author: TAMILIA, Judge:

text:
    587 A.2d 326
    COMMONWEALTH of Pennsylvania v. Terry TYLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1991.
    Filed Feb. 26, 1991.

      David H. Acker, New Castle, for appellant.
    Thomas W. Mintett, Asst. Dist. Atty., Ellwood City, for Com., appellee.
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   TAMILIA, Judge:

Terry Tyler appeals from a judgment of sentence of one to two years incarceration entered after his having been found guilty, by a jury, of possession of a controlled substance and delivery of a controlled substance. Appellant argues, essentially two issues: 1) his preliminary hearing was constitutionally inadequate and 2) the court erred in limiting the scope of cross-examination of the Commonwealth informant. For the reasons that follow, we find these claims to be devoid of merit and, accordingly, affirm.

The appellant was arrested after having sold crack cocaine on September 27, 1988 to Edward Mazur, a confidential police informant who was cooperating with Trooper William Chiappini of the Pennsylvania State Police. At the preliminary hearing, the Commonwealth was permitted, over defense objections, to enter through the trooper the statement of Mazur as to the delivery. When the defense attempted to call Mazur to testify, the Commonwealth’s objection to Mazur’s testimony was sustained when the defense was unable to satisfy the Commonwealth’s request for an offer of proof. The use of the officer’s hearsay testimony at the preliminary hearing and the magistrate’s refusal to allow the informant’s testimony gave rise to an omnibus pretrial motion which included, inter alia, a motion for the issuance of a writ of habeas corpus and a motion to quash informations, both of which related to the sufficiency of the appellant’s preliminary hearing. The motions were denied and the case proceeded to trial during which Mazur testified but the appellant was not permitted to cross-examine him on certain collateral matters. The appellant was found guilty, post-trial motions were denied, and on June 11, 1990, he was sentenced to pay the costs of prosecution and to be incarcerated for a period of one to two years. This appeal followed.

Appellant argues his preliminary hearing was constitutionally inadequate in that the Commonwealth’s prima facie case was established at the preliminary hearing by allowing Officer Chiappini to testify as to what Mazur had told him. Appellant also avers the magistrate’s ruling disallowing Mazur’s testimony at the hearing denied appellant his constitutional right to confront his accuser.

The admissibility of hearsay testimony at a preliminary hearing has most recently been upheld in Commonwealth v. Troop, 391 Pa.Super. 613, 571 A.2d 1084 (1990). Since the Commonwealth met its burden of proving appellant guilty beyond a reasonable doubt at trial, even if the Commonwealth had failed to establish a prima facie case at the preliminary hearing, it is immaterial. Id., quoting Commonwealth v. McCullough, 501 Pa. 423, 461 A.2d 1229 (1983). Appellant also argues Mazur’s presence at the preliminary hearing was a bar to the hearsay testimony of Officer Chiappini. We disagree.

The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Commonwealth v. Wodjak, 502 Pa. 359, 466 A.2d 991 (1983). Its purpose is not to prove defendant’s guilt. Once appellant has gone to trial and been found guilty of the crime, any defect in the preliminary hearing is rendered immaterial Recently, in Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990), in a plurality decision, Justice Larsen found that hearsay evidence alone may not be the basis for establishing a prima facie case in a preliminary hearing. That case is inapposite here for three reasons. First, there was more than hearsay evidence to establish the prima facie case in the present situation. Second, a trial followed in the present case, during which guilt was established beyond a reasonable doubt, whereas in Buchanan, a direct appeal resulted from the trial court’s denial of a petition for habeas corpus before trial. Third, appellant has failed procedurally to preserve his claim in proceeding to trial instead of taking a direct appeal from the denial of his petition for writ of habeas corpus, as was done in Buchanan. See Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). While we have considered this matter on the merits, appellant is without a remedy. For any of the above reasons, appellant’s claim is unsupportable.

As discussed in Troop, supra, there is no need for an affirmative showing of witness unavailability or unreliability in order to allow hearsay testimony at a preliminary hearing. Id., 391 Pa.Superior Ct. at 622, 571 A.2d at 1089. See also Commonwealth v. Branch, 292 Pa.Super. 425, 437 A.2d 748 (1981); Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). Chiappini’s testimony was properly admitted. Also, presentation of a witness is not required purely to establish his credibility as tested by cross-examination, as credibility is not an issue at a preliminary hearing.

Appellant’s allegation he was denied his right to confrontation as assured by both the state and federal constitutions is equally without merit. The United States Supreme Court, in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), observed that the right to confrontation is a trial right. The appellant’s right to present witnesses at a preliminary hearing is governed in part by Pa.R.Crim.P. 141(c)(3) set forth below:

RULE 141. PRELIMINARY HEARING

(c) The defendant shall be present at any preliminary hearing except as provided in these rules, and may, if he desires:
(3) call witnesses on his own behalf other than witnesses to his good reputation only, offer evidence on his own behalf and testify[.]

In accord with Rule 141, the appellant called informant Mazur to testify on his behalf. The appellant was unable, however, to satisfy the Commonwealth’s procedurally valid request for an offer of proof. Parenthetically, we note that although Mazur was not permitted to testify at the appellant’s preliminary hearing, he did appear and testify at the appellant’s trial and was, at that time, subjected to cross-examination. The record reflects appellant had not spoken with Mazur nor taken his deposition prior to the preliminary hearing. Appellant was not aware of what the informant’s testimony would be, but rather was attempting to depose Mazur via preliminary hearing testimony. As noted in the comment to Rule 141:

The 1975 modification to paragraph (c)(3) is intended to make clear that the defendant can call witnesses at a preliminary hearing only to negate the existence of a prima facie case, and not merely for the purpose of discovering the Commonwealth’s case. The modification changes the language of the Rule interpreted by the Court in Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). This amendment was made to preserve the limited function of a preliminary hearing.

We find the appellant was afforded a constitutionally sound preliminary hearing wherein he was afforded his constitutional rights and the rules of evidence and procedure were properly applied. Moreover, as discussed supra, in light of the fact the appellant’s guilt was established beyond a reasonable doubt at trial, even assuming, arguendo, the preliminary hearing was flawed, a new trial would not be the appropriate remedy. Commonwealth v. Murray, 348 Pa.Super. 439, 502 A.2d 624 (1985). “Logically, a new preliminary hearing is foolish once the evidentiary trial is completed without reversible error.” Id., 348 Pa.Superior Ct. at 452, 502 A.2d at 630.

Secondly, appellant contends the court erred at the time of trial by not allowing cross-examination of the informant relating to 1) prior inconsistent statements made by him under oath; 2) the circumstances surrounding his being hired as an informant; 3) his on-going drug trafficking while working as an informant; 4) false accusations made by him against another individual; 5) his motive for becoming an informant; and 6) his status as a fugitive from justice during the within investigation. We agree with the trial court, after a thorough examination of the record and relevant law, that appellant was not improperly limited during cross-examination. The scope and manner of cross-examination are within the sound discretion of the trial judge whose decisions will not be overturned absent an abuse of discretion. Commonwealth v. Laskaris, 385 Pa. Super. 339, 561 A.2d 16 (1989), alloc. denied, 525 Pa. 617, 577 A.2d 889 (1990). Commenting briefly on each of appellant’s claims, we find there to have been no abuse of discretion by the trial court.

The alleged prior inconsistent statement made by Mazur concerning how he got money to satisfy his drug habit was collateral to the issue at trial. The court has an obligation to keep the testimony focused on the issues in the trial and to not allow the entry of collateral matters. To the extent appellant argues the alleged prior inconsistent statement is indicative of Mazur’s faulty memory, questions concerning Mazur’s allegedly impaired memory were asked and answered during cross-examination (T.T., 10/19/89, pp. 28-30).

Appellant’s attempt to attack the informant’s character by eliciting testimony on cross-examination regarding how Mazur came to be retained as an informant, i.e. did he lie about his criminal history, was properly disallowed. Specific acts of misconduct may not be used for impeachment purposes. Commonwealth v. Hansell, 185 Pa.Super. 443, 137 A.2d 816 (1958). Also, evidence of the informant’s prior criminal history was barred by the court as a consequence of the Commonwealth’s motion in limine.

Testimony concerning Mazur’s alleged personal drug trafficking while acting as an informant was also properly disallowed. Appellant’s allegations were speculative and unsupported by fact.

Appellant’s argument he was wrongly prevented from asking Mazur questions concerning what was determined by the trial court to be an unrelated misidentification is likewise in vain. Mazur’s supposed misidentification of another suspect in the investigation had been resolved in the Commonwealth’s motion in limine by affidavits to the contrary. We find appellant's questions concerning Mazur’s possible motive for cooperating with the police to have their basis in speculation and to not be a proper cross-examination issue.

The court disallowed any testimony relative to the charges from which Mazur’s fugitive status emanated. Such charges, the court found, were unrelated to the matter at bar and, moreover, were dismissed prior to the commencement of trial. Any inference to an alleged deal between the informant and the Commonwealth was conjecture on the appellant’s part and was not a proper subject for cross-examination.

Based on the foregoing discussion, we find the appellant was afforded all rights provided by the Pennsylvania and United States Constitutions as well as the Pennsylvania rules of evidence and criminal procedure.

Judgment of sentence affirmed.

      . 35 Pa.S. § 780-113(a)(16).

      . Id., § 780-113(a)(30).


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    587 A.2d 330
    COMMONWEALTH of Pennsylvania, Appellee, v. Richard CANNING, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 24, 1990.
    Filed Feb. 27, 1991.

      David S. Rudenstein, Philadelphia, for appellant.
    Donna G. Zucker, 'Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before POPOVICH, FORD ELLIOTT and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

Appellant Richard Canning was convicted in Philadelphia Municipal Court of possession of a controlled substance. He was sentenced to thirty days in the county jail. No direct appeal was filed. Appellant then filed a petition under the Post Conviction Hearing Act, alleging denial of the right to appeal. Appellant was granted permission to appeal nunc pro tunc. This appeal, raising only the issue of whether the Court of Common Pleas erred in reversing the Municipal Court’s suppression order, followed. Finding no error, we affirm.

On July 5, 1985, Philadelphia Police Officer Robert McCarthy responded to a radio call to investigate complaints that a stranger was pacing back and forth on a neighbor’s porch. When Officer McCarthy arrived, he observed appellant pacing back and forth on the front porch of 4420 Howell Street. Appellant was wearing no shirt, shoes, or socks. When Officer McCarthy asked him what he was doing there, appellant replied that he was looking for his car. The residents of the home advised Officer McCarthy that they did not know appellant and had not realized he was on their porch. Because appellant appeared intoxicated and confused and had an odor of alcohol on his breath, Officer McCarthy decided to transport appellant to the police station for public intoxication. Before placing appellant in the police wagon, the officer searched appellant and discovered two packets, one containing methamphetamine and the other containing marijuana, in appellant’s pants pocket. Appellant was then charged with possession of controlled substances.

Appellant filed a motion to suppress the drugs which was granted by the Municipal Court. The Commonwealth appealed that order to the Court of Common Pleas and it was reversed. Appellant was then tried and convicted in Municipal Court. On this appeal, appellant contends that the Court of Common Pleas erred in reversing the suppression order.

Appellant first argues that the search was outside the permissible scope of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court articulated a police officer’s “narrowly drawn” authority to conduct a reasonable search for weapons for the officer’s protection. Id. at 27, 88 S.Ct. at 1883. The officer may pat down or frisk a suspect for weapons only if he reasonably believes that criminal activity is afoot, and that the suspect may be armed and dangerous. Id. The officer must be able to articulate specific facts to justify his belief that the suspect may be armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Moreover, the scope of a Terry search is limited. Because the “sole justification of the search ... is the protection of the police officer and others nearby, ... it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, supra, 392 U.S. at 29, 88 S.Ct. at 1884. In the instant case, the officer exceeded the scope of a Terry search. In order to reach into a suspect’s pockets during a Terry search, the officer would have to feel something that appears to be a weapon. “Nothing in Terry can be understood to allow ... any search whatever for anything but weapons.” Ybarra v. Illinois, supra, 444 U.S. at 93-94, 100 S.Ct. at 343. Herein, Officer McCarthy, did not articulate any specific facts to justify a belief that appellant might be armed and dangerous nor did he confine his search to items that may have reasonably appeared to be weapons. As noted by the Municipal Court judge, the items retrieved from appellant’s pocket, two small plastic bags, one containing a white powder and one containing a green weed, do “not feel like a gun, knife, or a blackjack or anything else.” N.T., December 12, 1985, p. 12. Thus, the search cannot be justified under Terry.

The search can be justified, however, as a search incident to an arrest. Commonwealth v. Plusquellic, 303 Pa.Super. 1, 449 A.2d 47 (1982) (seizure proper if incident to an arrest). At the time of the incident, the Rules of Criminal Procedure provided that in non-traffic summary cases, a defendant could be arrested without a warrant when such arrest is necessary in the judgment of the police officer, the officer is in uniform or displays a badge or other sign of authority and such arrest is authorized by law. Pa.R.Crim.P. 51 A(3)(c). Under the Crimes Code, a person is guilty of a summary offense if he appears in a public place under the influence of alcohol to the degree that he may endanger himself or others or annoy persons in his vicinity. 18 Pa.C.S. § 5505. See, Commonwealth v. Shillingford, 231 Pa.Super. 407, 411 n. 6, 332 A.2d 824, 826 n. 6 (1975) (custodial arrest permissible for public drunkenness). To determine the validity of the search under this standard, we must only determine whether the officer had probable cause for the arrest. Probable cause is found if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution to believe the suspect has committed a crime. Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987). Herein the officer had responded to a complaint by neighbors, who described a partially dressed man pacing back and forth on a porch where he did not belong. Appellant told the officer that he was looking for his car. The officer noticed an odor of alcohol on his breath and testified that appellant appeared both confused and intoxicated. These facts are clearly sufficient to justify a person of reasonable caution to believe that appellant had violated 18 Pa.C.S. § 5505.

The Municipal Court judge apparently relied, at least partly, on the fact that appellant was never charged with public drunkenness in order to find that probable cause was lacking. However, that is not a controlling factor. Probable cause means only the probability and not a prima facie showing of criminal activity. Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970). It is, of course, less than evidence which will justify a conviction. Id. Once probable cause is established, it does not dissipate simply because the suspect is not charged with the particular crime which led to the finding of probable cause. There are many reasons why the officer may not have filed the formal charge: upon reflection, he may have determined that there was insufficient evidence to warrant a conviction; he may have determined that society’s interests were better served by exercising mercy; he may, as in the instant case, have filed more serious charges and simply dispensed with the summary offense. None of these scenarios affects the finding of probable cause, however, once it has been established because probable cause is based on the facts and circumstances known at the moment of the arrest, Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974), and not on what may or may not occur after the arrest. Id. (subsequent events irrelevant to determination of probable cause); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973) (evidence discovered after arrest may not be considered in determining probable cause). Therefore, because there was probable cause to arrest, the officer was justified in searching appellant incident to that arrest and the evidence was properly admissible. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Formerly 42 Pa.C.S. § 9541 et seq., this Act was replaced by the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., effective April 13, 1988. Appellant’s petition was filed prior to the effective date of the PCRA.

      . Rescinded and replaced on July 12, 1985, effective July 1, 1986.


author: PER CURIAM:

text:
    587 A.2d 333
    Tim HUBER, Appellant, v. ERIE INSURANCE EXCHANGE, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1990.
    Filed Feb. 20, 1991.

      John R. Ryan, Clearfield, for appellant.
    Beth E. Ammerman, Clearfield, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   OPINION

PER CURIAM:

This is an appeal from an order granting appellee Erie Insurance Exchange’s motion for judgment on the pleadings. Finding no error, we affirm.

Appellant, Tim Huber, submitted a claim to his insurer, Erie Insurance Exchange, seeking first party medical benefits under his automobile insurance policy. Huber’s injuries occurred when he was loading materials into his vehicle. Erie denied the claim, relying on a clause in the policy which excluded first party benefits when the person sustains injury while loading or unloading a motor vehicle, except while occupying the motor vehicle. Huber then filed a complaint seeking first party benefits, interest and attorney’s fees. After the pleadings closed, Erie filed a motion for judgment on the pleadings. The court granted this motion, holding the exclusionary clause valid and finding no causal connection between the injuries sustained and the use of the motor vehicle. This appeal followed.

Appellant first contends that the exclusionary clause in question is invalid under the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1701 et seq. The language of the exclusionary clause tracks the language which appeared in the No-fault Motor Vehicle Act, 40 P.S. § 1009.103, the predecessor of the MVFRL. Although the MVFRL still requires that compensable injuries arise “out of the maintenance or use of a motor vehicle,” 75 Pa.C.S. § 1711, 1712, the act does not define “maintenance or use” nor does it specifically exclude loading/unloading injuries as did the No-fault Act. From these circumstances, appellant argues that the Legislature intended that all loading/unloading injuries are to be included in first party coverage. We do not find these circumstances to point so clearly to the conclusion appellant desires.

The repeal of the No-fault Act and the subsequent enactment of the MVFRL were motivated in large part by a desire to stem the rapidly rising cost of automobile insurance. J. Ronca, L. Sloane, J. Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, 13 (1986). The expansion of first party benefits by court decisions was particularly decried by at least one legislator during the House Debate on MVFRL. See, Remarks of Representative Michael Mathew Dawida, House Debate, December 14, 1983, Legislative Journal 2244, quoted in Persik v. Nationwide Mut. Ins. Co., 382 Pa.Super. 29, 554 A.2d 930 (1989). From this we can conclude that the Legislature did not intend to expand first party coverage when it passed the MVFRL. “... [0]ne objective in the repeal of the No-fault Act and the enactment of the Financial Responsibility Law was reduction of the number of first party recoveries — ” Id., 382 Pa.Superior Ct. at 38, 554 A.2d at 935 (Cirillo, P.J., dissenting). Thus, we cannot conclude that the mere omission of the loading/unloading language which had been included in the No-fault Act evidences a legislative intent that first party coverage should be expanded to cover all loading/unloading injuries. Rather, we believe that we must return to the “maintenance or use” language to determine whether appellant’s injuries are compensable.

It is beyond cavil that first party benefits are not paid simply because an injury occurs in or around a motor vehicle. We must keep in mind that the MVFRL, like the No-fault Act before it, is not a general liability insurance intended to cover all injuries, no matter how remotely connected with the use or maintenance of a motor vehicle, but is intended to cover motor vehicle accidents. Camacho v. Nationwide Ins. Co., 314 Pa.Super. 21, 460 A.2d 353 (1983), aff'd 504 Pa. 351, 473 A.2d 1017 (1984). Automobile insurance is designed to compensate for vehicle-caused injuries. Smith v. United Services Automobile Association, 392 Pa.Super. 248, 572 A.2d 785 (1990). There must be some causal connection between the motor vehicle and the injury before the motor vehicle insurer is required to pay first party benefits. Roach v. Port Authority of Allegheny Co., 380 Pa.Super. 28, 550 A.2d 1346 (1988). In Roach, for example, the plaintiff was riding on a bus and was injured as the result of a fight between two other passengers. Since there was no causal link between the injury and the use of a motor vehicle, this court upheld the trial court’s dismissal of plaintiff’s complaint. Similarly, in Alvarino v. Allstate Ins. Co., 370 Pa.Super. 563, 537 A.2d 18 (1988), the lack of a causal connection precluded recovery where a child was bitten by a dog while riding in a motor vehicle. See also, Smith v. United Services Automobile Association, supra (where passenger on haywagon threw hay at plaintiff causing him to collide with a tree, first party benefits not available); McKelvey v. Prudential Property & Cas. Ins. Co., 392 Pa.Super. 216, 572 A.2d 769 (1990) (insured who injured his shoulder when he glanced off door frame while rushing to his children after house was struck by automobile not covered under MVFRL).

This court has, in past cases, looked to the No-fault Act for assistance in interpreting the MVFRL. Under the No-fault Act, the requisite causal connection in loading/unloading situations was set forth in the statute as occupying, entering into or alighting from the vehicle. 40 P.S. § 1009.103. Using that definition, this court determined that an insured who was standing behind his car unloading a boat from the car roof was not entitled to first party benefits when he fell and was injured. Dull v. Employers Mut. Cas. Co., 278 Pa.Super. 569, 420 A.2d 688 (1980). In Martin v. Recker, 380 Pa.Super. 527, 552 A.2d 668 (1988), the insured was standing at the rear of a tractor trailer with one foot on the doorjamb of the trailer and the other foot on the floor of the ramp leading to the trailer. Again, the court found that he was not occupying, entering into or alighting from the vehicle.

Appellant relies on Callahan v. Federal Kemper Ins. Co., 390 Pa.Super. 201, 568 A.2d 264 (1989), and Omodio v. Aetna Life and Cas., 384 Pa.Super. 544, 559 A.2d 570 (1989), as support for his argument that he was in fact occupying the vehicle at the time of his injury and therefore the requisite causal connection is shown. In these cases, this court held that a clause excluding all loading/unloading injuries, regardless of whether the injury arose out of the maintenance or use of a motor vehicle, was invalid under the MVFRL. Moreover, in both of those cases, the insured was in fact inside the vehicle at the time of the injury and was therefore occupying it.

Appellant also cites to Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), arguing that he meets the criteria for “occupying” a vehicle set forth therein. These criteria are:

(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

We must disagree. Assuming arguendo that appellant met the first three elements of this definition, he has clearly failed to meet the final element. Contrary to appellant’s argument, loading materials into his vehicle is not a transaction essential to the use of the vehicle, although it may certainly be a transaction convenient to the vehicle operator.

In view of the purpose of the MVFRL, i.e., compensating victims of automobile accidents, and the legislative intent of restricting, to some extent, first party coverage in order to keep insurance costs manageable, we must conclude that appellant has not shown a causal connection between his injuries and the vehicle. Accordingly, we affirm the trial court’s order.

Order affirmed.

      . The following analysis encompasses appellant’s second argument, that he was in fact "occupying” the vehicle at the time of his injury.

      . The issue in Utica was whether the decedent was occupying a vehicle for purposes of receiving coverage from his employer’s uninsured motorist carrier.


author: POPOVICH, Judge:

text:
    587 A.2d 335
    Charles E. BEECH, Appellant, v. RAGNAR BENSON, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1990.
    Filed March 5, 1991.
    Petition for Allowance of Appeal Granted June 7, 1991.

      Louis R. Salamon, Pittsburgh, for appellant.
    Roger C. Wiegand, Sewickley, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Allegheny County dismissing with prejudice the appellant’s complaint in equity on the grounds of laches. The trial court’s order was entered following consideration of the appellee’s motion for summary judgment. We affirm.

Both parties are aware of the events which led to the instant litigation. Rather than summarizing the history of the case here, we will echo the concise statement of facts offered by the trial court.

The plaintiff [appellant] wanted fill removed from his property and the defendant [appellee] needed fill for a construction project nearby[.] [T]he parties agreed that the defendant would take fill from plaintiffs real estate. This was done in 1981 and in 1983 the plaintiff sued on the ground that the defendant had not properly reshaped the land after digging and excavating. This was denied by Answer in 1983 and the deposition of Mr. Beech was taken. Then the defendant heard nothing more of the case for over five (5) years.

Trial court opinion, at 1. In January, 1989, five years after the appellee Ragnar Benson filed its Answer and New Matter, the appellant Beech filed his Reply and placed the case at issue. In January, 1990, Ragnar Benson filed its motion for summary judgment. Thereafter, the trial court dismissed Beech’s complaint with prejudice. This appeal followed.

Beech has preserved four issues for our consideration. He asks

(1) Whether a claim at law for money damages made in an action in equity can be dismissed upon application of the doctrine of laches?
(2) Whether summary judgment can be granted on a laches theory for a hiatus between the accrual of a causé of action and the date when the complaint was served if the hiatus was not inordinate, if a defendant does not prove prejudice during such hiatus or if genuine issues of material fact exist as to such prejudice?
(3) Whether summary judgment can be granted on a laches theory for inactivity in an action after that action is at issue if that inactivity is excusable, if a defendant does not prove prejudice during such period of inactivity or if genuine issues of material fact exist as to such prejudice?
(4) Whether the doctrine of laches should, as a matter of law, be applicable to inactivity in an action after the pleadings in that action are closed?

Appellant’s brief, at 3. Since Beech’s issues are all intertwined, we are able to dispose of them under one theory— the doctrine of laches. We find this Court’s holding in Nilon Brothers Enterprises v. Lucente, 315 Pa.Super. 343, 461 A.2d 1312 (1983) to be controlling.

Before we discuss the applicability of the laches doctrine to the instant situation, we note our standard and scope and review. In Vargo v. Hunt, 398 Pa.Super. 600, 581 A.2d 625 (1990), this Court stated:

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970, 971 (1989); see also Chiricos v. Forest Lake Council Boy Scouts of America, [391] Pa.Super. [491], 571 A.2d 474, 475 (1990). In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court’s ruling unless there has been an error of law or a manifest abuse of discretion. Overly v. Kass, supra.

Id. See also Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986) (“[t]o determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. [____] Summary Judgment is appropriate only in those cases which are clear and free from doubt.” (emphasis added)); Pa.R.Civ.P. 1035. See Laspino v. Rizzo, 40 Pa. Commw. 625, 630, 398 A.2d 1069, 1072 (1979) (Pa.R.Civ.P. 1501 makes applicable to actions in equity Pa.R.Civ.P. 1035). With these standards in mind, we will now address Beech’s contentions.

Beech first asserts that his complaint contained a prayer for money damages. Therefore, the doctrine of laches cannot apply. After review, we reject Beech’s claim, even though his statement of the law is technically correct.

Our research reveals that laches, a doctrine of stale demand, is purely an equitable principle and it may not be invoked as a defense in a court of law. Transbel Inv. Co. v. Scott, 26 A.2d 205, 344 Pa. 544 (1942). Actions in law are governed by the statute of limitations. Id. Although Beech seems to argue that he has set forth an action in law, we find that equitable principles were properly applied in the instant case.

Beech’s complaint is entitled “Complaint in Equity.” He requests relief in the nature of specific performance. He contends that he “has no adequate remedy at law and suffers immediate and irreparable harm and damage by virtue of the failure of Defendant to properly perform its duties under said License Agreement.” See Appellant’s Complaint, at para. 14. The complaint clearly rings in requests for equitable relief.

The paragraph of his complaint, upon which Beech relies for support, requests

C. In the alternative, requiring Defendant to immediately finance all costs and expenses which are necessary in order: (1) for all engineering/geologic and other studies to be completed to determine the appropriate procedures to abate all problems caused by the failure of Defendant to properly perform its duties under said License Agreement; (2) for all work to be undertaken and completed which will prevent further landslides, rock slides and erosion and sedimentation from occurring; (3) to cause the performance of all duties which Defendant was required to perform under said License Agreement. [Further, Beech requests] D. Awarding costs, expenses and counsel fees to Plaintiff. E. Granting to plaintiff damages, indemnification and other equitable relief deemed appropriate by the Court.

Appellant’s Complaint, at 7-8.

While we appreciate that the instant case involved a request for money damages, a prayer for alternative forms of relief will not defeat an equity action. See 14 Standard PA Practice 2d §§ 79.2 (“[Remedies at law and in equity may coexist and be concurrent____ [0]nce a party makes an election and files an action, that party cannot pursue that alternate remedy____”); 79:13 (“... it is a fundamental principle of equity jurisprudence that a court sitting in equity will not invoke its jurisdiction where there exists an adequate remedy at law____ It is not sufficient that a party to an equity action may have some remedy at law, the remedy at law must be an adequate one, and the mere existence of a legal remedy will not oust equitable jurisdiction.”); 79:21 (discusses claims for money damages); 79:39-79:50 (discusses laches) 80:6 (discusses complaints in equity, generally); 80:27 (discusses relief requested); James Bros. Lumber Co. v. Union Banking & Trust Co. of Dubois, Pa., 432 Pa. 129, 247 A.2d 587 (1968) (plaintiffs action for specific performance was dismissed for failure to prosecute the claim during a ten and one half year period, even though the case also involved a request for an accounting). In fact, “[i]t is not proper for a plaintiff to file his complaint both in equity and at law; where it is clear that the plaintiff wishes to pursue equitable remedies, the action at law will be stricken as surplusage.” 14 Standard PA Practice 2d § 80:6.

Here, not only does Beech request specific performance throughout his complaint, but additionally, he requests equitable remedies in his claim for money damages (see para. C.(3), supra.). Despite his assertions that he would suffer irreparable harm and that he has no adequate remedy at law (see Complaint, filed June 2, 1982 and served on Ragnar Benson December 2, 1983), there is no indication in the pleadings that Beech ever pursued any remedial steps to reshape his land. See allegations at para. C.(l), (2), supra.

This case clearly involved the principles of equity. While we are cognizant of the many cases that hold that actions in law may continue even if an equity action is dismissed, this case does not fall within the purview of those decisions. At no time was this lawsuit pursued as a breach of contract case. At no time was this action brought in a court of law. Rather, Beech attempts to hang his hat on the fact that he asked for money damages as a form of alternative relief at the time his complaint was filed. He contends, therefore, that he may advance a civil action now to recover that which he failed to win in equity. This Court will not permit semantics to allow the appellant to gain through the back door what he could not accomplish through the front. What the appellant seeks is specific performance. We will not disturb the trial court’s holding that “this is a case where laches of the plaintiff is so clear that the suit must be dismissed with prejudice upon this basis.” Trial court opinion, at 2.

We reject Beech’s second claim of error for the simple reason that his complaint was dismissed for the delay that transpired between the taking of his deposition in 1984, and the placing of the case at issue in 1989. It was not dismissed because Beech “sat on his rights” between the date of accrual of the cause of action and the date of service of the complaint. Contrary to Beech’s assertion, we find that the trial court was clear in its holding that the five year period of non-activity was the reason for the entry of judgment against Beech, not the two years that transpired between the date of accrual and the date of service of the complaint.

While Beech’s third argument has some appeal at first glance, it is nevertheless misleading. The pleadings closed in this case on January 23, 1989 when Beech filed its Reply to Ragnar Benson’s New Matter. (We note that Ragnar Benson’s Answer and New Matter was filed December 14, 1983). On January 23, 1989, the action was placed at issue. Thus, there was no inactivity between the closing of the pleadings and the time when the matter was finally ripe for consideration. The inactivity here, for our purposes, occurred between the time Beech was deposed (1984) and the time the final pleading was filed (1989).

Moreover, while Beech argues that Ragnar Benson was in no way prejudiced during the periods of inactivity, we must agree with the trial court that the record reflects substantial prejudice to Ragnar Benson’s rights. See also 14 Standard PA Practice 2d §§ 79:40, 79:42 and 79:44. While this Court is bound to view the evidence in the light most favorable to the non-moving party, we are inclined to defer to the trial court’s findings here. As the trial court observed,

[t]he defendant asserts that everyone of their employees who were associated with the incident have left their employ and are unavailable and that the file cannot be located. There is no physical evidence remaining because the area has been overgrown. In these circumstances, the procrastination of the plaintiff would unduly prejudice the right of the defendant to a fair trial.

Trial court opinion, at 1-2. There is ample support in the record for the trial court’s conclusion and we will not disturb its determinations. See Easton Theatres, Inc. v. Wells Fargo Land & Mortgage Co., Inc., 265 Pa.Super. 334, 343-44, 401 A.2d 1333, 1338 (1979).

Finally, Beech argues that the doctrine of laches does not apply to inactivity in an action after the pleadings in that action are closed. This Court addressed the exact issue in Nilón, supra, and clearly held, “[i]n terms of the time element, a lack of due diligence in prosecuting one’s claim—as well as a lack of due diligence in instituting it—can activate laches.” Id. 315 Pa.Super. at 346, 461 A.2d at 1314 (citations omitted). We find no merit in Beech’s final contention.

For the foregoing reasons, we affirm the trial court’s judgment.

Order affirmed.

      . The Nilón case is helpful inasmuch as it sets forth cogently the law on laches.
      Laches arises when a defendant's position or rights are so prejudiced by length of time and inexcusable delay, plus attendant facts and circumstances, that it would be an injustice to permit presently the assertion of a claim against him. [Citations omitted]. "Laches, unlike the statute of limitations, does not operate solely by the passage of time." [Citation omitted]. "The application of the equitable doctrine of laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice." [Citation omitted]. The rationale is that "acquiescence is presumed from delay.” [Citation omitted].

        Id. 315 Pa.Super. at 346, 461 A.2d at 1314.

      . Even in his motion for amendment of pre-trial order, which was not filed until February 1990, Beech stated, "The above-captioned action is an action in equity in which Plaintiff is seeking relief, inter alia, in the nature of an Order under the terms of which Defendant is directed to enter upon Plaintiffs land to take certain physical action to stabilize same.” See id. at para. 1 (emphasis added).

      . These cases concern the proposition that "[i]n dealing with legal rules, a court sitting in equity follows and is bound by rules of law, and does not use equitable considerations to deprive a party of his rights at law.” 14 Standard PA Practice 2d § 79:2. See Bauer v. P.A. Cutri Co. of Bradford, 434 Pa. 305, 310, 253 A.2d 252, 255 (1969) (once the appellee asked to have a covenant-not-to-compete declared null and void, the action was at equity, "and having granted the equitable relief prayed for, the chancellor was also free to resolve other questions raised in the litigation[;]” [however], "in dealing with legal rights, a court of equity follows and is bound by rules of law.”). See Easton Theatres, Inc. v. Wells Fargo Land & Mortgage Co., Inc., 265 Pa.Super. 334, 350-51, 401 A.2d 1333, 1342 (1979) (issue involved alleged breach of contract and whether chancellor should have awarded monetary damages in addition to specific performance; this Court discussed the general principle that "a court of equity follows and is bound by rules of law, and does not use equitable considerations to deprive a party of his rights at law.” (citations omitted)); see also Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 470-73, 424 A.2d 902, 905-06 (1981) (action for negligence; discusses court’s equitable powers once equity takes jurisdiction over a controversy). See Fountain Hill Underwear Mills v. Amalgamated Clothing Workers’ Union of America, 393 Pa. 385, 393, 143 A.2d 354, 359 (1958) (".. .the filing of a complaint in trespass for damages does not oust equity of its jurisdiction, or prove that plaintiffs have a complete and adequate remedy at law.”); see also id. at n. 8. See Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966) (equity action was properly dismissed for laches; action for money damages was to be pursued at law where breach of contract occurred).
      Again, we note that the gravaman of the instant complaint was alleged improper performance of land clearing and excavation activities on Beech’s real estate. See Appellant’s Complaint, at para. 11. Beech asserted.

        ... although Mr. Kreh, on behalf of Defendant, admitted that Defendant failed to perform many of the duties required of Defendant under said License Agreement and although Mr. Kreh, on behalf of Defendant, offered to pay Plaintiff the sum of $3,500.00 in order to avoid the necessity of Defendant having to return to Plaintiffs said real estate (an offer which could not then and cannot now be accepted) neither Mr. Kreh nor any other officer, agent, servant, employee or sub-contractor of Defendant has attempted to properly perform the obligations and duties of Defendant under said License Agreement despite numerous demands that such proper performance be undertaken.

        Id. At all times, Beech’s requested relief was in the nature of specific performance.

      . To clarify, Beech did not request monetary relief, at law, to compensate for the alleged breach of the license agreement. He asked for “damages” to effect specific performance.


author: MONTEMURO, Judge:

text:
    587 A.2d 340
    Carol FRANK, a/k/a Carol Frank Kinstlick, Appellee, v. Barry H. FRANK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1991.
    Filed March 7, 1991.

      Lynne Z. Gold-Bikin, Norristown, for appellant.
    Berle M. Schiller, Philadelphia, for appellee.

      Before WIEAND, MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, requiring appellant, Barry Frank, to make payments for educational expenses on behalf of the parties’ son pursuant to the provisions of a separation agreement.

The parties to this action were married in 1962. Appellee Carol Frank Kinstlick instituted divorce proceedings in September of 1981. A decree granting the divorce on grounds of indignities was entered in December of the same year, incorporating by express intent a comprehensive separation agreement. Under the terms of the agreement appellant was to bear the responsibility for the higher education expenses of the parties’ three children, Toby born 1966, Kenneth, born 1968, and Gary, born 1970.

In June of 1986, two years after the eldest child had matriculated, appellee’s family established the Rose Gross Scholarship Trust, of which the parties’ children were beneficiaries. By its terms the trust was compelled to pay a maximum of $6500 per year for the actual amount of tuition, “net of any scholarship aid received by any beneficiary.” (Trust Instrument, at 2.02) Appellant did not learn of the existence of the Trust until the summer of 1988. At that time he filed a Petition for Special Relief requesting court ordered reimbursement from appellee for expenditures made for. college costs on behalf of two of the parties’ children, reimbursement for attorney’s fees, and that the court find appellee in contempt of the agreement. Less than a week later, appellee filed a cross petition for contempt, asserting that appellant had breached his obligation under the agreement, having contributed nothing toward the college expenses of the parties’ third child, Gary, then entering his freshman year. After hearing, an order was entered requiring appellant to comply with the terms of the agreement with regard to Gary’s future undergraduate college expenses prior to any payment from the Trust, and to pay past and current educational expenses, for a total of $9,732, which amount included an increased spending allowance. This appeal followed.

Appellant has presented us with three issues on appeal which we will address seriatim.

Preliminarily, we note that although the agreement in question is by its own terms incorporated into the decree divorcing the parties, it does not merge, since there is no specific language indicating that merger is intended. See, Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988). Moreover, the language of the agreement itself, rather than that of the decree limits the trial court’s jurisdiction to an enforcement function. (Agreement, Para. 4) Nor is there now disagreement expressed by the parties on this point. The intent of those signatory to comprehensive agreements of this sort controls. See, Bell v. Bell, 390 Pa.Super. 526, 568 A.2d 1297 (1990); D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990). Here both the incorporation and the extent of judicial authority are specified, so that we are not constrained to regard the agreement as an order subject to unilateral modification by the court. Accordingly, the agreement is to be construed by application of accepted rules of contract law.

It is well settled that property settlement agreements between husband and wife will be enforced by the courts in accordance with the same rules of law which are used in determining the validity of contracts generally. Vankirk v. Vankirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984); DeWitt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121, (1984); Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981); Schmitz v. Schmitz, 305 Pa.Super. 328, 451 A.2d 555 (1982). To that end we must look to the terms of the contract when called upon to construe rights pursuant thereto. The contract must be construed only as written. If an agreement contains clear and unambiguous terms, a court may not modify the plain meaning of the word under the guise of interpretation. Mears, Inc. v. National Basic Sensors, Inc., 337 Pa.Super. 284, 486 A.2d 1335 (1984).

Trumpp v. Trumpp, 351 Pa.Super. 205, 209, 505 A.2d 601, 603 (1985).

In determining whether the trial court has applied these principles properly, we use as a gauge the abuse of discretion standard. This is so because the form of action employed here, a petition for Special Relief, is authorized by Pa.R.C.P. 1920.43 relating to divorce or annulment. A panel of this court has held that a grant of relief under this rule is within the sound discretion of the trial court and is an exercise of the court’s equitable powers. Jawork v. Jawork, 378 Pa.Super. 89, 548 A.2d 290 (1988). An appellate court will not reverse absent an abuse of that discretion. Id. See also, DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990).

Appellant claims the trial court to have erred in finding his obligation to pay for the children’s tuition unaffected by the terms of the Trust. It is contended first that this conclusion is manifestly unreasonable in light of the parties’ intent at the time the agreement was executed, an intent which is posited as an obligation dependent solely upon need. Appellant analogizes his situation to one in which a child chose not to attend college: were this to occur no tuition obligation would exist. Similarly, appellant continues, the existence of the Trust vitiates the need for tuition. To emphasize his insistence that need as a condition precedent represents the intent of the parties, appellant urges us to look beyond the mere words of the document.

Conversely, in deciding whether the Trust was meant to hold primacy, appellant would have us give its terms their “clear and unambiguous meaning,” (Appellant’s Brief at 13) that is, to assume, since the language of the Trust does not mention support, that it is net only of scholarship aid of the institutional variety.

All of appellant’s arguments in this regard are based upon the premise that the question before us is the primacy of payment as between the Trust and himself. However, this is a misconception. In fact, we need only decide whether the contract entered into by the parties is enforceable as written, not whether the Trust has any supercessive effect upon a preexisting agreement. The starting point of the analysis is, despite appellant’s pleas to the contrary, the language of the contract.

The specific language of the pertinent agreement section provides as follows:

HIGHER EDUCATION EXPENSES OF THE CHILDREN
Husband agrees to be solely responsible for the reasonable cost of undergraduate education for the children including but not limited to the following: tuition, room, board, books, supplies, fees, a reasonable spending allowance and transportation, provided however, that Husband’s obligation with respect to transportation shall be limited to three round-trips per year per child, the cost of which shall be actual cost or the cost of the least expensive round trip airflight to Pittsburgh, whichever is less. Husband’s obligation pursuant to this Paragraph is limited to the cost of schooling as if the child attended Penn State University, Temple University, or the University of Pittsburgh, at the time the parties’ children are enrolled in school. Any contribution by Husband to the children’s educational costs above and beyond costs comparable to the above listed Universities shall be made on a voluntary basis. If a child lives at home and commutes to school, Husband’s obligation shall be limited to tuition, books, fees and supplies. Husband can take advantage of interest-free or low interest loans (e.g. PHEAA) as long as he is responsible for and assumes the obligation of repaying the loan with applicable interest.

No qualifiers are present in this section or elsewhere in the contract making appellant’s obligation contingent upon need, or secondary to some other source of funding for educational expenses. The agreement contains express language designating its terms as a complete expression of the parties’ intent, and specifically states, “There are no representations or warranties other than those expressly set forth herein.” (Agreement, 36) Both parties had benefit of counsel (appellant himself is an attorney), and there is no claim that the agreement itself was the product of fraud, misrepresentation, coercion or duress. There is, in short, nothing to suggest otherwise than the most obvious interpretation. As this court has stated, albeit in another context:

Appellant is attempting to create an ambiguity by parol evidence where the agreement is not ambiguous on its face, an effort barred by the parol evidence rule. Dahath Electric Co. v. Suburban Electric Development Co., 332 Pa. 129, 132, 2 A.2d 765 (1938). In order for us to find an ambiguity in the agreement, we must find that the document is reasonably capable of two different interpretations. Foulke v. Miller, 381 Pa. 587, 595, 112 A.2d 124 (1955). We agreed with the implicit determination by the court below that no such ambiguity exists.

Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 252, 259, 404 A.2d 398, 401 (1979). See also, Rosenberg v. Rosenberg, 322 Pa.Super. 293, 469 A.2d 626 (1983). Compare, Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350 (1976) (parol evidence admitted to resolve ambiguity where the term “alimony” may have been intended to include child support).

As there is nothing problematical contained in the agreement concerning the extent of appellant’s obligation to pay his children’s education expenses, we need not address the construction of the Trust’s intention.

Appellant’s second assertion, consistent with his previous claim, and all of those that follow, assumes resolution of the first argument in his favor. He complains that given the lack of need for tuition in view of the Trust’s contribution, those payments he has made resulted in appellee’s unjust enrichment, which under equitable principles should be remedied. Despite appellant’s insistence to the contrary, the trial court’s characterization of this matter as a contract dispute rather than a weighing of the equities is correct. Again, contracts are evaluated by certain specific criteria. Absent fraud, duress, misrepresentation or some other element which signals invalidity, both parties are bound by the terms of their agreements, “irrespective of whether the agreements embodied reasonable or good bargains.” Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162, 165 (1990).

Further, everyone who enters a long-term agreement knows that circumstances can change during its term, so that what initially appeared desirable might prove to be an unfavorable bargain. Such are the risks that contracting parties routinely assume.

Id., 525 Pa. at 401, 581 A.2d at 167.

Appellant’s current contention, based on a citation to In re McClellan’s Estate, 365 Pa. 401, 75 A.2d 595 (1950) (antenuptial agreement invalidated based on fraudulent concealment of husband’s assets at the time of making) that appellee’s failure to inform him of the Trust’s existence constitutes a generic form of fraud, is unconvincing. Appellant failed to provide for the possibility that there might be some contributor to his children’s education other than himself. He has never claimed that any action on appellee’s part prevented him from doing so. Under these circumstances, appellee was under no obligation to notify him that she had received funds from the Trust. He will not now be heard to complain because he dislikes the bargain he made.

Next, appellant extrapolates on the above by asserting that the trial court erred in failing to find appellee in contempt of the agreement for failure to notify him of the the Trust’s expenditures. For the reasons already stated, we find this claim meritless.

Finally, appellant assigns error to the trial court’s refusal to order returned to him those sums expended on behalf of the children’s education. Specifically, appellant complains that he is owed $10,888, the amount in excess of tuition payments made by the Trust, and $1,615, the room and board fees expended by appellant for the parties’ elder son Kenneth for a semester during which he failed to attend school.

Insofar as the overage is concerned, appellant has no valid claim to its return. We find the trial court’s citation to Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986) alloc. dn. 514 Pa. 625, 522 A.2d 51, particularly instructive on this point. There, a panel of our court held that the appellant was not relieved of his contractual obligation to pay child support where the funds had been expended, but rather than being paid directly to appellee as the separation agreement required, were made to the children themselves, or to individuals or schools on their behalf. The analogy is clear. In this instance, as the Trust in nowise alters appellant’s obligation under the agreement, he is due no refund of money expended.

Insofar as the room and board for Kenneth are concerned, appellee avers in her answer to appellant’s petition that the amount due and owing to the university where Kenneth was enrolled exceeded the amount paid by appellant, whose recourse for return of this money is to the university itself. As appellant is by the terms of the agreement responsible for more than tuition, and as he admits, money advanced by him was used for the children’s expenses, despite appellee’s having “pocketed” it, he may expect no return of these funds either.

Order affirmed.

      . Although appellant asserts that he has seen only one of his children in the last ten years, and that one only once, there is no argument advanced that the estrangement excuses his performance under the contract per Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989) alloc. dn., 524 Pa. 598, 568 A.2d 1248.

      . As we are concerned here with an action specifically directed at enforcement, it was properly brought under the 1988 Divorce Code, see Jackson v. Culp, 400 Pa.Super. 519, 583 A.2d 1236 (1990); DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990).

      . Pa.R.C.P. 1920.43 SPECIAL RELIEF
      (a) At any time after the filing of the complaint, or petition setting forth facts entitling a party to relief, the court may, upon such terms and conditions as it deems just, including the filing of security,
      (1) issue preliminary or special injunctions necessary to prevent the removal, disposition alienation or encumbering of real or personal property in accordance with Rule 1531(a), (c), (d), and (e); or
      (2) order the seizure or attachment of real or personal property; or
      (3) grant other appropriate relief.

      . Interestingly, this possibility was provided for as concerns reduction of alimony payments to appellee upon each child’s entrance into college.

      . In this regard, appellant refers us to testimony of various witnesses elicited at the hearing on his Petition. No transcript of the hearing is contained in the official record; no docket entry indicates that it was ever filed. Its presence in the Reproduced Record is insufficient to satisfy the requirements of PA.R.App.P.1921, which provides that the record on appeal in all cases shall consist of the “original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court." For purposes of appellate review, what is not of record does not exist. See, Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986); General Accident Fire & Life Assurance Corp., Ltd. v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982); Dile v. Dile, 284 Pa.Super. 459, 426 A.2d 137 (1981).

      . As we have already noted in Footnote 4, appellant did provide for various contingencies affecting his obligation to pay alimony. Paragraph 20(d) of the agreement provides that the amount paid to appellee will be reduced by 25% as each child begins college, except where the child continues to live at home as a student. College is defined as "undergraduate school on a four-year consecutive basis,” and the agreement specifies that should a child not attend college or its equivalent as a full time student, alimony will nevertheless be reduced as if the child were attending. This section also provides for cessation of alimony altogether upon the occurrence of any one of several events.

      . Appellant’s averments are supported by references to the transcript which has been excluded from our review. See, Footnote 5, supra.


author: DEL SOLE, Judge:

text:
    587 A.2d 345
    John COUY, John L. Spiegel, Jack W. Plowman, Joseph F. Mulach, Pete A. Teodori, Walter F. Chebatoris, Angelo Noce, John Kosky and Edward Rawlings, v. NARDEI ENTERPRISES and John Nardei, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1991.
    Filed March 13, 1991.

      Sanford S. Finder, Washington, for appellant.
    Maurice A. Nernberg, Jr., Pittsburgh, for appellees.
    Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

In this case we are asked to determine if counsel fees should be awarded to Appellees, plaintiffs in the trial court, under the common fund doctrine, codified in subdivision 8 of 42 Pa.C.S. § 2503. We affirm the trial court and hold that Appellees are entitled to counsel fees from the common fund created as a result of common law arbitration.

The underlying dispute in this case concerns Appellees, who are limited partners, and Appellant, John Nardei, the managing partner of Nardei Enterprises. Appellees submitted a claim to common law arbitration charging that John Nardei had improperly used partnership funds. The arbitrators entered an award imposing a surcharge against Mr. Nardei in the amount of approximately $106,000.00. Shortly after the entry of the award, he paid this amount to the partnership, Nardei Enterprises.

Appellees filed a motion to confirm arbitration to the Court of Common Pleas, Allegheny County, and an ancillary motion requesting reimbursement of counsel fees. The trial court found that the Appellees paid fair and reasonable counsel fees of $31,035.26 to their attorney for legal services for the arbitration proceedings, and ordered Nardei Enterprises to pay Appellees that sum from the common fund created by the arbitration proceedings.

It is the American rule that parties to adversary litigation are required to pay their own counsel fees. The common fund doctrine, a common law exception to this rule, has been statutorily codified at subdivision (8) of § 2503. Jones v. Muir, 511 Pa. 535, 515 A.2d 855 (1986). In essence, the common fund doctrine applies when an attorney’s services:

protect a common fund for administration or distribution under the direction of the court, or where such fund has been raised for like purpose, it [the fund] is liable for costs and expenses, including counsel fees incurred. This is the case even though the protection given or the raising of a fund results from what may be properly termed adversary litigation. Hempstead v. Meadville Theological School, 286 Pa. 493, 134 A. 103 (1926).

In other words, when several people have a common interest in a fund, the assets of which may be created through adversary litigation, and one or more of these people, for the benefit of all, but at their own cost and expense, bring suit to administer or preserve that fund, the court will order plaintiff or plaintiffs to be reimbursed for costs and expenses, including counsel fees, from the property of the fund, or order those benefited to contribute proportionately toward that expense. Pennsylvania Association of State Mental Health Hospital Physicians v. State Employees’ Retirement Board, 87 Pa.Cmwlth. 108, 483 A.2d 1003 (1984).

Furthermore, 42 Pa.C.S. § 2503(8) authorizes the award of attorneys’ fees to “[a]ny participant who is awarded counsel fees out of a fund within the jurisdiction of the court pursuant to any general rule relating to an award of counsel fees from a fund within the jurisdiction of the court.” This authorization has been taken to mean that the common fund exception applies not only when the fund is before the court prior to litigation, but where the successful litigation of the underlying suit resulted in a substantial benefit to a “group of others in the same manner as plaintiff,” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392, 90 S.Ct. 616, 625, 24 L.Ed.2d 593 (1970), quoted in, Pennsylvania Assoc., supra., 87 Pa.Commonwealth 116, 483 A.2d at 1007.

Here the underlying suit resulted in a benefit to the partnership. Further, although there is a dispute as to the exact percentages involved, it is clear that the plaintiffs hold less than 50% of the partnership assets. Consequently, other limited partners, and the general partner, who is also a limited partner, benefitted from the litigation which preserved and augmented the assets of the partnership. Therefore, the common fund exception, which rests on the perception that persons who obtained the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense, applies. See, Estate of Wanamaker, 314 Pa.Super. 177, 460 A.2d 824, 825 (1983).

This circumstance distinguishes the instant case from City of Reading v. Feltman, 127 Pa.Cmwlth. 618, 562 A.2d 926 (1989), upon which Appellant relies. In Reading, there is no evidence in the opinion that others, apart from the plaintiffs, who were the dependants or widows of police officers who retired or died before a certain date, benefitted from this suit interpreting the provisions of the Police Pension Fund Ordinance. Therefore, the court held that there was no fund within the jurisdiction of the court, as required by statute, and therefore no attorneys’ fees were awarded.

Here, the fund was within the jurisdiction of the court because the court entered an order confirming the arbitration award and entered judgment in conformity with that order, as required by 42 Pa.C.S. § 7342(b). Therefore, Appellant’s argument that the fund is not within the jurisdiction of the court, because it was created as a result of common law arbitration procedures required by the partnership agreement, has no merit. It is even less persuasive because the partnership, the recipient of the fund created by the litigation and confirmed by the court, was a party to the underlying arbitration proceedings.

We therefore affirm the judgment entered on the order directing the payment of counsel fees from the common fund created by the arbitration proceedings.


author: BROSKY, Judge. JOHNSON, Judge,

text:
    587 A.2d 347
    COMMONWEALTH of Pennsylvania v. Heather HARNER, a/k/a Heather Williamson, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1990.
    Decided Feb. 25, 1991.

      Colin K. Lydon, Harrisburg, for appellant.
    Kathy G. Wingert, Deputy Dist. Atty., Harrisburg, for Com., appellee.
    Before CIRILLQ, President Judge, and JOHNSON and BROSKY, J.
   BROSKY, Judge.

Heather Harner appeals from the judgment of sentence of the trial court following her guilty pleas to two counts of interference with custody of children. Appellant was sentenced to a twelve-month period of probation and ordered to pay $14,351.48 in restitution to her former husband, John Harner. Her Motion for Modification of Restitution was denied, and she appealed to this court.

Appellant claims on appeal that the trial court erred when it ordered her to pay restitution since (1) “the subject matter of the restitution claim was inappropriate for supporting an order óf restitution”; and, (2) the trial court failed to determine whether appellant possessed the capability to pay restitution. Appellant’s Brief at 9. We vacate the judgment of sentence relating to restitution and remand to the trial court for a hearing and resentencing consistent with this opinion.

Appellant and John Harner obtained a divorce. In 1985, Mr. Harner was awarded custody of their two children. Mr. Harner and the children, aged eleven and nine, continued to reside in Dauphin County, Pennsylvania. Appellant relocated to Louisiana. Pursuant to the custody order she periodically travelled , to and briefly remained in Dauphin County in order to spend time with the children. During one such visit in June, 1989, she abducted the children and took them to Louisiana.

The sole transcript in the record provided on appeal is of appellant’s April 16, 1990 guilty plea-sentencing hearing (hereinafter referred to as “the hearing”). The hearing includes a guilty plea colloquy, comments by the prosecutor and defense counsel and the pronouncement of sentence.

Appellant stated at the hearing that, “The state of Louisiana took the kids in their protection because of the abuse issue.” N.T., 4/16/90, at 8. The record does not indicate the nature of the legal proceedings that ensued in Louisiana but the prosecutor stated at the hearing that, “There was a rather lengthy battle that Mr. Harner waged in the Louisiana Courts in an attempt to recover the children. Id. at 2-3. The prosecutor stated that Mr. Harner accumulated $6,800.00 in legal fees for work performed by a law firm. Id. at 9. The prosecutor also stated that Mr. Harner expended approximately $1,000.00 in legal fees in Pennsylvania and that he spent approximately $2,000.00 for “trip expenses[.]” (We assume that these trips were to Louisiana.) Id. The prosecutor also stated that Mr. Harner paid approximately $1,000.00, “to a private investigator who was looking for the children in Louisiana and $800 to another private investigator who was also employed.” Id. The forgoing was the entire testimony regarding Mr. Harner’s expenses that were precipitated by appellant’s crimes.

Although the prosecutor only enumerated $11,600.00 in expenses allegedly incurred by Mr. Harner, he requested and received a sentence. ordering appellant to pay $14,-351.48 in restitution. Appellant did not contest the legitimacy of the dollar amount of the Commonwealth’s request for restitution. Appellant asked the trial court, “Can I not just pay for the legal [fees accumulated by Mr. Harner?]” Id. at 9.

Appellant first claims that the trial court erred in ordering appellant to pay restitution since Mr. Harner’s expenses were not of the type that are recoverable pursuant to an order of restitution. Although not framed as such by appellant, her claim is that the imposition of restitution constituted an illegal sentence.

Our review of the relevant Pennsylvania statutes and caselaw indicates that this is an issue of first impression. Furthermore, our extensive research regarding criminal restitution in at least three other major jurisdictions failed to reveal any cases and statutes significantly related to appellant’s instant claim.

Sentencing is a matter within the sound discretion of the trial court and absent an abuse of discretion we will not disturb a sentence on appeal. Commonwealth v. Semuta, 386 Pa.Super. 254, 562 A.2d 894 (1989).

18 Pa.C.S. § 1106 states, in pertinent part,

(a) General rule.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
(c) Authority of sentencing court.—In determining whether to order restitution as part of the sentence or as a condition of probation ..., the court:
(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.
(h) Definitions.—____
“Injury to property.” Loss of real or personal property, including negotiable instruments, or decrease in its value, directly resulting from the crime.
“Personal injury.” Actual bodily harm[] ... directly resulting from the crime.
“Property.” Any real or personal property, including currency and negotiable instruments, of the victim.

42 Pa.C.S. § 9721(c) states, “[T]he court may order the defendant to compensate the victim of his [or her] criminal conduct for the damage or injury that he sustained.”

The purpose of restitution is to impress upon the defendant that her criminal conduct caused the victim’s loss or personal injury and that it is her responsibility to repair the loss or injury as far as possible. Commonwealth v. Anderson, 394 Pa.Super. 299, 575 A.2d 639 (1990); Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984). In other words, the primary purpose of restitution is the rehabilitation of the defendant. Commonwealth v. Torres, 396 Pa.Super. 573, 579 A.2d 398 (1990); Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989). An additional purpose of restitution is to provide the complainant with a measure of redress. Commonwealth v. Torres, supra; Commonwealth v. Melnyk, 378 Pa.Super. 42, 548 A.2d 266 (1988). “Restitution does not enable a victim to make a claim for damages in a criminal trial.” Commonwealth v. Cannon, supra, 387 Pa.Superior Ct. at 26, 563 A.2d at 925. Although restitution aids the victim, its primary purpose is still the rehabilitation of the defendant. Id.

Although current Pennsylvania caselaw does not contain a specific method of analysis for determining whether a victim’s property “has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime[,]” 18 Pa.C.S. § 1106(a), this court, in dicta, has offered some guidance in Common wealth v. Penrod, 396 Pa.Super. 221, 578 A.2d 486 (1990). The defendant in that case caused a serious automobile accident in which the victim’s automobile was demolished. Subsequent to the accident, an unknown third party stole audiotapes from the victim’s disabled automobile. Our court stated that, “Given this ‘but for’ causation and the proximateness in time from the accident to the theft, we would find no abuse of discretion in the trial court’s restitution order.” Id., 396 Pa.Superior Ct. at 229, n. 1, 578 A.2d at 490, n. 1. Although the restitution issue was found to be waived in Penrod, our court, in dicta, would have affirmed the restitution order directing the defendant to compensate the victim for the loss of the audiotapes.

“The settled law of this Commonwealth is that attorneys’ fees are recoverable from an adverse party to a cause only when provided for by statute, or when clearly agreed to by the parties.” Dept. of Transp. v. Manor Mines, Inc., 523 Pa. 112, 122, 565 A.2d 428, 433 (1989); Chatham Communications, Inc. v. General Press Corporation, 463 Pa. 292, 344 A.2d 837 (1975). In Commonwealth v. Angelo, 18 Pa.D. & C.3d 795 (1981), the Monroe County Court of Common Pleas, pursuant to Chatham Communications, supra, declined to award attorneys’ fees as part of the restitution portion of a sentence.

Pursuant to Dept. of Transp. v. Manor Mines, Inc., supra, we find that the trial court erred in ordering appellant to make restitution for the attorneys’ fees incurred by Mr. Harner. There is no statute that provided for the payment of attorneys’ fees in the instant situation, and Mr. Harner and appellant did not agree to reimbursement for said fees.

We also find that the trial court had authority to order appellant to make restitution for Mr. Harner’s “trip expenses” and private investigator fees. The value of Mr. Harner’s assets were substantially decreased as a direct result of appellant’s abduction of his children. He was compelled to expend sums of money in order to regain possession of his children. We believe that the “but for” causation analysis mentioned in dicta in Commonwealth v. Penrod, supra, is the proper analysis to be employed when a court is determining whether a victim suffered property loss as a direct result of a defendant’s crime. In the instant case, Mr. Harner’s assets (cash, or property that had to be sold in order to obtain cash) would not have been substantially decreased “but for” appellant’s actions in abducting the children and secreting them in Louisiana. Hence, the instant factual situation is one in which a sentencing court can properly impose restitution.

We now turn to appellant’s second issue. She avers that the trial court failed to determine whether she possessed the capability to pay restitution.

Since an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation or parole, it must be supported by the record. Among the things the sentencing court must consider on the record are: the extent of the injury suffered, see 18 Pa.C.S. § 1106(c)(1); the fact that the defendant’s action caused the injury and that he will be able to pay for it, and the type of payment—lump sum or installment—that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1).

Commonwealth v. Torres, supra, 396 Pa.Superior Ct. at 580, 579 A.2d at 400.

[Restitution is within the discretion of the sentencing court but must be supported by the record, and the court must determine the loss or damages resulting from the defendant’s conduct, the amount of compensation the defendant can afford to pay and how such amount shall be paid. An award for restitution should not be speculative or excessive. There is no requirement that the reasons for ordering restitution be set forth at sentencing. [Citations omitted].

Commonwealth v. McLaughlin, 393 Pa.Super. 277, 292, 574 A.2d 610, 617 (1990).

The trial court in the instant case failed to comply with the aforementioned relevant statutory and case law. First, there is no indication in the record that the trial court considered appellant’s ability to pay restitution. We must therefore remand to the trial court for a hearing to determine appellant’s ability to pay.

Secondly, the trial court did not adequately determine the amount of expenses incurred by Mr. Harner. It relied upon the prosecutor’s statement that Mr. Harner spent approximately $2,000.00 for “trip expenses.” N.T., 4/16/90, at 9. We are not privy to the location of these trips or the justification for the $2,000.00 figure. The trial court also relied upon the prosecutor’s statement that Mr. Harner paid approximately $1,000.00, “to a private investigator who was looking for the children in Louisiana and $800 to another private investigator who was also employed.” Id. The record does not indicate the location of or type of work performed by the latter private investigator.

Third, the trial court ordered restitution in an amount that was several thousand dollars higher than the list of expenditures enumerated by the prosecutor. The record does not indicate the trial court’s rationale for the higher amount. We therefore also remand for a determination of the nature and amount of expenditures incurred by Mr. Harner.

Once the trial court determines appellant’s ability to pay restitution and the nature and amount of expenditures incurred by Mr. Harner it may resentence appellant regarding restitution.

Judgment of sentence relating to restitution is vacated. Case remanded for hearing and resentencing consistent with this opinion. Jurisdiction relinquished.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting.

I agree with my colleagues that the trial court erred in ordering Heather Harner, (Mother), to make restitution for attorneys’ fees incurred by John Henry Harner, (Father). I also agree that the trial court failed to make an on-the-record determination of Mother’s ability to comply with the proposed order. This failure, alone, would require that we vacate that portion of the judgment of sentence relating to restitution.

Since I am unable to find any statutory authority for the imposition of an order of restitution to permit a parent to recover alleged expenses billed by private investigators or incurred while traveling, I must dissent.

Since the judgment of sentence brought together an imposition of twelve months’ probation and an order of restitution totalling $14,351.48, and since I would find that none of the restitution is allowable, I would reverse the order of restitution and remand for resentencing.

I firmly believe that the facts of this particular case cannot satisfy the general rule authorizing restitution. I am not surprised, therefore, by my colleagues’ inability to find any cases or statutes in this, or “in at least three other major jurisdictions” significantly related to Father’s claim in this case. Where the general rule is clearly inapplicable, I find it inappropriate to seize upon a causation analysis bottomed in “but for”-ness and only casually mentioned by way of footnote dicta in an earlier case.

When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Moreover, all provisions of a penal statute are to be strictly construed. 1 Pa.C.S. § 1928(b)(1).

The relevant statutory provision, 18 Pa.C.S. § 1106, provides as follows:

§ 1106. Restitution for injuries to person or property

(a) General rule.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
Oi) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Injury to property.” Loss of real or personal property, including negotiable instruments, or decrease in its value, directly resulting from the crime.
“Restitution.” The return of the property of the victim or payments in cash or the equivalent thereof pursuant to an order of the court.
“Victim.” Any person, except an offender, who suffered injuries to his person or property as a direct result of the crime.

Mother pleaded guilty to two counts of interference with custody of children, 18 Pa.C.S. § 2904. The charges stemmed from her having taken her two children, in June 1989, and having returned to her home in Louisiana in violation of an existing Dauphin County custody order. The restitution order here under review included amounts “expended by [Father] for private investigators, trying to locate his children, for legal fees, within Louisiana and Pennsylvania, and for expenses for trips to Louisiana.” Opinion, Honorable Warren G. Morgan, dated and filed June 7,1990.

Under the general rule set forth in Section 1106(a), supra, restitution is authorized only in convictions “wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime.” The majority does not seek to analyze Father’s loss, if any, in terms of describing the “property” claimed to be “stolen, converted or otherwise unlawfully obtained.” Rather, the majority asserts that the “value” of Father’s assets “were substantially decreased as a direct result of [Mother’s] abduction of his children.” The majority goes on to conclude, without analysis, that these vague “assets ... would not have been substantially decreased ‘but for’ [Mother’s] action in abducting the children and secreting them in Louisiana.”

The majority’s reliance on the dicta in Commonwealth v. Penrod, 396 Pa.Super. 221, 229 n. 1, 578 A.2d 486, 490 n. 1, (1990) is misplaced. Without reaching the soundness of that dicta, it is quite clear that Penrod involved a demolished car and audiotapes that, under the general rule in § 1106(a), were both tangible, specific “property” and were either “substantially decreased in value” or “stolen”. This, then, would permit an analysis as to whether the decrease in value was “as a direct result of the crime”, where the post-accident criminal conduct of an unknown third party resulted in the tapes being stolen, and whether Gerald N. Penrod was, in fact and in law, the “offender” with respect to the loss of the audiotapes. The Penrod panel utilized a footnote to slip in its dicta regarding the waived restitution issue, without any analysis on the point by the panel. It is impossible, therefore, to tell how that panel concluded that Penrod could be made to pay restitution for the acts of an unknown, third party offender.

In the case now before us, we do not even have any identifiable “property” for which restitution may be ordered. The crime here is interference with custody of children. There is not the slightest suggestion that anything other than the parties two children were, at any time, “stolen, converted or otherwise unlawfully obtained.” The majority is reduced to describing the imagined “property” as “cash, or property that had to be sold in order to obtain cash.” We know not which. Since there is no “property” involved, I reject the majority’s analysis that finds that a party’s general, nonspecific “assets” may have their value “substantially decreased as a direct result of the crime.”

Any time that money is paid out for services, the assets from which the payment was derived are decreased, regardless of the reason or the cause for the payment. Here, Father elected to use his own resources to secure personal investigative services and to travel to another state in the course of seeking to locate his children. All of these payments were discretionary as well as voluntary. None of them arose as a “direct result” of Mother’s criminal acts. Cf. Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982); Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986) (Dissenting Opinion, Johnson, J.) vacated 517 Pa. 83, 534 A.2d 1050 (1987), order reentering order affirming grant of restitution and remanding for resentencing, No. 3076 Philadelphia 1983, Pa.Super. October 18, 1988.

In Commonwealth v. Cooper, 319 Pa.Super. 351, 466 A.2d 195 (1983), we analyzed the case law in other jurisdictions and determined that “restitution is permissible only as to losses flowing from the conduct for which the defendant has been held criminally accountable.” 319 Pa.Super. at 356, 466 A.2d at 197 (citations omitted, emphasis added). This is based upon the very sound rationale that due process of law is denied when the losses for which restitution has been imposed did not arise from the very offense for which the defendant was convicted. This is reflected in the requirement of § 1106(a) that the loss directly result from the crime.

In the case before us, the trial court did not reach a conclusion that the losses awarded to Father had directly resulted from Mother’s having fled Pennsylvania with her two children. Rather, the court merely found that “all of the incurred costs stemmed from the charges.” Opinion, Morgan, J., June 7, 1990, page 1 (emphasis added). In a criminal proceeding, this simply is not enough. 1 Pa.C.S. § 1928(b)(1). Where, as here, no property is endangered and the amounts sought to be deemed “losses” represent nothing more than the aggregate of voluntary cash payments made from unrelated personal assets by a parent in pursuing enforcement of an existing custody order, restitution can not be imposed. Commonwealth v. Anderson, 394 Pa.Super. 299, 575 A.2d 639 (1990).

That portion of the judgment of sentence which purports to impose restitution should be reversed as beyond the scope of § 1106(a). Since the only remaining portion of the sentence involves a two year period of probation, it may well be that the sentencing court believed it was balancing several needs by ordering a significant restitution sum and foregoing incarceration. We cannot tell from this record. Where a case requires a correction of sentence, we may either remand for resentencing or amend the sentence directly. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). Since I believe that no restitution is authorized on this prosecution, I would vacate the sentence, remand the case to the trial court and rely on the good judgment of the sentencing court to amend the sentence upon remand. Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985).

For all of the above reasons, I can concur in only so much of my colleagues’ decision as would deny Father reimbursement for his attorneys’ fees. I must dissent from that portion of the majority opinion as would find authority in 18 Pa.C.S. § 1106 to award restitution for personally incurred private investigator fees and voluntarily incurred trip expenses. Such an award flies in the face of the statute governing restitution, 18 Pa.C.S. § 1106.

      . Appellant has remarried since the filing of the instant criminal charges against her and her present name is Heather Williamson.

      . 18 Pa.C.S. § 2904(a).

      . The record does not indicate the date of the divorce.

      . Appellant averred at her guilty plea that she believed that the children were being abused by Mr. Harner and that is why she abducted them.

      . Although appellant made two brief comments during the sentencing phase of the hearing there was no other testimony by any party.

      . The State in which these services were performed is not revealed to us.

      . We are unaware of what type of legal services were provided by any of the attorneys.

      . A claim that the sentence imposed is illegal is essentially a claim that the trial court did not possess jurisdiction to impose such a sentence. Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989).

      . "Actual bodily harm” within the meaning of 18 Pa.C.S. § 1106 includes actual emotional or mental disturbances, but it does not include pain and suffering. Commonwealth v. Cannon, supra.

      . Although appellant offered at sentencing to pay Mr. Harner’s attorneys’ fees, this was only after restitution had already been ordered. Therefore, there was no prior agreement between the parties regarding attorneys’ fees.

      . We will explain in issue number two why the trial court generally had authority to order restitution for these expenses but improperly issued such an order in the instant case.

      . Although appellant did not raise this claim at sentencing or in her Motion for Modification of Restitution the claim is not waived. We held in Commonwealth v. Balisteri, supra, that an order of restitution which was not supported by the record constituted an illegal sentence. "The illegality of a sentence of restitution is not a waivable issue____ An illegal sentence can be corrected at any time. It is not waived by a failure to file a petition to modify the sentence.” Commonwealth v. Reed, 374 Pa.Super. 510, 514-15, 543 A.2d 587, 589 (1988). Since appellant is challenging the legality of her sentence the issue is not waived and we will address it.

      . We are only focusing on the “trip expenses” and private investigator fees since we have already determined that the trial court erred in awarding attorneys' fees to Mr. Harner.

      . We are not disturbing appellant’s twelve-month sentence of probation.