author: POPOVICH, Judge:

text:
    449 A.2d 612
    Marian McDIVITT and Harry McDivitt v. PYMATUNING MUTUAL FIRE INSURANCE COMPANY. Appeal of Harry McDIVITT.
    Superior Court of Pennsylvania.
    Submitted April 12, 1982.
    Filed Aug. 6, 1982.

      Joseph J. Liotta, III, Franklin, for Harry McDivitt, appellant.
    John D. Petruso, Meadville, for Marian McDivitt, appellee.
    John W. McWilliams, Mercer, for Pymatuning, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal filed by the appellant, Harry McDivitt, from an Order of the Court of Common Pleas of Mercer County awarding appellee, Marian McDivitt, the proceeds due on a fire insurance policy payable on property held as tenants by the entirety. We affirm.

The facts, as garnered in part from the parties’ submission of a statement of the case—captioned “CASE STATED”— with the Prothonotary of Mercer County on August 21,1980, are as follows:

* *
4. Marian McDivitt and Harry McDivitt are wife and husband, but have lived separate and apart since November, 1971.
5. Marian McDivitt and Harry McDivitt are joint owners of real estate in French Creek Township, Venango County, Pennsylvania, as tenants by the entireties, said property having been purchased on May 5, 1966... .
6. Since the separation of the parties in November, 1971, Marian McDivitt has resided on the jointly owned property in French Creek Township, Venango County, Pennsylvania, and Harry McDivitt has not contributed to the maintenance, expenses, taxes, etc. for the subject property.
sfc 4s * :{: #
8. On or about September 14, 1973, . . . after the separation of the parties, Marian McDivitt applied for and received fire insurance from the Pymatuning Mutual Fire Insurance Company, policy number 6091, for the dwelling and barn located on the jointly owned property in French Creek Township, Venango County, Pennsylvania. . ..
9. Marian McDivitt was the named insured on the fire insurance policy issued by Pymatuning Mutual Fire Insurance Company.
10. The amount of insurance on the dwelling located on the aforedescribed premises provided by Pymatuning Mutual Fire Insurance Company, policy number 6091, was $6,000.00.
11. On or about April 2, 1975, the dwelling or house on the aforedescribed premises was totally destroyed by fire.
$ He $ $ ‡ $
13. Harry McDivitt was not a party to the contract of insurance issued by The Pymatuning Mutual Fire Insurance Company with respect to the aforedescribed premises.
‡ ‡ ‡ ‡ *i*
15. Marian McDivitt paid all premiums on the contract of insurance issued by Pymatuning Mutual Fire Insurance Company and Harry McDivitt paid no premiums on the contract of insurance issued by Pymatuning Mutual Fire Insurance Company.
16. The Pymatuning Mutual Fire Insurance Company refused to make payment of the proceeds of the policy number 6091 to Marian McDivitt.
17. On May 22, 1978, Marian McDivitt filed a praecipe to issue a Writ of Summons in Assumpsit at the above number against Pymatuning Mutual Fire Insurance Company. . . .
18. On or about January 2, 1979, Harry McDivitt presented to th[e] Court and filed a Petition to Intervene in the suit instituted by Marian McDivitt . . ., [which was granted.]
19. On or about February 13, 1979, the Pymatuning Mutual Fire Insurance Company presented to th[e] Court and filed a Petition to pay money into Court and to interpled Marian McDivitt and Harry McDivitt, claimants to the fund; and by Order of th[e] Court of the same date, Pymatuning Mutual Fire Insurance Company was ordered and directed to pay the sum of $5,994.76 to the Prothonotary of Mercer County.
22. Marian McDivitt claims the sum of $5,994.76 plus all accumulated interest thereon, being all the remaining proceeds of the policy of fire insurance issued by The Pymatuning Mutual Fire Insurance Company ....
23. Harry McDivitt claims one-half of the sum of $5,994.76, i.e., $3,977.38, plus one-half of the accumulated interest thereon . . . . ”

The trial court, after reviewing the admitted facts, resolved the issue in favor of the appellee. The appellant filed exceptions thereto, which were ultimately denied. This appeal followed.

The question on appeal, which is one of first impression in Pennsylvania, is whether the proceeds of a fire insurance policy payable on property held in tenancy by the entireties are due both spouses, despite the fact that the policy was issued in the name of, and the premiums were paid by, only one spouse.

Appellant-husband posits that because “the essential characteristic of a tenancy by the entireties is that each spouse is seized of the whole of the property and not of any share, devisible part, moiety or interest thereof[,]” a fire insurance policy naming one spouse as the only insured inures to the benefit of the entire estate as owned by the spouses and both should share in the proceeds from the policy. (Appellant’s Brief at 10-11) In support thereof, appellant cites us to Carter v. Continental Insurance Company of New York, 242 N.C. 578, 89 S.E.2d 122 (1955) and Couch on Insurance, Second, § 29.10, which, interestingly enough, draws its strength from Carter. Appellee-wife, on the other hand, urges that Carter and Couch are distinguishable, and “submits the important consideration is the nature of insurance coverage.” (Appellee’s Brief at 4) We agree with the position espoused by the appellee, and for the following reasons we affirm the order of the lower court.

We concede that in Carter the court held that a husband who recovers on a policy owned by him which covers property held by the entirety, recovers for the benefit of the estate. More precisely, the court stated that, upon absolute divorce, the wife was entitled to one-half of the proceeds, even though she was not named as insured or beneficiary in the policy and had not contributed to the payment of premiums. For the most part; though, such case dwells on the special nature of the entirety relationship, a point which we find misses the mark. To elucidate, in the present case the insurance proceeds do not result from any transfer of title, voluntary or involuntary. The land is still owned by the husband and wife in exactly the same manner as before the fire. The disputed funds result solely from the terms of the contract of insurance. On this exact point, we quote with approval the language used in Forsyth County v. Plemmons, 2 N.C.App. 373, 163 S.E.2d 97 (1968), in which the court dealt with a situation similar to the case at bar, except both husband and wife were parties to the insurance contract:

“Under this contract the [fire] insurance company, in consideration of the premium paid to it, has assumed specified risks and has agreed to pay money to the parties insured upon the happening of certain events. Such a policy is a personal contract, appertaining to the parties to the contract and not to the thing which is subject to the risk insured against. 29 Am.Jur., Insurance, § 183, p. 575. Proceeds payable thereunder when an insured loss occurs take the place of the building destroyed only in the sense of being a thing of like value, not necessarily of like ownership.” (Emphasis added) Id. at 375, 163 S.E.2d at 99.

Similarly, in this jurisdiction, our own Supreme Court has stated:

“A fire insurance policy is a personal contract. An important feature of such indemnity is the personal equation that exists between insurer and insured. The building itself is not insured; the indemnity is provided for the insured and for his interest in the property[.]” (Citation omitted) In re Gorman’s Estate, 321 Pa. 292, 295, 184 A. 86, 87 (1936).

Accord Donovan v. New York Casualty Co., 373 Pa. 145, 94 A.2d 570 (1953); Christ Gospel Temple v. Liberty Mutual Insurance Co., 273 Pa.Super. 302, 417 A.2d 660 (1979); see also St. Paul Fire and Marine Insurance Co. v. Molloy, 291 Md. 139, 433 A.2d 1135 (1981); Lovell v. Rowan Mutual Fire Insurance Co., 302 N.C. 150, 274 S.E.2d 170 (1981); Shorey v. Merchants Mutual Insurance Co., 72 A.D.2d 558, 420 N.Y. S.2d 755 (1979); Morris v. Morris, 274 Or. 127, 544 P.2d 1034 (1976) (citing cases); 43 Am.Jur .2d, Insurance, § 194.

Therefore, the mere fact that property is held by the entirety should not, standing alone, automatically entitle an uninsured spouse to benefit from the efforts of the other spouse in indemnifying the homestead against damage and/or destruction. Property ownership, in this context, is of minimal importance in determining entitlement to the proceeds of insurance, since the nature and extent of the various rights and obligations of the parties are governed by the terms of the insurance contract. See St. Paul Fire and Marine Insurance Co. v. Molloy, supra. In this regard, we are in accord with the sentiments expressed by the Supreme Court of North Carolina in Lovell v. Rowan Mutual Fire Insurance Co., supra, where it said:

“ ‘The unity of person of husband and wife [expressed through the tenancy by the entirety] gives no clue to the relationship that ought properly to obtain between the owners of the proceeds of insurance . . . . ’ Hawthorne v. Hawthorne, supra, [13 N.Y.2d 82] 242 N.Y.S.2d at 51, 192 N.E.2d [20] at 21.” 274 S.E.2d at 173.

In like fashion, in Steigler v. Insurance Co. of North America, 384 A.2d 398 (Del.Supr.1978), the Delaware Supreme Court, in deciding that an innocent, “insured” spouse was entitled to recover one-half of the insurance proceeds on entireties’ property intentionally burned by the husband, found the legal fiction of “oneness” of husband and wife inapposite to a contract dispute between an insurance company and a policy holder. Resolution of the relative rights of the parties was deemed governed by contract law rather' than the law governing land titles.

Based on the aforesaid, we find the fact that the property owned by the McDivitt’s was held by the entireties to be of no real significance to the resolution of the issue whether Mr. McDivitt may be entitled to one-half of the proceeds from the fire insurance, payable as a result of the destruction of the entireties’ property. See St. Paul Fire and Marine Insurance Co. v. Molloy, supra. As just stated, “we look to the law governing the kind of problem rather than the law governing land titles.” Steigler v. Insurance Co. of North America, supra, 384 A.2d at 400.

We note that the problem of determining the persons entitled to proceeds is often simplified by the fact that one spouse was in fact acting on behalf of both so that the problems which arise when one spouse purports to insure on his own behalf only his own interest or the entire interest of both spouses are eliminated. 5 Couch on Insurance 2d, § 29.10, p. 275. Instantly, the fire insurance policy designates “Mrs. Marian McDivitt” as the named “insure[d].” Elsewhere in the compact it is provided that the amount of insurance and the property covered consist, in part, of “$6,000.00 on Dwelling House (including Porches and all permanent fixtures).” Thus, it appears that the obligations of the insured runs only to the named insured. Nowhere in the policy does the insured extend its liability to a person or persons not a party to the contract.

Additionally, so far as appears from the uncontroverted record, the wife took out the insurance in her own right, paid the premiums from her own funds; and it does not appear it was done for the common benefit of herself and husband. In this context, “[i]t is generally held that the husband has, in such case, no claim on the fund as against the insurer.” (Citations omitted) Miles v. Miles, 211 Ala. 26, 29, 99 So. 187, 190 (1924); see also Russell v. Williams, 58 Cal.2d 487, 24 Cal.Rptr. 859, 862, 374 P.2d 827, 830 (1962); cf. Evans v. Evans, 263 Ark. 291, 564 S.W.2d 505, 507 (1978) (wife’s payment of one-half of the insurance premium was uncontradicted and, because possession of the property had been given to her as part of an award of separate maintenance, she was entitled to proceeds); In re Estate ol McGee, 66 Ill.App.3d 994, 23 Ill.Dec. 141, 383 N.E.2d 1012 (1978) (joint funds used to pay insurance premiums). We agree with such position, in light of the fact that, since the passage of the Act of July 15, 1957, P.L. 969, No. 417, § 1, 48 P.S. § 32.1, “a married woman shall have the same right and power as a married man ... to make any contract in writing . ... ” Thus, the appellee-wife was competent to enter into the contractual agreement with the insured to protect her insurable interest in the property. Kanefsky v. National Commercial Mut. Fire Ins. Co., 154 Pa.Super. 171, 174, 35 A.2d 766, 768 (1944) (an insurable interest has been defined as an interest which can be enforced at law or in equity); 18 P.L.E. Insurance § 53. Therefore, because we regard the rights of husband and wife to be separate, as they pertain to the particular contract in question, both logic and justice require that the amount recoverable be premised on the written agreement. As a result, we determine that the insured spouse is entitled to be compensated by receiving the entire amount provided for under the policy for the destruction of the homestead.

To permit recovery to the appellant-husband, who was not a named insured, would necessitate reliance on the “oneness” legal fiction of marital property, which we have rejected in determining that the appellee-wife enjoys and assumes several, not joint, contractual rights and obligations. Consequently, absent language making the appellant-husband a party to the agreement, we have no hesitation in concluding that “an ordinary person owning an undivided interest in property .. . would [not] naturally suppose that his individual interest in the property was covered by a policy which [did not] name[] him ... as one of the persons insured.” Hoyt v. New Hampshire Fire Insurance Co., 92 N.H. 242, 244, 29 A.2d 121, 123 (1942). Furthermore, on this subject, the lower court stated:

“There is, of course, a well-established presumption with regard to entireties property that during the term of the marriage such spouse has the power to act for both without specific authorization so long as the benefit of such action inures to both. J.R. Christ Const. Co., Inc. v. Olevsky, 426 Pa. 343, 232 A.2d 196 (1967). This, however, is far from [appellant-husband’s] contention that the power to act for both spouses creates a duty of a tenant to preserve the property and thereby to give a right to one-half of [the] insurance proceeds secured and paid for solely by the other party. The attorneys have failed to supply this Court nor has its own research found any case in Pennsylvania so holding.” (Lower Court Opinion at 9)

We agree with the sentiments espoused by the lower court. Moreover, our own assiduous review of the relevant case law has not produced any case which compels a result other than that reached in the case sub judice.

Order and judgment affirmed.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    449 A.2d 617
    COMMONWEALTH of Pennsylvania v. Lee SANDERS, a/k/a Lee Lawrence, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 22, 1981.
    Filed Aug. 6, 1982.

      Anthony D. Reagoso, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal by the defendant-appellant from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County revoking probation and imposing a sentence of three to six (3 to 6) years to be served consecutively to a sentence imposed by Judge Porter in another matter. The defendant contends (1) ineffective assistance of counsel; (2) that he was denied a speedy revocation hearing; and (3) that he did not receive proper notice of the alleged violations of his probation prior to the revocation hearing. These contentions are without merit and we affirm the court below.

The defendant was tried on June 20, 1974 before Judge Rosenberg, non-jury. He was found guilty of possessing an instrument of crime and robbery. He was sentenced on September 18,1974 of a prison term of eight to twenty-three (8 to 23) months on the robbery charge and to a consecutive term of probation for seven (7) years on the possession of instrument of crime charge.

On April 4,1976 he was arrested and charged with burglary. He was convicted of this crime by Judge William Proter, non-jury, on September 13, 1976. He was then sentenced to a term of imprisonment of one to five (1 to 5) years.

On October 5, 1976, the defendant appeared before Judge Rosenberg for a violation of probation hearing based on the conviction. His probation was revoked and he was sentenced to a term of three to five (3 to 5) years. No direct appeal was taken. On July 5, 1979 after post conviction hearing, he was permitted to file an appeal, nunc pro tunc.

The Gagnon II hearing is to insure against detention of a parolee or probationer on allegations of violations that have no foundation of probable cause. However, when the alleged violations of the terms of probation, as here, are the commission of a crime, the preliminary hearing at which the prosecution proves a prima facie case makes a Gagnon II hearing unnecessary. Commonwealth v. Perry, 254 Pa.Superior Ct. 48, 385 A.2d 518 (1978).

A revocation hearing must be held “as speedily as possible”. Pennsylvania Rule of Criminal Procedure 1409. It must be held within a reasonable time. This issue was not raised at the revocation hearing. Commonwealth v. Reggie, 264 Pa. Superior Ct. 427, 399 A.2d 1125 (1979).

Where there has been knowledge that another crime has been committed by the defendant probationer, it is sufficient that the court which imposed probation should act promptly after conviction. Commonwealth v. Williams, 254 Pa. Superior Ct. 202, 385 A.2d 979 (1978). Factors that are to be considered are: the length of delay; the reason for the delay; and the prejudice to the defendant. Commonwealth v. Smith, 266 Pa. Superior Ct. 234, 403 A.2d 1326 (1979). Reasonable promptness is required.

Here there was a delay of three months. The defendant, however, has not pointed to any prejudice he may have suffered. This hearing was held as speedily as possible. Commonwealth v. Whitfield, 281 Pa. Superior Ct. 51, 421 A.2d 1142 (1980).

The question raised with regard to notice is without merit. In Commonwealth v. Quinlan, 488 Pa. 255, 412 A.2d 494 (1980). The Supreme Court held that the Commonwealth need not produce evidence of compliance with the notice requirement when compliance with the requirement has not been challenged at the hearing. Here the claim is that the record is silent as to notice not that the defendant did not receive it. “If the probationer cannot allege a defect in notice he has not alleged an injury, and it is superfluous to repeat the entire hearing or any part thereof for the sole purpose of detailing proof of compliance with an uncontested procedural matter.” Id., 488 Pa. at 260-261, 412 A.2d 494.

As the court below said in reference to notice: “the petitioner’s brief states that he received the notice of the Gagnon II hearing and the detainer notice.”

The final contention is that his counsel was ineffective. The court below disposes of this in a rather long but interesting discussion of ineffectiveness of counsel as follows:

“Defendant’s last claim is that his counsel’s representation was ineffective as he failed to request documentation of or other supportable evidence of the facts revealed by the probation officer. However, these facts did not form a base upon which this Court violated petitioner on his probation date.
“Defendant suffered no prejudice by the information related by the probation officer. Defendant’s argument is without merit. Even if the Court had excluded all of the testimony concerning the reports by the probation officer, defendant’s probation would have been revoked. Defendant’s conviction by Judge Porter formed the basis of this Court’s revocation of the defendant’s probation. This Court stressed that defendant’s subsequent arrest and conviction formed the basis of the decision.
“It is clear that defendant has suffered no prejudice as there was sufficient basis for revoking probation absent reference to the probation officer’s report. Probation was not revoked on the basis of what the probation officer’s report contained.
“Defense counsel was effective. The seminal decision of Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527 (1932) has said that the right to representation includes the right to ‘effective’ and ‘adequate’ representation. Courts have employed a variety of formulae to characterize the degree of degeneration of the proceedings necessary before a finding of ineffective representation should be made. Com ex rel Washington v Maroney, 427 Pa 599, 602, 235 A2d 349, 352 (1967).
“However, whatever the applicable characterization, a Court is compelled to test, at least in some minimal way, the effectiveness of counsel’s efforts. Com ex rel Washington v. Maroney, supra, 427 Pa. at 602-3 [235 A.2d 349], The Courts of Pennsylvania have said ‘[T]he concept of “effective representation” must be strictly construed and no deprivation found to result unless appellant’s representation was so lacking in competence as to make a mockery of justice”. Com ex rel Mullenaux v Myers 421 Pa 61, 66-67, 217 A2d 730, 733 (1966)
See Com ex rel Crosby v. Rundle 415 Pa. 81, 87, 202 A.2d 299, 303 (1964) cert. denied 379 US 976, 13 L.Ed 2d 567, 85 S.Ct. 677 (1965)
“The standard of review for questions of ineffectiveness of counsel which was elucidated by our Supreme Court in Com. ex rel. Washington v. Maroney 427 Pa. 599, 235 A.2d 349 (1967) clearly set forth the test for effectiveness of counsel:
‘[Cjounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were reasonable, employing a hindsight evaluation of the record. Although, weigh the alternatives we must, the balance tips in favor of finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis”. Id., 427 Pa. at 604-5, 235 A2d at 352-3.
“Here, defendant suffered no prejudice by defense counsel’s allowing the probation officer to relate the information. A finding of ineffective-ness of counsel should never be made unless the Court can conclude that alternatives not chosen by counsel offered a potential for success sub-stantially greater than the tactics actually utilized. Com v Olivencia [265] Pa Super [439] 402 A2d 519 (1979). Defendant’s probation would have been revoked absent reference to the probation officer’s report. So even had defense counsel objected to the admission of the report, it would have made no difference to the outcome of the probation revocation hearing.
“The presumption exists that trial counsel is competent and a claim of ineffectiveness will not be successful unless it is sustained by the record or other credible evidence. Com. v. Sullivan 472 Pa. 129, 371 A2d 468 (1977). Here, from an independent review of the record and examination of counsel’s stewardship (in light of the available alternatives) the Court finds that counsel was effective. Review of the entire violation hearing reveals that defense counsel acted in a most vigorous manner. Defendant had representation in the role of an advocate. See Ellis v US 356 U.S. 674, 2 L.Ed.[2d] 1060, 78 S.Ct. 974 (1958). There existed a reasonable basis to support counsel’s chosen course and counsel’s representation did comport with constitutional mandates. In passing upon the claims of ineffective assistance the single question is whether counsel’s choice of strategy had some reasonable basis designed to effectuate his client’s interests. Com v Hudson 455 Pa 117, 314 A2d 231 (1973). Therefore, defendant’s claim of ineffective counsel is found to be lacking in merit.

We agree. The court below was correct in refusing to rule that defendant’s counsel was ineffective.

Judgment of sentence affirmed.


text:
    449 A.2d 620
    COMMONWEALTH of Pennsylvania v. Robert A. DUBUISSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1982.
    Filed Aug. 6, 1982.
    Paul James Esposito, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for the Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

The facts in this appeal from the revocation of probation are most important: On June 23, 1978 and November 10, 1978 the defendant, Robert A. Dubuisson, ehokéd two different women after they failed to submit to his sexual advances. He plead guilty to two counts of aggravated assault on March 29,1979. Judge Warren Morgan sentenced him to four (4) years probation.

About one (1) year later the defendant again choked a woman into unconsciousness for failing to submit to his sexual advances. He was convicted on September 25, 1980 of simple and indecent assault. On March 4, 1981 about five (5) months after conviction on the new charges, the defendant had a probation revocation hearing before Judge Morgan. Due to his conviction on the new charges, the probation was revoked. In his sentence, the sentencing judge expressed great concern about his prior criminal record and his decision to place him on probation so that he sentenced him to the maximum of five to ten (5-10) years imprisonment. At sentencing, the court explained its sentence as follows:

“THE COURT: I can assure you that so far as this defendant is concerned we have not overlooked anything that we felt would have a bearing on the judgment we are about to pass on him today. We didn’t the last time he was here. We caused a diagnostic study to be made of him. He looks as he stands, before us well dressed. I have sheaves of correspondence from friends, and neighbors in regard to him; but, there is something there that they don’t see that I saw the last time he was before me. The young man has had twelve adult arrests, leading to seven convictions. He has, and in ten years of experience that I have on this bench, the most shocking history of sexual and physical assaults on women. When he appeared before me in 1978 I very carefully considered his case. I was influenced by the character references and diagnostic study and I placed him on probation. I did that with apprehension and his conduct since that time has confirmed that my apprehension was justified. This man might have caused the death of four young women. He might be standing before me on a charge of murder. I am entirely persuaded that if I were to allow him to remain at liberty he, probably more than any other defendant who ever appeared before me for like offenses presents a real threat to the life of some woman. In my opinion the total confinement of this defendant is necessary because there is undue risk that during a period of probation or partial confinement the defendant is in need of correctional treatment that can be provided most effectively by confinement to an institution. Any lesser sentence then what we are about to impose would depreciate the seriousness of the crimes of this defendant, and the risk that we are absolutely persuaded he presents to this community.” The complaint concerning the sentence is without merit in

view of Judge Morgan’s colloquy.

The complaint concerning time credited is without merit. See Gaito v. Penna. Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980) where it was held that:

“Thus, if a defendant is being held in custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new charges, the time which he spent in custody shall be credited against his original sentence.
“If a defendant, however, remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence.”

Bail was set at $25,000 and the defendant failed to satisfy it. His sentence was computed from June 5, 1980.

A tripartite test is used in Pennsylvania to determine the reasonableness of the time period in revocation cases. The elements are the length of the delay, the reasons for the delay and the prejudice to the defendant. Here the length of delay was just over five (5) months. This period has not been found to be unreasonable. See Commonwealth v. Williams, 272 Pa.Superior Ct. 308, 415 A.2d 903 (1979).

In this case no reasons for the delay were put on the record due to the fact that no complaint of delay was made at the time of the hearing. See Commonwealth v. Rios, 255 Pa.Superior Ct. 556, 389 A.2d 117 (1978). Furthermore his allegations of prejudice are without merit.

Judgment of sentence affirmed.


author: PER CURIAM:

text:
    449 A.2d 621
    COMMONWEALTH of Pennsylvania v. William VanBUSKIRK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1981.
    Filed Aug. 6, 1982.

      Paul C. Hensel, Bethlehem, for appellant.
    Donald Corriere, District Attorney, Bethlehem, submitted a brief on behalf of the Commonwealth, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   PER CURIAM:

The instant appeal is from an adjudication of delinquency by the Juvenile Division of the Court of Common Pleas of Northampton County. For the reasons that follow, we quash the appeal.

This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742 (effective June 27, 1978) (emphasis added). “In determining what constitutes a final order we . . . look to ‘a practical rather than technical construction’ of an order.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citation omitted). “A final order is one which .. . ends the litigation, or alternatively disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974).” Pugar v. Greco, 483 Pa. at 73, 394 A.2d at 544-45. On the other hand, “an order is interlocutory and not final unless it effectively puts the litigant ‘out of court.’ ” Giannini v. Foy, 279 Pa. Superior Ct. at 556, 421 A.2d at 339 (citations omitted).

Instantly, appellant has appealed from the order, finding and adjudication of delinquency entered on March 6, 1980. The adjudicatory order is as follows:

ADJUDICATION
AND NOW, this 6th day of March, 1980, a full hearing in the case at bar having been concluded on March 4,1980, we enter the following:
FINDING
The evidence introduced by the Commonwealth and the alleged delinquent is sufficient to prove beyond a reasonable doubt that William Van Buskirk’s conduct amounted to “a gross deviation from the standard of care that a reasonable person would observe in his situation.” Accordingly, we make a finding of delinquency based on homicide by vehicle. See Commonwealth of Pennsylvania v. Theresa Barone, Superior Court of Pennsylvania, January 25, 1980, as yet unreported.[]
ADJUDICATION OF DELINQUENCY
Further, we find that William Van Buskirk is in need of treatment, supervision and rehabilitation and enter an adjudication of delinquency. Disposition is postponed until completion of a social investigation. Pending disposition, he may remain in the custody of his parents.

Adjudication, March 6, 1980 (emphasis added).

The Juvenile Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, 42 Pa.C.S.A. § 630 et seq., effective June 27, 1978, contemplates a two step process: First, an alleged delinquent must be found to be either delinquent or not delinquent; and second, if an adjudication of delinquency is entered, a disposition must follow. In the case sub judice, this process was not followed, and appellant’s appeal was taken from the adjudicatory order, prior to any disposition. “Until the [dispositional] hearing had been held and a final disposition made, the litigation was not ended, and [the appropriate form of treatment, supervision and rehabilitation] had not been determined. [The] finding of [delinquency], therefore, was interlocutory. In the Interest of C. A. M., 264 Pa. Superior Ct. 300, 303, 399 A.2d 786, 787 (1979). See, e.g., In the Interest of K. B., 276 Pa. Superior Ct. 380, 384 n.1, 419 A.2d 508, 510 n.1 (1980). See also In the Interest of McDonough, 287 Pa. Superior Ct. 326, 333-34, 430 A.2d 308, 312-13 (1981). Since the appeal thereof is not rendered appealable by statute or rule, the appeal is not properly before us.

Accordingly, the appeal from the order of the court of common pleas is quashed as interlocutory.

      . Neither party has challenged the jurisdiction of this court to resolve the questions raised in this appeal. It is axiomatic, however, that neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Giannini v. Foy, 279 Pa. Superi- or Ct. 553, 556, 421 A.2d 338, 339 (1980). Accordingly, we address the issue of the appealability of the adjudication of delinquency sua sponte. MacKanick v. Rubin, 244 Pa. Superior Ct. 467, 473, 368 A.2d 815, 818 (1976).

      . Commonwealth v. Barone, 276 Pa. Superior Ct. 282, 419 A.2d 457 (1980).

      . The Juvenile Act contains the following provisions governing the adjudicatory stage of a delinquency proceeding:
      (a) General rule.—After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child, or if the petition alleges that the child is delinquent, whether the acts ascribed to the child were committed by him. If the court finds that the child is not a dependent child or that the allegations of delinquency have not been established it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.
      (b) Finding of delinquency.—If the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent it shall enter such finding on the record and it shall then proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child is in detention, to hear evidence as to whether the child is in need of treatment, supervision or rehabilitation and to make and file its findings thereon. In the absence of evidence to the contrary, evidence of the commission of acts which constitute a felony shall be sufficient to sustain a finding that the child is in need of treatment, supervision or rehabilitation. If the court finds that the child is not in need of treatment, supervision or rehabilitation it shall dismiss the proceeding and discharge the child from any detention or other restriction theretofore ordered.
      (d) Evidence on issue of disposition.—In disposition hearings under subsections (b) and (c) all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports. Sources of information given in confidence need not be disclosed.
      (e) Continued hearings.—On its motion or that of a party the court may continue the hearings under this section for a reasonable period to receive reports and other evidence bearing on the disposition or the need for treatment, supervision or rehabilitation. In this event the court shall make an appropriate order for detention of the child or his release from detention subject to supervision of the court during the period of the continuance. In scheduling investigations and hearings the court shall give priority to proceedings in which a child is in detention or has otherwise been removed from his home before an order of disposition has been made.
      42 Pa.C.S.A. § 6341 (emphasis added).
      The alternatives for disposition of a delinquent child are set forth at 42 Pa.C.S.A. § 6352:
      (a) General rule.—If the child is found to be a delinquent child the court may make any of the following orders of disposition best suited to his treatment, supervision, rehabilitation, and welfare:
      (1) Any order authorized by section 6351 (relating to disposition of dependent child).
      (2) Placing the child on probation under supervision of the probation officer of the court or the court of another state as provided in section 6363 (relating to ordering foreign supervision), under conditions and limitations the court prescribes.
      (3) Committing the child to an institution, youth development center, camp, or other facility for delinquent children operated under the direction or supervision of the court or other public authority and approved by the Department of Public Welfare.
      (4) If the child is 12 years of age or older, committing the child to an institution operated by the Department of Public Welfare.
      (5) Ordering payment by the child of reasonable amounts of money as fines, costs or restitution as deemed appropriate as part of the plan of rehabilitation considering the nature of the acts committed and the earning capacity of the child.
      (6) An order of the terms of probation may include an appropriate fine considering the nature of the act committed or restitution not in excess of actual damages caused by the child which shall be paid from the earnings of the child received through participation in a constructive program of service or education acceptable to the victim and the court whereby, during the course of such service, the child shall be paid not less than .the minimum wage of this Commonwealth. In ordering such service, the court shall take into consideration the age, physical and mental capacity of the child and the service shall be designed to impress upon the child a sense of responsibility for the injuries caused to the person or property of another. The order of the court .shall be limited in duration consistent with the limitations in section 6353 (relating to limitation on and change in place of commitment) and in the act of May 13, 1915 (P.L. 286, No. 177), known as the “Child Labor Law.” [] The court order shall specify the nature of the work, the number of hours to be spent performing the assigned tasks, and shall further specify that as part of a plan of treatment and rehabilitation that up to 75% of the earnings of the child be used for restitution in order to provide positive reinforcement for the work performed. In selecting from the alternatives set forth in this section, the court shall follow the general principle that the disposition imposed should provide the means through which the provisions- of this chapter are executed and enforced consistent with section 6301(b) (relating to purposes) and when confinement that is consistent with the protection of the public and the rehabilitation needs of the child.
      (b) Limitation on place of commitment.—A child shall not be committed or transferred to a penal institution or other facility used primarily for the execution of sentences of adults convicted of a crime.

        Id. (footnote omitted).


text:
    449 A.2d 624
    COMMONWEALTH of Pennsylvania v. Vivian S. COGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1981.
    Filed Aug. 6, 1982.

      Kenneth B. Burkley, Greensburg, for appellant.
    Bernard F. Scherer, Assistant District Attorney, Latrobe, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   PER CURIAM:

Vivian S. Cogan was found guilty before a magistrate of speeding in violation of Section 3362(a)(3) of the Vehicle Code. Upon appeal and hearing de novo before the Court of Common Pleas of Westmoreland County, she was again found guilty and sentenced to pay a fine of $59.00, plus costs of prosecution. On appeal to this Court, she raises the interesting issue of whether the Borough of Latrobe could validly post a state highway which passed through the borough with 25 mph speed limit signs. Unfortunately, we are obliged to quash the appeal because appellant failed to file post trial motions in the trial court.

Trial de novo in this case was held prior to the decision in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) and prior to the revised comment to Pa.R.Crim.P. 1123. The comments of President Judge Cercone in Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981), therefore, are presently apt.

The state of this record is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.Pr. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, 292 Pa.Superior Ct. 224, 437 A.2d 16 (1981); Commonwealth v. Williams, 290 Pa. Superior Ct. 158, 434 A.2d 179 (1981). Cf. cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Walton, 289 Pa.Superior Ct. 411, 433 A.2d 517 (1981); Commonwealth v. Koziel, 289 Pa.Superior Ct. 22, 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Superior Ct. 92, 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the de novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence, in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123. The proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions. Appellant Picker, however, should not be faulted for his failure to do so because of the confusion which existed before Koch and the recent amendments to the Comments to Rules 67 and 1123 of the Rules of Criminal Procedure. See Commonwealth v. Johnston, supra, 292 Pa.Superior Ct. at 227 n.3, 437 A.2d 16.

Id., at 293 Pa.Superior Ct. 384-385, 439 A.2d at 163-164. See also Commonwealth v. Kauffman, 298 Pa.Super. 375, 444 A.2d 1222 (1982); Commonwealth v. Grey, 298 Pa.Super. 525, 445 A.2d 112 (1982); Commonwealth v. Dalbon, 296 Pa.Super. 122, 442 A.2d 326 (1982); Commonwealth v. Sims, 296 Pa.Super. 309, 442 A.2d 783 (1982); Commonwealth v. Spitzer, 292 Pa.Super. 466, 437 A.2d 768 (1981).

The order and judgment of sentence are vacated, and the case is remanded for the filing of post-verdict motions nunc pro tunc within 10 days of the filing of this order. Jurisdiction is not retained.

      . 75 Pa.C.S. § 3362(a)(3).


text:
    449 A.2d 625
    GATEWAY COAL COMPANY, a partnership, Appellant, v. Lawrence KELLY, Jr., and Larry Hall, individuals, and others in active concert or participating with them.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed Aug. 6, 1982.

      Robert C. Gombar, Pittsburgh, for appellant.
    Charles J. Morris, District Attorney, Waynesburg, for appellees.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from an order sustaining appellees’ preliminary objections and dismissing appellant’s complaint.

The action arose out of the picketing of appellant’s Gateway mine on March 17, 18 and 19, 1981 by appellees, who were not employees of appellant. Appellant’s employees honored the picket line, causing the shut down of the Gateway mine. On March 19, 1981, appellant filed a complaint seeking injunctive relief and money damages. On the same date, the court entered a preliminary injunction against further picketing and on March 24, 1981, the court entered an order that the preliminary injunction remain in effect until further order of court.

On May 8, 1981, appellees filed preliminary objections (1) in the nature of a demurrer, alleging there was no cause of action against the individual appellees, but rather the action was against their union; (2) alleging lack of subject matter jurisdiction, on the ground that the case was under the exclusive jurisdiction of the National Labor Relations Board (N.L.R.B.); (3) alleging a nonstatutory remedy; and (4) alleging lack of conformity to the Rules of Civil Procedure. Oral argument was held on June 7, 1981.

On September 9, 1981, the court entered an order sustaining “the demurrer” and dismissing the complaint. However, it is clear from the court’s opinion that the complaint was really dismissed on the court’s conclusion that it lacked subject matter jurisdiction. The court found that the matter constituted a labor dispute and was arguably subject to the Labor Management Relations Act. Therefore, the court held that its jurisdiction was preempted by the N.L.R.B. San Diego Building Trades Counsel v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). The court based its conclusion on the “fact” that appellees were members of the United Mine Workers Union, that they were employees of the Cumberland mine, owned by United States Steel Corporation, and that they were involved in a labor dispute with their employer. The nature of that dispute was not discussed.

The complaint makes no mention of any of the “facts” relied upon by the court. It merely alleges that certain “individuals” picketed its coal mine, interfered with its employment contracts and caused it monetary damage. The preliminary objections allege that appellees were members of the United Mine Workers. However, the objections were not endorsed with a notice to plead. Therefore, no responsive pleading by appellant was required and the averments are deemed to be denied. Pa.R.C.P. 1026, 1029(d).

The preliminary objection raising lack of subject matter jurisdiction clearly raised issues of fact. In such a case, the court must take evidence by deposition or otherwise. Pa.R. C.P. 1028(c). In this case, no sworn testimony was taken, either in court or by deposition, and no written interrogatories were filed. In fact, the record contains no evidence at all which would indicate that this matter might be within the jurisdiction of the N.L.R.B. Appellees contend that at oral argument, the court “became aware” of the fact that the pickets were United Mine Workers members who were involved in a labor dispute at a neighboring coal mine and that it “relied upon common knowledge of the community” that the matter claimed to constitute individual tortious acts was in reality a labor dispute. Unfortunately, that did not create a record for appellate review of the question of subject matter jurisdiction.

Where the evidence in the record does not adequately support the lower court’s disposition of preliminary objections, we will remand for further proceedings. Lox, Stock & Bagels, Inc. v. Kotten Machine Co., 261 Pa. Superior Ct. 84, 395 A.2d 954 (1978); Szekely v. Abilene F. Mills Co., 211 Pa.Super. 442, 237 A.2d 242 (1967). Therefore, we will remand this case so that the trial court may supplement the record by deposition, interrogatories or otherwise, which will allow for the proper resolution of the issues of fact raised by the preliminary objections.

Order vacated and case remanded for further proceedings in accordance with this opinion. Jurisdiction is relinquished.

      . This preliminary objection was later withdrawn.

      . Labor Management Relations Act, 1947, as amended, 29 U.S.C. §§ 141-187.


text:
    449 A.2d 627
    INNOVATION PRINTING AND LITHOGRAPHY, INC., Appellee, v. Robert KRAIN, Individually and d/b/a T. K. Graphics and Krain Graphics, Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1982.
    Filed Aug. 6, 1982.

      Joseph A. Caprara, Philadelphia, for appellant.
    Joseph Chicco, Philadelphia, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   PER CURIAM:

In this assumpsit action, an appeal from compulsory arbitration was heard nonjury before the Honorable Lawrence Prattis. A verdict in favor of the plaintiff, Innovation Printing and Lithography, Inc., and against the defendant, Robert Krain, individually and d/b/a T.K. Graphics and Krain Graphics, was entered on April 10, 1981. No exceptions were filed. A notice of appeal was filed on May 6, 1981.

Pa.R.C.P.No.l038(d) provides that following trial without jury, exceptions may be filed within ten days after notice of the filing of the decision. The rule provides further that “matters not covered by exceptions are deemed waived

In Ameringen v. Arcadia Company, Inc., 299 Pa.Super. 444, 445 A.2d 837 (No. 1110 Pittsburgh, 1980; 1982), we said:

A failure to file exceptions, as required by Pa.R.C.P.No. 1038(d), constitutes a waiver of errors which might have been raised; and an appeal from a decision to which no exceptions have been filed must be quashed. Matczak v. Matczak, 275 Pa.Super. 164, 418 A.2d 663 (1980); Gibson v. Miller, 265 Pa.Super. 597, 602, 402 A.2d 1033, 1036 (1979); Blake v. Mayo Nursing and Convalescent Home, Inc., 245 Pa.Super. 274, 369 A.2d 400 (1976). See also and compare Houston-Starr Company v. Virginia Mansions Apartments, Inc., 295 Pa.Super. 480, [441] A.2d [1334] (1982) (appeal from decree in equity quashed where exceptions not filed as required by Pa.R.C.P.No.1518). The need for such a rule is readily apparent. It assures that the trial court will have an opportunity to consider the averments of error made by a party and, if meritorious, to correct the same before an appeal is filed. Compliance is also essential to insure meaningful appellate review.

Appellant’s failure to file exceptions to the decision from which an appeal was taken compels that the appeal be quashed.

It is so ordered.

      . On May 8, 1981, twenty-eight days after the court’s decision and two days after an appeal therefrom had been taken, appellant filed in the trial court a motion to reconsider. This was denied on November 23, 1981.


author: CERCONE, President Judge: WIEAND, Judge,

text:
    449 A.2d 628
    COMMONWEALTH of Pennsylvania v. Leon J. BROBST, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 25, 1981.
    Filed Aug. 13, 1982.
    Petition for Allowance of Appeal Granted Nov. 4, 1982.

      James H. Rowland Jr., Harrisburg, for appellant.
    Marion E. MacIntyre, First Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND, and LIPEZ, JJ.
   CERCONE, President Judge:

Appellant, Leon J. Brobst, takes this appeal from his conviction for failure to pay Pennsylvania State Income Taxes for the years 1974, 1975, 1976 and 1977. Appellant argues, inter alia, that the trial court erred when it permitted appellant to proceed pro se without first conducting a thorough on-the-record colloquy to determine whether the defendant knowingly and understanding^ waived his right to assistance of counsel. We find this issue to have merit and we reverse.

Appellant is an independent businessman from Altoona, Pennsylvania trading under the names of Lee’s Auto Body and Inland Commercial Divers and Consultants. Appellant was indicted on four counts for failure to pay his state income taxes. At trial, appellant admitted that he did not pay taxes for the previously mentioned years but claimed he does not owe taxes because Congress repealed the gold standard in 1933.

Now on appeal appellant argues that the trial court did not adequately determine whether appellant knowingly and understandingly waived his right to assistance of counsel for trial. The record discloses that following his arrest, appellant filed a petition for a writ of habeas corpus because he could not make the $15,000.00 bail set for him. At the hearing on this petition, the court told appellant that if he could not afford an attorney then one would be appointed to represent him, but that if appellant could afford an attorney then appellant should “strongly consider” getting one to represent him and to raise his defenses. The court then released appellant on his own recognizance. Thereafter, appellant appeared in court for his arraignment. At that time the court again told appellant that if at any point he could not afford counsel, then counsel would be appointed for him without charge. Appellant was also told that appearing for trial without counsel would not be, in and of itself, grounds for a continuance. Nonetheless, appellant appeared for his trial on October 17, 1979 without counsel, whereupon the following colloquy was conducted by the court.

THE COURT: Are you going to represent yourself, sir?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Let me ask you, who are the men with you at counsel table?
THE DEFENDANT: Dr. James Randel to my right.
THE COURT: Is he going to be a witness?
THE DEFENDANT: No, he is going to be an advisory counsel for me.
THE COURT: Is he an attorney?
THE DEFENDANT: No, sir.
THE COURT: Who is the other one?
THE DEFENDANT: Gale Davis.
THE COURT: And is he a witness?
THE DEFENDANT: No, he is just another advisor for me.
THE COURT: Come up here once, Mr. Brobst. Let me explain a few things to you. First, not having counsel, is that because you can’t afford one or don’t you desire one?
THE DEFENDANT: I tried to find counsel that understands the issues and I could not find any licensed attorney that understands the issue that I have.
THE COURT: I must be certain that it is not an economic situation. I inquire because we have public defenders who we appoint to represent indigent defendants.
THE DEFENDANT: Yes, In [sic] understand.
THE COURT: That’s not the case?
THE DEFENDANT: No.

The court then proceeded to explain to appellant the implications of his waiver of the right to a trial by jury. As part of this colloquy, the court ascertained whether appellant could read and write in English, was under the influence of drugs or alcohol, or had ever been treated for a mental illness. The court also told appellant what the charges were against him. However, the court did not inform appellant of the possible range of sentences for the charges. The court then permitted appellant to keep his friends with him at counsel table, even though they were not attorneys.

In Commonwealth v. Hauser, 265 Pa.Superior Ct. 135, 401 A.2d 837 (1979), this Court examined the validity of a purported waiver of the right to trial counsel. We noted that although an accused has the right to trial counsel, he also has the right to represent himself. To avoid conflict between these two rights, the record must show that in waiving his right to counsel, the accused was aware of both the right to counsel and the risks attendant upon its waiver. We quoted from Von Moltke v. Gilles, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948), wherein the Supreme Court explained the trial court’s responsibility in determining whether there is a competent and intelligent waiver of the right to counsel:

To be valid such a waiver must be made with an apprehension of the nature of the charges, the statutory offenses included with them, the range of allowable punishments thereunder, possible defenses to the charges, and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. A judge can be certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

We went on to hold in Hauser that in view of the failure of the lower court to make certain that the accused understood “the charge and possible punishment, and the possible disadvantage of proceeding without counsel,” that the accused’s waiver of his right to counsel was not competently and intelligently made. See also Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978); Commonwealth v. Dale, 286 Pa.Superior Ct. 308, 428 A.2d 1006 (1981); Commonwealth v. Fowler, 271 Pa.Superior Ct. 138, 412 A.2d 614 (1979).

In the instant case, the court did not apprise appellant of the serious penalties which he faced if convicted. We therefore find that appellant’s waiver of counsel was not knowing and intelligent and we reverse and remand for a new trial. Reversed and remanded for a new trial.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

Although repeatedly told of his right to be represented by counsel and admonished to “strongly consider” doing so and although financially able to employ counsel, Leon J. Brobst, a businessman, elected to represent himself, with the assistance of two friends, on charges of failing to pay state income taxes. When asked why he had elected to represent himself, Brobst said that he had been unable to find an attorney who understood the defense which he wished to present. The majority, relying on cases in which a defendant was unable to afford counsel, holds that Brobst could not elect to represent himself unless a record colloquy demonstrated that he knew the maximum sentence if convicted. In my judgment this is an unnecessary formality under the circumstances of this case; and, therefore, I dissent. I would find the waiver of counsel to be a voluntary, knowing and intelligent act and would affirm the judgment of sentence. See Commonwealth v. Wentz, 280 Pa.Super. 427, 421 A.2d 796 (1980).

       In the above cited decision in Fowler, we remanded the case for a hearing on the issue of whether the waiver of counsel was valid. In a subsequent decision, the conviction was affirmed by this Court. See Commonwealth v. Fowler, 275 Pa.Superior Ct. 544, 419 A.2d 34 (1980).


author: SPAETH, Judge: WICKERSHAM, Judge,

text:
    449 A.2d 630
    COMMONWEALTH of Pennsylvania v. Robert RENO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 12, 1980.
    Filed Aug. 13, 1982.

      Norman A. Levine, New Castle, for appellant.
    Donald E. Williams, District Attorney, New Castle, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order denying a petition to withdraw a guilty plea. Appellant argues that the petition should have been granted because his guilty plea colloquy was deficient in several respects. We agree, and therefore reverse.

Appellant had been charged with rape and was tried in February 1976. The trial ended on February 18, 1976, in a hung jury. On February 23, 1976, appellant, pursuant to a plea bargain, pleaded guilty to aggravated assault.

Appellant argues, Appellant’s Brief at 9-10, and the Commonwealth admits, Appellee’s Brief at 11, that during the colloquy he was not informed of his right to file a petition to withdraw his guilty plea prior to sentencing or of his appellate rights. When the lower court has failed to inform the defendant of his right to file a' petition to withdraw a guilty plea, and the consequences of a failure to do so, an invalid waiver of the right to jury trial is conclusively inferred. Commonwealth v. McGarry, 280 Pa.Superi- or Ct. 527, 529 n.2, 421 A.2d 847, 848 n. 2 (1980) (citing cases). And see, Commonwealth v. Vigue, 279 Pa.Superior Ct. 46, 420 A.2d 736 (1980).

The colloquy was further deficient in that the lower court did not ascertain whether there was a factual basis for the guilty plea. Commonwealth v. Stolle, 254 Pa.Superior Ct. 483, 386 A.2d 53 (1978); Comment, Pa.R.Crim.P. 319. The Commonwealth admits this defect, too, Appellee’s Brief at 8-9, but argues that:

It was therefore made clear to the defendant although such clarity does not appear in the plea hearing record because reference was made to a prior record not recited of the nature of the charge and acts of which he was being asked to enter a plea.

Id.

This argument echoes the lower court’s holding that “[d]ue to the evidence produced at trial the previous week, it was clear that a factual basis for the plea was present and the plea was therefore accepted.” Slip op. at 3. We are unable to subscribe to this reasoning, for Pa.R.Crim.P. 319 makes inquiry into the factual basis for the plea mandatory at the colloquy. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1978). Moreover, the evidence that both the lower court and the Commonwealth refer to as having been produced at the previous trial is not of record. We therefore cannot give it any effect; this rule applies whether the evidence in question is recited in a brief, Marine Bank v. Huhta, 279 Pa.Superior Ct. 130, 420 A.2d 1066 (1980), or in the opinion of the lower court, In re Custody of Frank, 283 Pa.Superior Ct. 229, 423 A.2d 1229 (1980).

Finally, the colloquy was deficient in that the lower court did not inform appellant that the members of the jury had to be unanimous in their decision. This omission was reversible error. Commonwealth v. Dello Buono, 271 Pa.Superior Ct. 572, 414 A.2d 631 (1979); Commonwealth v. Carl, 267 Pa.Superior Ct. 156, 406 A.2d 566 (1979); Commonwealth v. Coxson, 262 Pa. Superior Ct. 14, 396 A.2d 460 (1978).

Given these several deficiencies in the colloquy, we conclude that appellant was entitled to withdraw his plea.

Reversed.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I would affirm the judgment of sentence.

On October 11, 1975, Robert Reno, appellant herein, was charged in a criminal complaint with the crime of rape, allegedly having had sexual intercourse with a female age 18, without her consent, by force and she not being his spouse, on October 10, 1975, in Shenango Township, Lawrence County. The case came to trial in February of 1976 before the Honorable John F. Henderson, President Judge and a jury with Alfred V. Papa, Esquire representing Robert Reno. The case ended with a “hung jury.”

One week later, appellant, Robert Reno, was again before Judge Henderson with his counsel, Mr. Papa and entered into a plea bargain. The following appeared, inter alia, at the plea colloquy:

THE COURT: Mr. Reno, you are charged on an indictment at No. 810 of 1975 with one count of rape, a felony of the first degree. You plead not guilty to these charges and this case was tried last week. At trial, the jury was unable to arrive at a verdict. It has been indicated to the Court now that you are prepared to enter a plea to lesser charges than this offense, is that correct?
MR. RENO: Yes.
MR. PAPA: In Mr. Reno’s behalf, that is correct and he can speak directly for himself.
THE COURT: Mr. Reno?
MR. RENO: Yes.
THE COURT: There has been some plea bargaining, I think, between Counsel and the District Attorney’s office, is that correct?
MR. PICCIONE: Yes, there has, Your Honor. If the Court please, Mr. Reno has agreed to plead guilty to the charge of aggravated assault. Specifically, it would be under Section 2702-A4 of the Crimes Code, which charges aggravated ass[a]ult, a misdemeanor of the first degree. In return for this plea of guilty, Your Honor, the Commonwealth has agreed that at the time of sentencing, it would recommend a nol-pros of the rape charge at No. 810 of 1975 or a reduction of the charge of rape to aggravated assault.
THE COURT: You will be, if you enter this plea, required to come into Court and be sentenced just as though you had gone to trial and been found guilty by a jury, and at that time you will be sentenced under a Statute that calls for a maximum period of imprisonment of five years and a maximum fine of ten thousand dollars and that’s the Statute under which you will be sentenced. Do you understand that?
MR. RENO: Yes.
THE COURT: Has there been any other plea bargaining that hasn’t been mentioned?
MR. PICCIONE: There has not, Your Honor.
THE COURT: Has there been any promises other than the promises that might have been involved in this plea bargain that induced you to change your plea or to enter a plea of guilty to the charge of aggravated assault?
MR. RENO: No, sir.
THE COURT: Any threats, coercion or force used against you that induced you to enter this plea?
MR. RENO: No.
THE COURT: Understanding all these things and the nature of the waivers you are making, are you prepared to enter a plea now of guilty to the charge of aggravated assault?
MR. RENO: Yes.
THE COURT: Alright, we will direct that the plea be taken.
MR. PICCIONE: May it please the Court, Your Honor, at No. 810 of 1975, ‘Now, this 23rd day of February, 1976, the Defendant, Robert Reno, has entered a plea of guilty to the lesser included offense of aggravated assault, Purdons Statu[t]e 2702-A4 only.’
THE COURT: Alright, thank-you. You are out on bail?
MR. RENO: That’s right.
THE COURT: You will be notified when you appear for sentencing.

Guilty plea colloquy, February 23, 1976, at 1-2, 5-7.

Appellant Reno did not appear for sentencing on April 5, 1976, and was declared a fugitive. He was arrested as a result of a bench warrant issued by the Lawrence County Court in 1979. On June 29, 1979, Alfred V. Papa, Esquire filed a petition to withdraw as counsel which was joined in by Robert Reno. On June 29, 1979, an order was entered permitting the withdrawal of Papa as counsel and directing that the Lawrence County Public Defender’s Office take over the further legal proceedings in the case.

On October 5, 1979, Robert Reno appeared before Judge Henderson represented by Norman A. Levine, Public Defender, for sentencing. The court reviewed with Reno his past criminal record and the following colloquy, inter alia, appeared:

THE COURT: Why didn’t you appear in 1975 for sentencing when you were scheduled to come in and be sentenced?
MR. RENO: Because I was doing work for a man in Steubenville, Ohio. I was working up here at Papa’s place. Al Papa this here and I got laid off. I was working for a guy, Charlie Pagalesi and his hotel burned out in Steubenville, Ohio and it was burned down and I was working down there and, to tell you the truth, it never even dawned on me about crossing from here to Ohio-Steubenville, Ohio, when I was working and then I got in this accident. I fell off a roof and I broke my spinal cord and sheared my spinal cord off and broke my back and I was in hospitals and nursing homes.
THE COURT: Ever since?
MR. RENO: Yes.
THE COURT: When did you do that?
MR. RENO: Five and a half years ago, just about, I think. I just came back from Johnstown Rehabilitation Center.
THE COURT: Did the hospital at the penitentiary send you to the rehabilitation center?
MR. RENO: No, I was there before I went there.
THE COURT: Well, we have a list here of your past record which, according to the list, at least, and I don’t know whether it is complete or not, but you have been in and out of jail and the penitentiary since 1956 on both misdemeanor and felony charges. Is that right?
MR. RENO: I did time twice. I was at the workhouse. I did one to two years there and I did three to six years at Hunnington [sic].
THE COURT: Three to six years at Western Penitentiary?
MR. RENO: No, Hunnington [sic], Pa.
THE COURT: You were committed to Western Penitentiary and they sent you to Hunnington [sic]?
MR. RENO: Yes.
THE COURT: That was 1964?
MR. RENO: Yes, I think so.
THE COURT: ’62—Lawrence County Jail, ’61, the Lawrence County Jail, ’61, the Lawrence County Jail, ’61, the Lawrence County Jail. ’56 you started at the Lawrence County Jail and then twice in the penitentiary. Is that right?
MR. RENO: Yes sir.
THE COURT: Well, Mr. Reno, it is the sentence of the Court that you pay the cost of prosecution; a fine of $1.00 and you undergo imprisonment in the State Penitentiary for a period of not less than two years or more than five years. I want you to understand that in determining what the sentence should be in this case, I consider the present charges against you; the fact that you did leave the jurisdiction and become a fugitive for several years; considering your past record and your own history and condition and personal history; considering the events of this case itself. I am considering everything that has been said here in Court today and I don’t know whether I said your past record or not, but I am certainly considering your past record and I am also taking into consideration your physical condition. It is my opinion that, Mr. Reno, that if you are not committed to total incarceration, complete and total confinement, there is a serious danger of you becoming involved in further criminal activity as you have in the past. I think that anything other than total confinement would depreciate the seriousness of this crime. If you were placed on probation, I don’t think there is any question but what your past record indicates that that wouldn’t mean anything to you and you would continue to commit criminal activities. This is the minimum amount of confinement that I find is consistent with the protection of the public and your own rehabilitative needs.

Sentencing transcript, October 5, 1979, at 4-8.

Thereafter, appellant filed a motion challenging the validity of the 1976 guilty plea and a motion for modification of sentence, both of which motions were denied by Order of Court dated December 20, 1979. In the interim a direct appeal was taken to this court from the judgment of sentence entered October 5, 1979.

I agree with that portion of the Opinion of Judge Henderson dated December 20, 1979, where he analyzes the facts and issues as follows:

At the colloquy preceeding [sic ] acceptance of the plea, the Court explained the elements of the crime of aggravated assault to the Defendant. He indicated that he understood the charge and desired to plead guilty. Defendant was also informed of his rights, including his right to trial by jury, his right to confrontation, his privilege against self-incrimination and his presumption of innocence and was told that by pleading guilty he was waiving these rights. He again indicated his understanding and desire to plead guilty.
The defendant was informed that he would be required to appear for sentencing, and at that time would be sentenced under a statute calling for a maximum period of imprisonment of 5 years and a maximum fine of $10,000. Defendant understood and accepted this. He further indicated, as did the Assistant District Attorney, that there had been no other plea bargaining, promises, threats, coercion or force used to induce him into pleading guilty. Defendant also indicated that he was satisfied with the representation of trial counsel.
Due to the evidence produced at the trial held the previous week, it was clear that a factual basis for the plea was present and the plea was therefore accepted.
Although the recent case of Commonwealth v. McCall, 267 Pa.Super. 351,406 A.2d 1077 (1979), indicates that a defendant who alleges his plea was unlawfully induced by counsel’s ‘promise’ of a lighter sentence is generally entitled to an evidentiary hearing even though he had stated at the colloquy that his plea was not so induced, we believe that decision applies only to cases where the record does not clearly refute the claim. See, Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978).
In the case at bar, not only did Defendant deny any other promises, the Assistant District Attorney did also. In addition, the Defendant was specifically told that he would be sentenced and was told what the maxim[u]m terms of that sentence would be. It was not until after sentencing, over 3Va years later that Defendant first indicated any hesitancy. Even then, he did not state that either the Commonwealth or his attorney had said he would not be imprisoned. He stated only that he told his attorney he did not want to do any time. His statement further indicated that his plea was also based on financial considerations (even though he was aware that free, court-appointed counsel was available). [Sentencing transcript, October 5, 1979, at 11-13.]
Thus, the record clearly indicates not a promise of non-imprisonment, but rather an attempt on the part of the Defendant to test the waters by pleading guilty and then retracting his plea if he was sentenced to imprisonment. There is no indication of improper inducement and Defendant’s plea was therefore properly accepted.
In imposing sentence, the Court considered the nature of the charges, Defendant’s actions in failing to appear for sentencing and becoming a fugitive for several years, his past record, which included numerous offenses (both felonies and misdemeanors), as well as the Defendant’s health, including the serious nature of his present injuries. It was and is our opinion that the present sentence is the minimum amount which is consistent with the protection of the public and the Defendant’s rehabilitative needs.

Lower Ct. Op. at 2-4.

It is clear that when a defendant wishes, after the imposition of sentence, to withdraw his guilty plea, there must be a showing of prejudice on the order of manifest injustice. Commonwealth v. Robinson, 253 Pa.Super. 496, 385 A.2d 448 (1978); see also Commonwealth v. Hayes, 462 Pa. 291, 300 n. 7, 341 A.2d 85, 90 n.7 (1975). I find under all the evidence and the record in this case that appellant has failed to prove that his plea was involuntary and that the lower court properly denied appellant relief.

Finally appellant raises a question concerning the sentence imposed and whether the lower court abused its discretion in sentencing. I find no abuse of discretion. What we said in Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980) (Opinion by Judge Hoffman) is pertinent here.

Appellant contends that his sentence was excessive and not sufficiently supported by a statement of reasons. We disagree. Appellant was sentenced to three-and-one-half-to-seven years imprisonment, fined $35,000.00, and charged costs for his four violations of the Controlled Substance, Drug, Device and Cosmetic Act. That sentence is within the limits established by the Act and we do not find it excessive. Id., § 13(b)-(h), 35 P.S. § 780-113(b)-(h). In Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976), the Supreme Court stated that the individualized determination inherent in the sentencing process required, at the minimum, a consideration of the particular circumstances of the offense and the character of the defendant. See also Commonwealth v. Rig-gins, 474 Pa. 115, 377 A.2d 140 (1977). In Commonwealth v. Pauze, 265 Pa.Super. 155, 158, 401 A.2d 848, 849 (1979), this Court noted that great deference is to be given to the trial court’s discretion in sentencing, and that the reasons therefor must be set out in the record so that a determination can be made that discretion was, in fact, exercised.

Id., 282 Pa.Superior Ct. at 298, 422 A.2d at 1125.

My review of the record reveals that the lower court complied with the mandates of Martin and Riggins. The sentencing colloquy amply shows that the lower court was aware of appellant’s background information and gave long and deliberate consideration to the details.

      . Appellant did not appear on the date he was scheduled to be sentenced, July 26, 1976. He was later found and on October 5, 1979, was sentenced to two to five years in prison. In the meantime, he had sustained a spinal cord injury in a fall from a roof, which rendered him a paraplegic. Appellant argues that his sentence was excessive in view of his physical condition. We do not reach this issue. Commonwealth v. Paige, 287 Pa.Superior Ct. 133, 142 n.3, 429 A.2d 1135, 1140 n. 3 (1981).


author: SPAETH, Judge:

text:
    449 A.2d 636
    COMMONWEALTH of Pennsylvania v. James TOLASSI, James Shirley, Robert Layton, Jr., Joseph Taylor, Richard McClain, Jack Yocum, Joseph O’Brien, Michael Dolinski, Michael O’Brien, Max Hinkel, III, and Russ Columbo, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed Aug. 13, 1982.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.

      Robert F. Simone, Philadelphia, for appellants.
    David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   SPAETH, Judge:

These appeals are from orders dismissing appellants’ petitions to vacate their sentences as illegal. We affirm.

Appellants were tried together in 1974 on charges arising from a labor dispute. Eight of them were convicted of rioting, malicious destruction of fences, and conspiracy; the remaining three—appellants Tolassi, Dolinski, and Michael O’Brien—were convicted of rioting and conspiracy but acquitted of malicious destruction of fences. The eight were each sentenced as follows: for rioting, one to three years imprisonment, $1,000 fine, and one-eleventh of the costs of prosecution; for malicious destruction of fences, three to six months imprisonment, concurrent with the term of imprisonment for rioting, $50 fine, and one-eleventh of the costs of prosecution; and for conspiracy, two years probation, to follow the term of imprisonment, $500 for the use of the county, to be paid during the first three months of the probationary period, and one-eleventh of the costs of prosecution. The three were each sentenced, for rioting, to nine months to two years imprisonment, $1,000 fine, and one-eleventh of the costs of prosecution for rioting, and for conspiracy, to two years probation, to follow the term of imprisonment, $500 for the use of the county, to be paid during the first three months of the probationary period, and one-eleventh of the costs of prosecution.

On direct appeal the judgments of sentence were affirmed by this court and the Supreme Court. Commonwealth v. Tolassi, 258 Pa.Superior Ct. 194, 392 A.2d 750 (1978), aff’d, 489 Pa. 41, 413 A.2d 1003 (1980). On direct appeal, appellants did not challenge the propriety or legality of their sentences. However, within a matter of weeks after the record of their cases was returned by the Supreme Court to the lower court, and two days after they began serving their sentences, they filed petitions to vacate the sentences as illegal. These appeals are from the lower court’s orders dismissing those petitions.

Appellants argue that their sentences are illegal because the lower court did not order pre-sentence reports or state of record its reasons for not doing so; because the sentences are uniform instead of individual, that is, appellants convicted of the same crimes received the same sentences, without reference to differences in their individual backgrounds; and because the lower court did not state of record its reasons for the sentences. We find no merit in these arguments.

It is true that under current law, when incarceration for one year or more is a possible sentence the lower court must state of record its reasons for not ordering a pre-sentence report. Pa.R.Crim.P. 1403(A)(2). It is also true that the combined effect of Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), is that sentences may not be uniform but must be individual, and that the lower court must state of record its reasons for the sentences. And see Pa.R.Crim.P. 1405(b); 42 Pa.C.S.A. § 9721(b). These requirements, however, were not in effect when appellants were sentenced, on September 3, 1975, and we see no reason to give appellants the benefit of them now.

When the law applicable to a case changes while the case is pending on direct appeal, an appellant may argue that he should have the benefit of that change, for he is in the position of making the argument at his first opportunity. Tice v. Nationwide Life Ins. Co., 284 Pa.Superior Ct. 220, 230-36, 425 A.2d 782, 787-91 (1981) (concurring opinion by SPAETH, J.) (collecting cases and reviewing the development of the law). Thus it has been argued—successfully— that the requirement of Riggins that the lower court state of record its reasons for the sentence should be applied where the sentence was pre-Riggins but, pending appeal, Riggins was filed. Commonwealth v. Jefferson, 484 Pa. 115, 398 A.2d 971 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Steward, 276 Pa.Superior Ct. 64, 419 A.2d 96 (1980); Commonwealth v. Young, 272 Pa.Superior Ct. 82, 414 A.2d 679 (1979). Appellants, however, did not proceed in this way. They did not argue Martin or Riggins or complain about the absence of a pre-sentence report, when their cases were on appeal. Instead, they waited until after their appeals had been heard and their sentences affirmed. It was only after starting to serve their sentences that appellants made the arguments they urge upon us now, by filing petitions to vacate the sentences as illegal. That was too late. By then appellants had waived their arguments. The lower court therefore properly dismissed their petitions.

Appellants seek to avoid this result by invoking the principle that the illegality of a sentence is not subject to waiver. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). This principle, however, does not save them, for it does not embrace the sort of defects that appellants complain about.

Typically, the sort of defect that is not subject to waiver— which is what is really meant by saying that a sentence is “illegal”—will appear on the face of the record and will go to the power of the court to impose sentence. Thus the sentence may be outside the statutory limits for the crime of which the defendant was convicted. Commonwealth v. Brunner, 243 Pa.Superior Ct. 55, 364 A.2d 446 (1976). Or it may appear that there was no finding of guilt to_ support the sentence. Commonwealth v. Paige, 287 Pa.Superior Ct. 133, 429 A.2d 1135 (1981). Or the defendant may have been sentenced separately for two inchoate offenses where only one ultimate crime was intended. Commonwealth v. Martinez, 293 Pa.Superior Ct. 260, 438 A.2d 984 (1981). Sometimes the claim is that convictions of two separate crimes should merge for sentencing because there was only one criminal act. In such a case, whether the sentence is illegal depends on whether it is clear from the indictment that there was only one criminal act, in which case the defect is apparent on the face of the record and the sentence is illegal. Commonwealth v. Walker, supra. If it can not be determined from the indictment whether there was only one criminal act, the defect is not apparent and the claim that the sentence was improper is subject to waiver. Commonwealth v. McCabe, 242 Pa.Superior Ct. 413, 364 A.2d 338 (1976), aff’d per curiam, 479 Pa. 273, 388 A.2d 323 (1978).

The requirements that the lower court must state of record its reasons for not ordering a pre-sentence report, Pa.R.Crim.P. 1403(A)(2); that sentences must not be uniform but individualized, Commonwealth v. Martin, supra; Commonwealth v. Riggins, supra ; and that the lower court must state of record its reasons for the sentence, Commonwealth v. Riggins, supra; Pa.R.Crim.P. 1405(b), are all requirements intended to improve the quality of sentencing and to aid appellate review. They do not implicate the power of the court to impose sentence, and the failure to comply with them does not render a sentence “illegal” within the principle that the illegality of a sentence is not subject to waiver, any more than a judge’s failure to make a correct evidentiary ruling makes the resulting verdict “illegal.” Thus we have repeatedly held that the claim that a sentence should be vacated because of the lower court’s failure to state of record its reason for the sentence will be waived if not made in a motion to modify the sentence, filed pursuant to Pa.R.Crim.P. 1410. Commonwealth v. Walton, 289 Pa.Superior Ct. 411, 433 A.2d 517 (1981); Commonwealth v. Turecki, 278 Pa.Superior Ct. 511, 420 A.2d 658 (1980); Commonwealth v. Morris, 273 Pa.Superior Ct. 477, 417 A.2d 748 (1979), rev’d on other grounds, 492 Pa. 565, 424 A.2d 1336 (1981). Any other result would be inconsistent with the principle of Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), that even claims of “fundamental error” may be waived.

Affirmed.


text:
    449 A.2d 639
    Charles TATE v. Anthony MacFARLAND and Salvatore DelCiotto. Appeal of Salvatore DelCIOTTO. Charles TATE, Appellant, v. Anthony MacFARLAND and Salvatore DelCiotto.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed Aug. 13, 1982.

      Lionel B. Gumnit, Philadelphia, for appellant in No. 765 and appellees in No. 911.
    Mary L. Schütz, for appellant in No. 911 and appellee in No. 765.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   SPAETH, Judge:

These are cross appeals from an order entered on Charles Tate’s preliminary objections in the nature of a motion to strike Salvatore DelCiotto’s answer to Tate’s complaint in trespass against DelCiotto. Both appeals will be quashed.

In his complaint Tate alleged that he had been injured on September 25, 1978, while repairing the roof of the building at 3617 Haverford Avenue in Philadelphia, and that his injuries were in various ways the result of the negligence of Salvatore DelCiotto, who, he alleged, “owned, maintained and exclusively controlled” the building. The complaint was filed on August 1, 1980, and served on DelCiotto on August 13. An appearance was entered on behalf of DelCiotto the following day but the complaint was not answered until November 21. By then, the statute of limitations had run.

In his answer DelCiotto admitted that he was the tenant of 3617 Haverford Avenue but denied that he owned, maintained or exclusively controlled the premises. The answer included new matter, and on December 10,1980, Tate filed a reply to the new matter.

On January 28, 1981, Tate filed preliminary objections in nature of a motion to strike DelCiotto’s answer. The essence of the preliminary objections is the claim that Tate was prejudiced by the late filing of DelCiotto’s answer. In Tate’s view, had the answer been timely filed, he would have learned before the statute of limitations ran that DelCiotto did not own 3617 Haverford Avenue, and he would have had time to commence an action against the person who did own 3617 Haverford Avenue. In response DelCiotto alleged that the delay in filing the answer had been with permission, that any confusion concerning the ownership of 3617 was the result of Tate’s carelessness in searching the public record, and that in any event, by first filing a reply to the new matter in the answer, Tate had waived the right to file preliminary objections to the answer.

In addition to the pleadings already described, Tate served interrogatories and requests for admission on DelCiotto and also took DelCiotto’s deposition. From these proceedings we see the following: The record owner of 3617 Haverford Avenue is Tony DelCiotto, the father of Salvatore DelCiotto. The deed that Tate had believed was the deed for 3617 Haverford Avenue was actually the deed for 3625 Haverford Avenue. However, the deed nowhere states the street address by which the property is known. It is probable that Tate thought that the address was 3617 instead of 3625 because Salvatore DelCiotto is grantee and the deed gives his address as 3617 Haverford Avenue.

In response to this situation, which we think it fair to characterize as a procedural mess, the lower court dismissed Tate’s preliminary objections, but granted him leave to amend the caption and allegations of his complaint by deleting the name of Salvatore DelCiotto and substituting the name of Tony DelCiotto as defendant. Tate has appealed from the first part of the order, DelCiotto from the second.

Neither party has questioned the appealability of the lower court’s order. This is, however, a question we must always ask, sua sponte if necessary. Aloi v. Aloi, 290 Pa.Superior Ct. 125, 434 A.2d 161 (1981).

An order dismissing preliminary objections is not a final appealable order. Marshall v. Powers, 477 Pa. 306, 383 A.2d 946 (1978); Napet, Inc. v. John Benkart & Sons Co., 288 Pa.Superior Ct. 187, 431 A.2d 351 (1981). Since that is what Tate has appealed from, we must quash his appeal, at No. 911 Philadelphia 1981.

Whether we must also quash DelCiotto’s appeal requires more discussion. DelCiotto argues on his appeal that the lower court should not have permitted Tate to amend the complaint so as to delete him as defendant and substitute his father. In his view, this is not a case where the plaintiff sued the right party but under the wrong name, in which case amendment may be permitted even after the statute of limitations has run, but rather a case where the wrong party was sued and the attempt is being made to bring in a new party after it is too late.

As a general rule, orders granting leave to amend pleadings are interlocutory and therefore not immediately appealable. We have found no case explicitly considering the appealability by a defendant of an order granting leave to make the sort of amendment involved here—deleting the defendant’s name from the complaint and substituting another’s. However, in DeRugeriis v. Brener, 237 Pa. Superior Ct. 177, 348 A.2d 139 (1975), we reviewed the merits of just such an order on an appeal from an order granting judgment on the pleadings after the complaint had been amended. Nothing we said suggests that an earlier appeal could or should have been taken by the original defendant from the order permitting amendment of the complaint.

There is an exception to the rule that orders granting leave to amend a pleading are interlocutory. If the scope of the leave to amend is so limited that as a practical matter the pleader is put out of court, an appeal will lie. Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa. Superior Ct. 377, 368 A.2d 770 (1976). This case is not within the exception. Here, the preliminary objections were the plaintiff’s, not the defendant’s, and they were dismissed, not sustained. At this point, both Tate as plaintiff and Salvatore DelCiotto as defendant are still in court. If Tate does amend his complaint as the lower court has given him leave to, Salvatore DelCiotto will then be out of the court, and Tony DelCiotto will be in court. But it is hard to see how a defendant who has not made a counter-claim can be aggrieved by being out of court. Tony DelCiotto is not yet in court, and if Tate amends the complaint to bring him in, he will not be precluded from challenging the propriety of the action against him. Because Salvatore DelCiotto is not now out of court, and because it does not appear that he would be aggrieved even if he were, he is not in position to appeal from the part of the lower court’s order granting Tate leave to amend, see Pa.R.A.P. 501, and we must also quash his appeal, at No. 765 Philadelphia 1981.

So Ordered.

      . Judgment by default was entered on October 16, 1980, against Anthony MacFarland for want of an answer or entry of appearance, and he is not a party to these appeals.


text:
    449 A.2d 641
    COMMONWEALTH of Pennsylvania v. Brian GILES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 7, 1982.
    Filed Aug. 13, 1982.
    Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

Appellant argues that we should vacate his sentence and remand for re-sentencing because the lower court omitted to place on the record, at the time of sentencing, its reasons for the sentence. We agree.

Appellant was arrested on May 9, 1980, and charged with simple assault, recklessly endangering another person, possession of an instrument of crime, violation of the Drug, Device and Cosmetic Act, and criminal conspiracy. He pleaded guilty to recklessly endangering another person and violation of the Drug, Device and Cosmetic Act, and the Commonwealth moved to have the remaining charges nol prossed. On April 10,1981, the lower court sentenced appellant to lV/z to 23 months imprisonment on the charge of recklessly endangering another person and to a consecutive period of 5 years of probation on the drug offense. Appellant petitioned the court for modification of sentence, alleging that the sentence was unduly harsh and that the court had failed to explain the sentence. The court denied the petition, stating that the reasons for the sentence were contained in the presentence investigation report. This appeal followed.

The Sentencing Code provides:

In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed .... Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.
42 Pa.C.S.A. Sec. 9721.

And see Pa.R.Crim.P. 1405. In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Supreme Court held that when a trial court fails to state of record its reasons for a sentence, the sentence should be vacated and the case remanded for resentencing. Id., 474 Pa. 122, 377 A.2d at 143. Accordingly, since Riggins we have on many occasions remanded for re-sentencing. Commonwealth v. Young, 299 Pa.Super. 488, 445 A.2d 1235 (1982); Commonwealth v. Bryner, 285 Pa.Superior Ct. 305, 427 A.2d 236 (1981); Commonwealth v. O’Brien, 282 Pa.Superior Ct. 193, 422 A.2d 894 (1980); Commonwealth v. Young, 272 Pa.Superior Ct. 82, 414 A.2d 679 (1979); Commonwealth v. Wicks, 265 Pa.Superior Ct. 305, 401 A.2d 1223 (1979). We must likewise remand here.

The Commonwealth concedes the lower court’s failure to explain the sentence but contends that a remand for resentencing is unnecessary because the sentencing judge later provided reasons for the sentence in the opinion that he filed pursuant to Pa.R.A.P. 1925(a). We have considered this argument elsewhere and have found it without merit; it ignores the reasons, which are explained in Riggins, for the requirement that a judge explain the basis of a sentence at the time of sentencing. Commonwealth v. Cappiello, 284 Pa.Superior Ct. 476, 426 A.2d 146 (1981); Commonwealth v. Young, 272 Pa.Superior Ct. 82, 414 A.2d 679 (1979).

The judgment of sentence is reversed and the case is remanded for re-sentencing.

      . 18 Pa.C.S.A. Sec. 2701.

      . 18 Pa.C.S.A. Sec. 2705.

      . 18 Pa.C.S.A. Sec. 907.

      . 35 P.S. Sec. 780, 101 et seq.

      . 18 Pa.C.S.A. Sec. 903.