 642, 644 (1979).

In examining the P.C.H.A. court’s denial of relief, our scope of review is limited to determining whether the court’s findings were supported by the record and its order otherwise free of legal error. Commonwealth v. Broadwa-ter, 330 Pa.Super. 234, 241, 479 A.2d 526, 530 (1984);, Commonwealth v. Bellamy, 321 Pa.Super. 471, 475, 468 A.2d 806, 808 (1983). The findings of the P.C.H.A. court will not be disturbed unless they have no support in the record. Id. With respect to issues of credibility, we must defer to determinations made by the P.C.H.A. court. Commonwealth v. Jones, 324 Pa.Super. 359, 363, 471 A.2d 879, 881 (1984). We are guided by these restraints in determining the effectiveness of counsel in this case.

The initial inquiry which we make is whether appellant’s claims are of arguable merit. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983); Commonwealth v. Kenney, 317 Pa.Super. 175, 182, 463 A.2d 1142, 1145 (1983) (quoting Commonwealth v. Kaufman, 307 Pa.Super. 63, 73, 452 A.2d 1039, 1044 (1982)). Only if the underlying claim is of arguable merit must we inquire whether the strategy chosen by counsel had some reasonable basis designed to effectuate the interest of his client. Commonwealth v. Hubbard, supra, 472 Pa. at 278, 372 A.2d at 696. The burden of establishing counsel’s ineffectiveness lies with the petitioner. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802, 806 (1985). Counsel’s effectiveness is presumed. Commonwealth v. McNeil, supra; Commonwealth v. Kenney, supra. After careful review of the record in this case, we agree with the P.C. H.A. court that there was no arguable merit in any of appellant’s averments that he received ineffective assistance of counsel.

Johnson’s first contention was that members of the jury may have seen him being led into the courtroom wearing handcuffs and that trial counsel was ineffective for failing to move for a mistrial on that basis. “As a general rule, defendants ‘should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order.’ ” Commonwealth v. Chew, 338 Pa.Super. 472, 481, 487 A.2d 1379, 1384 (1985) (quoting A.B.A. Project on Minimum Standards For Criminal Justice, Standards Relating to Trial by Jury, Section 4.1(c) (Approved Draft, 1968)). See also: Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Mayhugh, 233 Pa.Super. 24; 336 A.2d 379 (1975) . Nevertheless, it is clear “that a brief, accidental sighting of a defendant in custodial trappings, without more, is not so inherently prejudicial as to significantly impair the presumption of innocence to which a defendant is entitled.” Commonwealth v. Dooley, 332 Pa.Super. 227, 237, 481 A.2d 336, 341 (1984).

The record in this case discloses that while Johnson, in handcuffs, and his escort, the deputy sheriff, were waiting for an elevator in a hallway outside the courtroom, some of the jurors (the number is unclear) who were waiting for an elevator at the other end of the hallway, looked in appellant’s direction. According to the deputy sheriff who testified to the incident, he could not “be sure if they saw the cuffs.’” (N.T. 4/12/77, at 26). The P.C.H.A. court found that “[t]he presence of the defendant and jurors was accidental and the result of a ‘mix-up.’ ” Trial Op. at 5. The court concluded that under these circumstances, a brief sighting of the defendant in handcuffs was not grounds for a mistrial. The court’s determination is supported by the record and is consistent with prior appellate decisions. See, e.g., Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976) (court refused to grant a mistrial where defendant failed to offer evidence indicating that jurors had in fact seen him in handcuffs in a hallway outside the courtroom); Commonwealth v. Evans, 465 Pa. 12, 348 A.2d 92 (1975) (no grounds for mistrial where alleged observation of defendant in handcuffs occurred outside courtroom for brief period, and where it was unclear whether the jury actually had seen him).

“[I]n a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict.” Commonwealth v. White, 490 Pa. 179, 185, 415 A.2d 399, 402 (1980); Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980); Commonwealth v. Hassine, 340 Pa.Super. 318, 349, 490 A.2d 438, 454 (1985). The record in this case indicates that Johnson and two other men, in order to acquire “some quick money,” decided to rob a local bar. Johnson was aware that the man who was to accompany him into the bar, Rodney Smith, possessed a handgun in order to “get the jump” on the bartender. After the men had entered the bar, wearing face masks, Smith shot and killed the bartender. The two men then fled with the bar’s cash register. Because Johnson and his co-felons were committing an armed robbery at the time of the shooting, the killing, at a minimum, was second degree murder under the felony murder rule. See: Commonwealth v. White, supra, 490 Pa. at 186, 415 A.2d at 402. Therefore, the evidence did not reasonably support a finding of involuntary manslaughter. We agree with the P.C.H.A. court that trial counsel was not ineffective for failing to request an instruction pertaining to involuntary manslaughter.

The alleged impropriety in the prosecutor’s opening statement was his characterizing the armed robbery as a product of a “conspiracy” and his alluding to the fact that the accomplice robbed several bar patrons before the men left the bar with the cash register. We have stated in Commonwealth v. Showalter, 231 Pa.Super. 278, 332 A.2d 456 (1974):

“[A]n accused is not to be convicted of one crime by the use of evidence of other unrelated crimes.” Commonwealth v. McGonigle, 228 Pa.Super. 345, 348, 323 A.2d 733, 734 (1974). It is also, however, the law in this Commonwealth that evidence of other crimes is admissible when it tends to prove the defendant’s motive, his intent, the absence of mistake or accident, the identity of the accused, or a common scheme, plan or design of two or more crimes which are so related that proof of one tends to prove the others. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973). Our Court has had occasion to state that “commission of another offense is admissible if it ‘... became part of the history of the event on trial, or was part of the natural development of the facts.’ ” Commonwealth v. McKenna, 206 Pa.Super. 317, 320, 213 A.2d 223, 225 (1965) (citation omitted).

Id., 231 Pa.Superior Ct. at 282, 332 A.2d at 458 (emphasis added). The P.C.H.A. court correctly found that the actions of Johnson and his partners could properly be characterized as a “conspiracy” by the prosecuting attorney and that his reference to robbing the bar patrons was proper because this act was part of the history of the event and also part of the natural development of the facts.

Appellant’s final contention, that prior counsel were ineffective for failing to assert and/or preserve Johnson’s right to public jury selection, was raised in Johnson’s pro se P.C.H.A. petition and is presumably based upon decisions in Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) and Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982). Appellant’s amended petition did not specifically reiterate this ground. However, it did state that new grounds were being alleged in addition to his original pro se claim. We conclude that this was sufficient to preserve the jury selection issue for the P.C.H.A. court. Although the P.C.H.A. court failed to address the issue, it is nevertheless clear that there is no merit in appellant’s argument.

We will not “impose upon trial counsel [or appellate counsel] the qualities of a seer ... and counsel will not be deemed ineffective for failing to predict future developments in the law.” Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977). On the contrary, we examine counsel’s stewardship under standards as they existed at the time of his actions. Id., 476 Pa. at 89, 381 A.2d at 881. Neither trial counsel in 1977, when this case was tried, nor appellate counsel could be required to anticipate, at the risk of being found ineffective, the subsequent decisions in Press-Enterprise, supra and Johnson, supra. Moreover, counsel will not be deemed ineffective for failing to do something which would not have affected the result. See: Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

When this case was tried it was not unusual in this Commonwealth to conduct voir dire in a room apart from the courtroom and then bring the selected jury into the courtroom for trial. See, e.g., Commonwealth v. Knight, 469 Pa. 57, 69-70 n. 11, 364 A.2d 902, 908 n. 11 (1976). This was true even though the right to public trial (and hence public voir dire) had been a longstanding, recognized part of Anglo-American jurisprudence. See: Press-Enterprise, supra. Public trials ensured that fairness would be accorded the defendant and public concerns vindicated. Id. The practice of conducting voir dire in a separate room in advance of taking testimony in the courtroom was not intended to and did not undermine the safeguards of public trials. The purpose of the procedure was to enhance the efficient movement of cases. If a defendant requested voir dire and jury selection in the courtroom, of course, he was entitled thereto. Because in most cases there was no practical advantage to be gained by insisting upon voir dire in the courtroom, however, such requests were seldom made. Thus, trial counsel, in 1977, was not required to raise, at the risk of being deemed ineffective, the nonpublic selection of a jury later condemned by decisions in Press-Enterprise and Johnson.

Moreover and in any event, appellant failed in this case to show that public voir dire would have offered a potential for success greater than the selection process actually utilized or that he was prejudiced in any way because his trial counsel failed to request an alternate procedure. “A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice.... ” Commonwealth v. Garvin, supra, 335 Pa.Super. at 566, 485 A.2d at 39. Thus, even if we were to find arguable merit in appellant’s claim that counsel in 1977 should have requested public voir dire, appellant would not be entitled to a new trial, for he failed to show that the course followed by counsel affected the fairness of his trial or otherwise caused prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). He failed to show that he had requested that counsel seek public voir dire, that the voir dire actually conducted had been suggestive or otherwise improper, that the jury selection process had been tainted or, indeed, that anyone seeking admittance during jury selection had been denied admission. Finally, appellant has not even dared to suggest a likelihood that a jury selected in a different manner would have reached a different result. Because there is no reason to find that an alternate course would have offered “a potential for success substantially greater” than the result achieved by nonpublic voir dire, appellant’s present contention must be rejected. His prior attorneys were not ineffective.

Finding no merit in appellant’s several arguments that he received ineffective assistance from prior counsel, we will affirm the order denying P.C.H.A. relief.

Order affirmed.

POPOVICH, J., concurs in the result.


author: DEL SOLE, Judge:

text:
    500 A.2d 178
    Korkut BERIKER, Robert Williams, Robert Beshar, the Beriker Group, Appellees, v. PERMAGRAIN PRODUCTS, INC. and Quehanna Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued May 22, 1985.
    Filed Nov. 8, 1985.

      Steven A. Asher, Philadelphia, for appellants.
    William G. Scarborough, Philadelphia, for appellees.
    Before DEL SOLE, MONTEMURO and BECK, JJ.
   DEL SOLE, Judge:

This is an appeal from a Judgment entered in the Court of Common Pleas of Philadelphia, which confirmed an arbitration award of $67,500 made by a panel of arbitrators of the American Arbitration Association. We affirm the Judgment of the trial court.

In 1980, the parties in this case entered into negotiations to set up a business to manufacture polyester marble tile in the United States. Groundwork for the venture was laid: a stock subscription agreement was drawn up, money was advanced, a management contract was executed and so forth. The manufacturing business never materialized beyond these preliminaries, however. In winding matters up a dispute arose between the parties over how much money was owed by the Appellant (Permagrain) to the Appellees (the Beriker Group). The Appellees submitted a demand for arbitration to the American Arbitration Association in Philadelphia in October, 1983. The Appellant denied that it had agreed to submit disputes to arbitration and brought an equity action in the Court of Common Pleas of Delaware County seeking to enjoin arbitration, claiming there was no agreement to arbitrate. This petition for preliminary in-junctive relief was denied by the trial court in Delaware county after a hearing. No appeal from this order was taken by Permagrain, although Pennsylvania Rule of Appellate Procedure 311(a)(4) provides that an appeal as of right may be taken from an order refusing to grant an injunction.

The matter then proceeded to arbitration. Hearings were held, after which the arbitrators determined that the parties did have an agreement to arbitrate disputes and that an award should be made in favor of the Appellees. The arbitrators entered an award in favor of the Beriker Group, in the amount of $67,500 on May 8, 1984. On July 24, 1984, after more than thirty days had elapsed from the date of the award, the Appellees filed a motion to confirm the award. The trial court granted the motion on October 9, 1984. This appeal followed.

The matter is governed by 42 Pa.C.S.A. § 7342(b) which provides:

(b) Confirmation and judgment. — On application of a party made more than 30 days after an award is made by an arbitrator under section 7341 (relating to common law arbitration) the court shall enter an order confirming the award and shall enter a judgment or decree in conformity with the order. Section 7302(d)(2) (relating to special application) shall not be applicable to proceedings under this subchapter. 1982, Dec. 20, P.L. 1409 No. 326, art II, § 201, effective in 60 days.

The statute provides upon application of a party made more than thirty days after the award the court shall enter an order confirming the award. In the instant case, no action was taken to modify the award until the Appellant filed an Answer to the Petition to Confirm Arbitration Award on August 24, 1984, more than three months after the arbitrators award of May 4, 1984. The statute clearly provides, however, that any issues a party wishes to raise must be raised within thirty days of the date of the award, since after that time it is mandatory for the trial court to confirm an award upon application of either party. This is in keeping with the thirty day time period for appeals established by the legislature in other types of cases.

The Appellants argue that our decision in Gaslin, Inc. v. L.G.C. Exports, Inc., 334 Pa.Super. 132, 482 A.2d 1117 (1984) stands for the proposition that a party may challenge a common law arbitration award by opposing a motion to confirm. In Gaslin, the Appellant challenged the jurisdiction of the arbitrators in his answer to a motion to confirm an arbitrators award as did the Appellant in the instant case, and the Gaslin court approved this procedure. This procedure has been changed by the current law which became effective as of February 18, 1983, which reads:

“the court shall enter an order confirming the award and shall enter a judgment of decree in conformity with the order.” [Emphasis added],

42 Pa.C.S.A. § 7342(b). The use of the word “shall” must be interpreted as mandatory in an instance such as this. See James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 346 A.2d 765, 767 (1975).

The Appellant had the opportunity to appeal from the order of the Court of Common Pleas of Delaware County which denied its request for a preliminary injunction to enjoin the arbitration and failed to file an appeal. The Appellant failed to challenge the award made by the arbitrators on May 8, 1984 until after the Appellees had moved to have the trial court confirm the award, more than thirty days after it had been entered, and we find that that challenge came too late. We therefore affirm the judgment of the trial court.

Judgment affirmed.


author: HOFFMAN, Judge:

text:
    500 A.2d 428
    Marc STEEL, D.D.S. v. Steven L. WEISBERG, D.D.S. Appeal of Charles R. WEBER, D.D.M.
    Superior Court of Pennsylvania.
    Argued April 2, 1985.
    Filed Sept. 6, 1985.
    Reargument Denied Nov. 19, 1985.

      Thomas A. Beckley, Harrisburg, for appellant.
    Donald A. Brown, Harrisburg, for appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order denying appellant’s motion for a protective order. Appellant contends that the Peer Review Protection Act, 63 P.S. §§ 425.1-.4, compels a different result. Because we find that the order is not appealable, we must quash this appeal.

On March 23, 1983, Marc Steel, D.D.S., appellee herein, filed a complaint against Steven L. Weisberg, D.D.S., not a party to the present appeal, alleging that Dr. Weisberg defamed him and failed to pay him his share of patients’ dental fees pursuant to an agreement between the two dentists. Dr. Weisberg filed his answer, new matter, and counterclaim on June 20, 1983. On March 15, 1984, during discovery, appellee filed a notice to take the deposition of Dr. Charles Weber, D.D.M., appellant herein. On April 12, 1984, appellant filed a motion for a protective order, pursuant to Pa.R.Civ.P. 4012(a), alleging that, as Chairman of the Chester-Delaware Patients Relations Committee, a “review committee” within the meaning of the Peer Review Protection Act, supra, he could not be deposed concerning the proceedings and records of the Committee in accordance with the provisions of the Act. In appellee’s answer to the motion, filed on April 25, 1984, appellee alleged that he had “no intention of asking any questions concerning any testimony or proceedings before any dental committee” and that “[t]he only questions will be with respect to the receipt of the letter provided by the Defendant [Dr. Weisberg] and the names of those individuals to whom the letter was distributed.” (Appellant’s Answer to motion for Protective Order ¶ 4). The letter in question was an October 14, 1982 letter from Dr. Weisberg to appellant which contained some of the allegedly defamatory statements made by Dr. Weis-berg. By order of October 5, 1984, the lower court denied the motion for a protective order. This appeal followed.

“The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, ... except such classes of appeals as are ... within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.” 42 Pa.C.S.A. § 742 (emphasis added). A final order is one which “either ends the litigation or disposes of the entire case.” Gray v. State Farm Insurance Co., 328 Pa.Superior Ct. 532, 537, 477 A.2d 868, 871 (1984). “In determining what constitutes a final order we look to a practical rather than technical construction of the order.” Marron’s Woodstove and Fireplace Center, Inc. v. Alaska Co., Inc., 326 Pa.Superior Ct. 471, 472-74, 474 A.2d 337, 338-39 (1984). Interlocutory orders, on the other hand, are not appealable unless “authorized by law” or by permission of the appellate court. 42 Pa.C.S.A. §§ 702(a), (b) and 5105(c). Here, the order denying appellant’s motion for a protective order is not a final order because it neither ends the litigation between appellee and Dr. Weisberg nor disposes of their entire case. Furthermore, it is not an interlocutory order appealable as of right. See generally Pa.R.A.P. 311(a).

Appellant contends, however, that the instant order is appealable under the “collateral order” exception to the final order rule. Under this doctrine,

an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978), citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). See also Sanderbeck v. Sanderbeck, 327 Pa.Superior Ct. 461, 463, 476 A.2d 44, 45 (1984); Buchanan v. Century Federal Savings and Loan Association, 259 Pa.Superior Ct. 37, 43, 393 A.2d 704, 707 (1978). Thus, Pugar permits appeals from “that small class of decisions ‘which fully determine[] claims of rights separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” In re Estate of Georgiana, 312 Pa.Superior Ct. 339 , 342, 458 A.2d 989, 991 (1983), quoting Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S., at 546, 69 S.Ct. at 1225.

We thus proceed to determine whether the lower court’s order meets Pugar’s three-part test. Arguably, the order is separable from and collateral to the main causes of action, i.e., appellee’s trespass (defamation) and assumpsit claims. Appellee asserts that he only seeks discovery of the fact of appellant’s receipt of Dr. Weisberg’s allegedly defamatory letter and the names of others who may have received it, Brief for Appellee at 7; in other words, appellee wants to prove publication of the October 14, 1982 letter. See generally 42 Pa.C.S.A. § 8343(a) (elements of defamation which a plaintiff has the burden of proving). But while the information sought is of importance to appellee’s defamation claim, we note that appellant, not a party to the underlying action, based his motion for a protective order on a claimed statutory right which is wholly independent of that action.

Additionally, we agree with appellant that the right here is one too important to be denied review. The Peer Review Protection Act, through grants of immunity from liability, see 63 P.S. § 425.3, and of confidentiality, see id. § 425.4, encourages “review organizations,” engaged in “peer review,” “to gather and review information relating to the care and treatment of patients for the purpose of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.” Id. § 425.2; see also Robinson v. Magovern, 83 F.R.D. 79, 87 (W.D.Pa.1979). Through these immunity and confidentiality provisions, then, the Legislature has sought to foster free and frank discussion by review organizations. Id. Here, appellant based his motion for a protective order upon the Act’s provision providing that, under certain circumstances, “[t]he proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action____” 63 P.S. § 425.4 (emphasis added).

Lastly, while we agree with appellant that the asserted right will be “irreparably lost” if the case proceeds to final judgment, we find that (1) the lower court’s order does not necessarily deprive appellant of that right and (2) review of the proposed question need not wait until final judgment.

First, the lower court only denied appellant’s motion for a protective order; it did not order him to answer the questions. This distinction, however, may be of little practical significance to appellant. If appellant still refused to answer the proffered questions, see Lower Court Opinion at 2, the court could, based on its denial of the motion for a protective order and “on such terms and conditions as are just, order that any party or person provide or permit discovery.” Pa.R.Civ.P. 4012(a); id. comment.

Appellee apparently believes that such an order has been entered here because his brief is devoted to arguing that such an order, directing the nonparty witness to answer the propounded questions, is not a final appealable order. Instead, appellee asserts that appellant could litigate the propriety of the discovery order only in the context of contempt proceedings brought against appellant for failure to comply with the order. We cannot decide this issue, however, because neither a discovery order directing appellant to be deposed nor a contempt order imposing sanctions against appellant for refusing to be deposed is presently before us. We point out, nonetheless, that, under existing caselaw, should one of those orders be entered against appellant, then appellant could arguably appeal from that order. Compare Pennsylvania Human Relations Commission v. Jones & Laughlin Steel Corp., 483 Pa. 35, 394 A.2d 525 (1978), and Petition of Specter, 455 Pa. 518, 317 A.2d 286 (1974), with Kine v. Forman, 412 Pa. 163, 194 A.2d 175 (1963), and International Coal Mining Co. v. Pennsylvania Railroad Co., 214 Pa. 469, 63 A. 880 (1906). Therefore, appellant’s claims can be reviewed on appeal before final judgment.

Accordingly, we hold that the order denying appellant’s motion for a protective order is not appealable.

Appeal quashed.

       Appellee requests “this Court [to] give all concerned directions with regard to the issues raised by [appellant]” so as "to avoid a time-consuming, second appeal...." (Supplemental Brief for Appellee at 9). Because we have found the order appealed from nonappealable, however, we cannot rule on the merits of appellant's claims.