source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    561 A.2d 783
    COMMONWEALTH of Pennsylvania, Appellant v. Clifton CAMERON.
    Superior Court of Pennsylvania.
    Argued April 19, 1989.
    Filed July 6, 1989.

      Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellant.
    Peter J. Scuderi, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and MELINSON and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal by the Commonwealth from an order entered by the Court of Common Pleas of Philadelphia County suppressing evidence obtained in the search of an abandoned house. The Commonwealth has certified that the order substantially handicaps its prosecution of the case. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

The appellant, Clifton Cameron, was arrested by Philadelphia police for possession of a controlled substance, and possession with intent to deliver. Police had made an arrest at the house in question on the day prior to Cameron’s arrest. Police Sergeant Michael Perrone went back to the house the following day. He observed people going in and out of the vestibule of the house within a short time period in a manner which was, in his experience, consonant with the sale of narcotics. He called for assistance, and went into the vestibule, the door to which was ajar. He then knocked on the inner door, which he knew led to a room boarded off from the rest of the house, and announced himself as a police officer. Cameron, who was in the room, asked him to wait. Perrone could see packets of white powder lying on a table through a hole in the door. He saw Cameron pick up the packets, and drop them behind the couch. Cameron opened the door; while one officer remained with Cameron, Perrone searched and found packets of cocaine under the floor boards.

Cameron moved to suppress the evidence, claiming that a search warrant should have been obtained. At the hearing on the motion to suppress, the Commonwealth put on testimony of only one witness, Sergeant Michael Perrone, who had conducted the search and made the arrest. Perrone testified that he had arrested another individual in the house the day before the search in question here, and so was familiar with the property. He described the house as an abandoned rowhouse on Ruby Street in West Philadelphia:

There are two doors to the left and there is a door to the right. The door to the left, the outer door leads to a vestibule area. Then there is another door. This door leads to a room. This room is approximately 12 feet by 15 feet, and the room is sealed from what was the kitchen area of this property.
There is still an old sink and old range and some cabinets were in the back area____ There is no running water, but debris, trash thrown all over the place.
This one room is sealed off entirely from any other part of the property. To get to the kitchen area, or what was the kitchen area, you have to go out. There is no rear door and the steps were dilapidated.
# * * sjc * *
The door to the right goes to what was probably a second floor. That apartment was littered with human waste and trash and other debris. The window at one time had glass in it, was plywooded over [on both the first and second floors].

Perrone stated that there were no bathroom facilities, or cooking appliances in the room, and that there was no running water or electricity. He testified that he knew no one lived in the house, and that Cameron gave his address as 535 North Roger Street. He also testified, however, that the room in which he arrested Cameron contained a couch, a table, and a television set, which was on both at the time of the arrest and on the previous day. Perrone stated that when he peered through the hole in the door, he observed an “aluminum type foil platter” on the table with food on it.

The suppression court granted the motion to suppress, holding that the presence of food, a couch, and a television set in the room indicated that the house had some of the attributes of a dwelling place, and therefore Cameron had a reasonable expectation of privacy there. The Commonwealth then appealed to this court, arguing firstly, that a person has no legitimate expectation of privacy in an abandoned and uninhabitable house, and secondly, in response to an argument made by Cameron, that the automatic standing rule does not create a constitutionally protected area when the factual situation involves an uninhabited and abandoned house used to operate an illegal narcotics operation.

In reviewing a suppression court’s order to suppress evidence, we, as the reviewing court, are bound by that court’s findings of fact, unless we determine that those findings of fact are not supported by the record. Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). We must also determine the legitimacy of the inferences and legal conclusions drawn from those findings of fact. Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). In reaching our determination, we must consider only the evidence of the defendant’s witnesses, and only so much of the evidence presented by the prosecution as remains uncontradicted by the record as a whole. Commonwealth v. Hamlin, 503 Pa. 210, 215-16, 469 A.2d 137, 139 (1983). When the evidence supports the factual findings of the suppression court, we may only reverse if there is an error of law. Reddix, 355 Pa.Super. at 518, 513 A.2d at 1042. In this case, the defendant/appellee, Clifton Cameron, put on no witnesses. Therefore, the Commonwealth’s evidence remains uncontradicted in the record. Because there is no question that the factual findings are supported by the record, we will address ourselves to the validity of the court’s inferences and legal conclusions.

The Commonwealth claims that under both the federal constitution and the constitution of this Commonwealth, an individual has no right of privacy in a vacant house. We will first analyze the question under the fourth amendment to the federal constitution. The fourth amendment protects “[t]he right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const, amend. IV. In analyzing this question, a court must determine first whether a search within the meaning of the fourth amendment has taken place by determining whether the person who claims protection has a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). The individual must exhibit a subjective expectation of privacy in the invaded place, and society must be prepared to recognize that expectation as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). It is only when this legitimate expectation of privacy exists that a search within the meaning of the fourth amendment has occurred. Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985). Accord Commonwealth v. Lemanski, 365 Pa. Super. 332, 345, 529 A.2d 1085, 1091 (1987).

In the instant case, it seems clear that under federal law, Cameron manifested a subjective expectation of privacy. However, it cannot be said that his expectation of privacy is one that society is prepared to accept as reasonable. The Supreme Court has intimated that the question of what is reasonable is inextricably intertwined with the question of whether an individual has an expectation of privacy rooted in a source outside the fourth amendment:

Legitimate expectations of privacy by law must have a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others ... and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment ... need not be based on a common-law interest in real or personal property, or on the invasion of such an interest____ But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned the use of property concepts in determining the presence or absence of the privacy interests protected----

Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12. See also Lemanski, 365 Pa.Super. at 346, 529 A.2d at 1091 (1987); Commonwealth v. Lowrey, 305 Pa.Super. 66, 71, 451 A.2d 245, 247 (1982).

Although the property interest involved need not amount to an ownership interest, there must be some legal or de facto right to control the area in question. Considering the record in the instant case, there is no evidence to indicate that Cameron had any legal or de facto right to control the house. The testimony of Sergeant Perrone indicated that the house was abandoned, and, although there was some evidence to show that Cameron was “squatting” there, the record contains no facts which would lead us to believe that he had any rights as against the owner, or as against any other person who attempted to enter the house. He therefore could not expect to exclude any other person who attempted to enter. We find that under federal law, Cameron had no reasonable expectation of privacy in an abandoned house.

This does not end the analysis, however. We must determine what Cameron’s rights are under Pennsylvania constitutional law. Article I, section 8 of the Pennsylvania Constitution also provides that an individual will be secure in his or her “persons, houses, papers and possessions from unreasonable searches and seizures.” Art. I, sec. 8. The courts of this Commonwealth have seen fit to extend constitutional rights under the Pennsylvania Constitution where the Supreme Court of the United States has been more restrictive. See, e.g., Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983) (disapproving the Supreme Court’s abrogation of the automatic standing rule, and holding that the concept of automatic standing is still viable in Pennsylvania); Commonwealth v. DeJohn, 486 Pa. 32, 49, 403 A.2d 1283, 1289 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (disapproving Supreme Court’s determination that depositor had no legitimate expectation of privacy in bank records, and holding to the contrary under Pennsylvania Constitution); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985), (disapproving the Supreme Court’s determination that individual had no expectation of privacy in numbers dialed, and holding pen registers constituted unreasonable search). This authority may indicate that what society is willing to consider as reasonable has a broader compass under Pennsylvania law than under the fourth amendment. Consideration of the history of protection against unreasonable searches and seizures in Pennsylvania, however, leads us to the conclusion that under the Pennsylvania Constitution, as well as under the Constitution of the United States, it is unreasonable to expect that one has a privacy interest in an abandoned structure which is not one’s dwelling place.

Although the home has always been as sacrosanct in search and seizure jurisprudence in this Commonwealth as under the fourth amendment, the same considerations which create those privacy concerns are not necessarily present when one is discussing not a home, but a mere structure. See In re Eckert, 260 Pa.Super. 161, 167, 393 A.2d 1201, 1204 (1978) (police did not need a warrant to enter a vacant house). Cf. Commonwealth v. Coyle, 415 Pa. 379, 397, 203 A.2d 782, 791 (1964) (constitutional safeguard against searches and seizures has reference to place of occupancy not vacated premises). Accord United States v. Thomas, 216 F.Supp. 942 (N.D.Cal.1963) (although protection of fourth amendment extends to periods of vacancy, where house had indefinitely been abandoned as a dwelling place and was being used solely as shelter for a still, the court found no fourth amendment protection available); cf. Kelley v. State, 146 Ga.App. 179, 245 S.E.2d 872 (1978) (court found protection against unreasonable searches and seizures applied to a tent which had attributes of a dwelling place even though it was set up on land which did not belong to the individuals claiming protection).

In this case, the Commonwealth offered evidence that officers had been to the same place the day before Cameron was arrested, and that they had been through the entire house. Sergeant Perrone stated that the second floor was littered with trash and excrement, that the windows were broken out and boarded over, and that the utilities were turned off. He further stated that he had arrested other individuals at the house the day before. Cameron was not there at that time, and when questioned after his arrest, gave another address as his home. Under the facts presented, Cameron had no right to enter the house, and had no right to exclude others from entering.

Cameron attempts to play on the conscience of the court by arguing that such a decision would be based in a “middle class” definition of a dwelling place. We disagree. We do not decide whether in other circumstances a vacant structure might be considered to be a “dwelling place” within the purview of article I, section 8. We merely find that under the facts of this case, a television, a couch, and a platter of food are insufficient attributes of a home, and so failed to call the protection against unreasonable searches and seizures into play. We see no reason to extend the protection against unreasonable searches and seizures to such a situation. We hold, therefore, that the trial court erred in finding that Cameron had a reasonable expectation of privacy in the house in question.

Reversed and remanded for proceedings not inconsistent with this memorandum. Jurisdiction is relinquished.

      . The automatic standing rule recognizes the standing of an accused to challenge a search and seizure where possession of the seized evidence at the time of the search and seizure is an essential element of the offense in question. Commonwealth v. Peterkin, 511 Pa. 299, 309-310, 513 A.2d 373, 378 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987). In order to establish standing, the accused must establish one of the four following personal interests:
      (1) his or her presence on the premises at the time of the search and seizure;
      (2) a possessory interest in the evidence improperly seized;
      (3) that the offense charged included as an essential element possession at the time of the contested search and seizure; or
      (4) a proprietary or possessory interest in the premises.

        Id.

      . The Commonwealth in its brief cites to us the standard of review of a suppression order when the defendant has appealed. In this case, the court granted the suppression order, and the Commonwealth has appealed, necessitating a somewhat different standard. See Hamlin, 503 Pa. at 215-216, 469 A.2d at 139.

      . Although our supreme court in Sell saw fit to retain automatic standing in Pennsylvania jurisprudence, and although in doing so, it questioned the concept of “legitimate expectation of privacy,” as discussed in Rakas, in the context of the standing analysis, see Sell, 504 Pa. at 59-62, 65-67, 470 A.2d at 464-466, 468, this does not render irrelevant to our analysis under Article I, section 8 the inquiry of whether a reasonable expectation of privacy existed, as Cameron argues. Sell gives Cameron the ability to raise his search and seizure issue. Once he makes his argument, the court must then determine whether or not the search was unreasonable in the context of the merits of his claim.

      . The supreme court discussed Beauford with approval in the recent decision of Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989).

      . As this court stated in Lemanski, the fourth amendment reflects the recognition of the Founders that "certain enclaves should be free from arbitrary government interference____” Lemanski, 365 Pa.Super. at 347, 529 A.2d at 1092 (quoting Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984)). The courts of this Commonwealth, as well as the Supreme Court of the United States, have "stressed ‘the overriding respect for the sanctity of the home that has been imbedded in our traditions since the origins of the Republic.’ [id.] ... The Fourth Amendment reflects a choice that our society should be one in which citizens ‘dwell in reasonable security and freedom from surveillance.’ ” Id. (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948)). As the Supreme Court stated in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958):
      [T]he precious interest of privacy [is] summed up in the ancient adage that a man’s house is his castle____ Remarks attributed to William Pitt, Earl of Chatham, on the searches incident to the enforcement of an excise on cider, eloquently expressed the principle:
      The poorest man may in his cottage bid defiance to the crown. It may be frail; its roof may shake, the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

        Id. at 307, 78 S.Ct. at 1194-95.
      As these quotations indicate, the Supreme Court, and the courts of this Commonwealth, have always interpreted the concern of the Founders to lie initially within the dwelling places of the citizens of this country and Commonwealth. This does not mean that the rights accorded to the individual within his or her home cannot be extended to other areas; as the Katz Court’s often quoted expression puts it, the fourth amendment protects people, not places. See Katz, 389 U.S. at 351, 88 S.Ct. at 511. However, this focus militates against embuing with the sanctity of the home a structure which has no apparent connection to the individual’s basic right to be secure within his or her dwelling place.


author: BECK, Judge:

text:
    561 A.2d 788
    Mary Clair BROJACK, Appellee, v. David James BROJACK, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 20, 1989.
    Filed July 12, 1989.

      John J. Cerra, Carbondale, for appellant.
    Joseph P. Lenahan, Carbondale, for appellee.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   BECK, Judge:

This case raises, inter alia, the question of when a “buy out” remedy is appropriate in the context of equitable distribution of a marital residence.

Appellant David Brojack (husband) and appellee Mary Clair Brojack (wife) were married in 1976. Wife filed a complaint in divorce in August of 1983, which included claims for equitable distribution, alimony and counsel fees. Per stipulation of the parties, proceedings were bifurcated and the divorce was granted in October of 1985. On December 15, 1986, a hearing was held before the master and on December 4, 1987, the master filed a detailed report. Husband filed exceptions to the master’s findings. These exceptions were denied and the trial court entered an order finding the net marital estate worth $58,850.00. He recommended an award of 55% to wife and 45% to husband. Wife was also awarded counsel fees in the amount of $3,000.00. This appeal followed.

Husband makes the following claims of error: (1) the master’s findings of fact were not supported by the evidence; (2) the master abused his discretion by disregarding certain evidence; (3) the report of the master was not in conformity with the laws and rules of court; and (4) the master abused his discretion by his choice of a “buy-out” as a remedy.

In reviewing an order of equitable distribution, our consideration is limited to whether there has been an abuse of discretion or error of law. Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985). In reviewing a master’s report we must give fullest consideraton to the findings of the master who had an opportunity to observe the witnesses and is the best judge of credibility. Herwig v. Herwig, 279 Pa.Super. 65, 420 A.2d 746 (1980).

Husband’s first two claims of error center upon the trial court’s acceptance of the master’s recommendation made after an assessment of the evidence before him. Upon review of the record and the arguments raised by appellant in his brief, we find nothing to support the conclusion that the trial court erred in accepting the master’s findings relative to equitable distribution. In this regard, we affirm the order of the trial court on the basis of its opinion.

Next, husband claims that the master erred in failing to comply with Pa.R.C.P. 1920.54(c), and the Divorce Code, Pa.Stat.Ann. tit. 23 § 404 (Purdon Supp.1988). He notes that under Rule 1920.54(c), a master’s report treating a claim for equitable distribution must contain a separate section entitled “Division of Property” with the two subheadings “Marital Property” (listing all property and including a proposed distribution discussing factors for distribution), and “Nonmarital Property.” Husband notes that under Pa.Stat.Ann. tit. 23 § 404, the court, in entering a distribution order, must set forth the reasons for the distribution ordered. The information set forth should include, at a minimum: (1) what is available for distribution; (2) to whom the distribution is made; and (3) why the distribution is made. Appellant claims that the master’s report failed to conform to the rule and the statute. We disagree. Upon review of the record, we find that the master’s report is not deficient as the appellant would have us believe. The report clearly identifies the property, denotes its value and directs to whom it is to be distributed. The report also contains the reasons for the distribution. As the trial court noted, the master’s report sets out its finding and conclusions in an orderly fashion, reflecting thoughtful analysis.

Finally, husband claims that the master erred in ordering, husband to give wife a sum representing her interest in the marital home, stressing the impropriety of such a “buy-out” remedy in the matrimonial context. The husband owned the property prior to marriage and the wife’s interest was her share in the increase in value of the property during marriage. Husband relies upon Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1985) to support his position that a buy-out remedy is inappropriate in the instant action. Husband reads Barletta too broadly. Barletta concerned personal property and under the circumstance of that case the Pennsylvania Supreme Court required a distribution in kind of the personal property. It is unclear as to what remedy husband seeks. He certainly does not seek a distribution in kind of real estate. Furthermore, a distribution in kind of nondivisible real estate is impossible to achieve. It is clear that he is not requesting that the court order a sale of the real estate and a distribution of the proceeds. The real estate is titled in his name and he nowhere indicates that the court should have ordered it sold. It appears that he is using the Barletta shield inappropriately to complain about the wife’s entitlement to her interest in the increase in value of the property during marriage. See Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986) (Marital property includes accretion in value of spouse’s premarital property between dates of marriage and separation or divorce.). It further appears that he is indirectly complaining that the debts encumbering the home should be viewed as marital debts and not as encumberances on the real estate. Since husband did not directly challenge the award of the increased value of the home to the wife and did not directly challenge the master’s conclusions that the encumberances on the property were not marital debts we do not address those issues.

Even if husband had a legitimate Barletta claim, which he does not, we point out that the Barletta Court itself concluded: “we are not saying that the remedy of ordering a buy-out is prohibited by statute.” 506 Pa. at 409, 485 A.2d at 754. As to personal property, the Barletta court found that it should have been divided between the parties and not distributed to one spouse because the personal property “was readily severable and we believe capable of being divided without destroying its relative value.” 506 Pa. at 408, 485 A.2d at 754. The assumption underlying Barletta is that the spouse would have to sell the personalty in order to satisfy the obligation under the equitable distribution order.

After Barletta, the Superior Court decided Bold v. Bold, 374 Pa.Super. 317, 542 A.2d 1374 (1988). This Court considered a husband’s claim that the trial court erred in forcing him into a “buy-out” of his former spouse’s interest -in the marital home. The panel, without recognizing the very real difference between personalty and realty, noted that under Barletta and Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986), “a court may not resort to a buy-out remedy absent specific findings as to why the marital property cannot be divided.” Bold, 374 Pa.Super. at 322, 542 A.2d at 1379. As neither the master nor the trial court in Bold made any specific findings as to why the marital residence could not be divided, the panel remanded the case, directing the trial court to proceed in accordance with Barletta and Wolf

The instant case is clearly distinguishable from Bold. Here the master examined the status of both husband and wife in regard to the marital residence. In his report, the Master stated:

In this case, the parties agree and the evidence conclusively establishes that the Defendant (husband) alone purchased the real estate in question many months before the parties married. As for the home itself, 70% of the home was constructed prior to marriage. The Master finds that the Plaintiff (wife) does not have title to the real estate or the improvement thereon, Defendant does. However, Plaintiff does have an interest recognized by law. Plaintiff’s interest is statutory only and consists of an equitable portion of the increase in value of the home after the date of the marriage. This being the case, any debts incurred by the Defendant for construction of the home are his debts alone and not marital property. All parties agree that the Plaintiff at no time executed any debt or loan document. Defendant owns the home and is free to sell the home or dispose of it in any way he sees fit. The Plaintiff’s interest in the home is statutory and is restricted to the increase in value of same — Plaintiff’s interest is not as a titleholder.

The Master went on to list the various items to be included in the marital estate, including the $21,000 representing the increased value of the home subsequent to the marriage. The Master concluded the total marital estate was valued at $58,000 with 55% apportioned to the wife and 45% to the husband.

Based upon the foregoing, we believe that the Master in this case made the requisite specific findings as to why the marital residence should not be divided. The Master clearly characterized the different interests which husband and wife held in the marital residence. As the Master noted, the wife’s interest was purely statutory, whereas the husband held the title to the home. Given these interests, it is unclear what viable option other than a “buy out” of wife’s statutory interest husband desired.

We conclude that the master’s findings indicate that a “buy out” of wife’s statutory interest was warranted as the only viable solution here. By virtue of his interest, husband alone has the option of selling the home, or otherwise disposing of it. The “buy out” remedy was, therefore, clearly appropriate. We fail to see how any remedy other than a “buy out” could be applicable to real estate owned by the husband which, by its very nature, may not be divided and distributed.

Contrary to husband’s reasoning, this case does not present the problems which faced the Court in Barletta. The Barletta Court was concerned that in a declining market, the equitable distribution order might force the spouse to sell the personal property at less than the market value. In the instant case, however, we are dealing with real property, which can usually be subjected to a mortgage and thereby become a source of fluid funds.

The order of the trial court is affirmed.


author: TAMILIA, Judge:

text:
    561 A.2d 791
    Jamie N. LASKY, Appellant, v. Jesse I. LASKY. Jamie N. LASKY v. Jesse I. LASKY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 4, 1989.
    Filed July 12, 1989.
    William J. Gallagher, Kennett Square, for Jamie N. La-sky.

      A. Thomas Parke, III, Westchester, for Jessie I. Lasky.
    Before CAVANAUGH, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

These are cross-appeals of a trial court Order dismissing plaintiff/mother’s petition to increase the existing support Order for the parties’ eight year old son, Gregory, and granting defendant/father’s petition to modify child support by reducing the child support requirement of father to $400.44 per month. The Order subject of the two petitions for modification was entered by the hearing officer February 26, 1986 in the amount of $830, $490 being the support guidelines amount and $340 being allocated for psychiatric care for Gregory. Arrears on this Order were ultimately settled in the amount of $660 per month from September 16, 1985, the date of complaint to June 30, 1987. The following analysis and discussion will resolve the issues presented by both appeals.

Father was involved in a car accident on March 31, 1981 in which he suffered a serious head injury causing permanent brain damage and preventing him from ever being able to work again or live independently. As a result of a products-liability suit, a settlement was reached in December, 1984, of which he received approximately 80 per cent or $1,854,009 and wife received 20 per cent or $463,502. Pursuant to court Orders dispersing the settlement funds, father placed $185,400 in a trust for his son, which generates approximately $770 per month in income to support Gregory. In wife’s petition to increase support, she claims the reasonable needs of the child amount to $3,449 per month, while husband, in his petition to modify or dismiss the support Order, claims Gregory’s reasonable needs are being met by the trust fund income and the social security benefits Gregory receives in the amount of $161 per month.

Mother raises several issues on appeal alleging trial court error in its findings regarding the incomes and expenses of the parties, the reasonable needs of Gregory and the application of the Melzer formula. Father, in turn, argues the court erred in ordering him to pay anything more than the income taxes on the net income of the support trust.

Our scope of review is very limited in child support Orders — we will not disturb the Order unless the evidence is insufficient to sustain the Order or the trial court has abused its discretion. Steenland-Parker v. Parker, 375 Pa.Super. 457, 544 A.2d 1010 (1988). An abuse of discretion must be proven by clear and convincing evidence. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987).

“An abuse of discretion is not ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” (Citations omitted.)

Steenland-Parker, supra, 375 Pa.Superior Ct. at 461, 544 A.2d at 1012.

The Supreme Court in Melzer, supra, established guidelines for trial courts to follow in making child support determinations:

We hold, therefore, that in each case the hearing court must first calculate the reasonable expense of raising the children involved, based upon the particular circumstances — the needs, the custom, and the financial status — of the parties.
The court must next determine, as a matter of fact, the respective abilities of the parents to support their children. This Court has held that “[e]ach parent’s ability to pay is dependent upon his or her property, income and earning capacity____”
Once the court has determined the reasonable needs of the children and the amount of each parent’s income which remains after the deduction of the parent’s reasonable living expenses, it must calculate each parent’s total support obligation in accordance with the following formula:
Mother’s total support obligation = Mother’s income available for support Mother’s income available for support + Father’s income available for support x Child(ren)’s needs
Father’s total support obligation = Father’s income available for support Mother’s income available for support + Father’s income available for support x Child(ren)’s needs
Once each parent’s total support obligation has been defined, the court must determine what portion of that obligation may be offset by support provided directly to the children, and what portion of the support obligation must be satisfied by way of support payments to the other parent. It is clear that at least some portion of both parents’ total support obligations may be fulfilled by the provision of support directly to the children. (Citations and footnote omitted.)

Id., 505 Pa. at 473, 480 A.2d at 995-996.

The trial court found mother’s biweekly earned income to be $589, plus $2,216 per month interest on invested funds, $700 per month rent she collects on property she owns and $161 per month social security. Her total gross income is $4,245 per month or $3,245 net monthly income after deduction for income taxes. Additionally, the mother is living with a man in a condominium in New York, and this has the effect of skewing her actual personal expenses when the expenses of the other adult are not factored into the formula. The court then found mother’s reasonable needs to be $2,500 per month, making available support income equal to $745 per month.

The trial court found father’s yearly income to be $100,-311 in interest and dividends and a social security payment of $662 per month, giving him a net monthly income of $6,426 after yearly taxes of $30,659 are paid. Father’s expenses were determined to be $4,500 per month, leaving available $1,926 per month for support.

Finally, the court found the boy’s total monthly needs including day care expenses equals $1,830. As stated above, the child receives social security of $161 per month and an additional $770 per month from his support trust. The court applied the Melzer formula after deducting from Gregory’s anticipated needs $142/month in child care expenses in accordance with the Chester County Support Guidelines and $161 which represents his social security benefit. The court concluded that father should pay $1,099 per month in support, $770 of which comes from the trust, leaving $329 per month, plus $71 for child care, for a total of $400.44 father must pay in support, thus reducing the Order entered in 1986 from $830 to $400.44.

Although mother argues various specific points to show that the trial court erred in its calculations, we find the evidence is sufficient to sustain the award and the court did not abuse its discretion in reaching its decision. The trial court was free to reject any testimony it felt was unsubstantiated or invalid. Furthermore, mother’s claim that her eight-year old son’s monthly needs are $3,449 is ludicrous. The entire family lived on father’s $25,000 yearly salary prior to his accident but now, apparently, mother has acquired an affluent “New York” lifestyle due to the settlement of the products-liability suit and she believes father should support his son in the lifestyle to which she aspires. Mother argues father can well-afford to pay the kind of support payments she requests, however, this argument overlooks the fact that she has not established need for her requests and the excess will simply go to her enrichment. The father’s assets were obtained only because of the injury he suffered, he is permanently brain damaged and will never work again — the settlement proceeds he received must support him the rest of his life. Certainly we do not believe, as mother suggests, that father should pay an excessive amount in child support since he cannot possibly spend all his money on himself. We also reject as banal and degrading the theme of appellant’s argument that because appellee is brain damaged and incapable of locomotion, his needs for clothing, housing and other amenities is minimal and, therefore, his income should be dedicated to provide his son an extravagant life style (with peripheral benefits to his former wife).

We find the child’s needs will be properly met on the current support Order of $1099 per month which, we note, is $400 per month more than father believes his son needs, but which we believe is an appropriate figure after reviewing the record.

Order affirmed at No. 00029 Philadelphia, 1989.

Order affirmed at No. 00072 Philadelphia, 1989.

KELLY, J., concurs in the result.

      . Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).


author: HOFFMAN, Judge:

text:
    561 A.2d 793
    COMMONWEALTH of Pennsylvania v. Walter ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 30, 1989.
    Filed July 12, 1989.

      Mark J. McCarriston, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal nunc pro tunc from an order below denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant contends that the PCHA court should have granted his petition because trial counsel was ineffective for failing to file a motion to suppress his post-arrest statement to the police. Additionally, appellant contends that his prior appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel. We disagree, and for the reasons that follow, we affirm the order below.

Following a jury trial, on June 27, 1980, appellant was convicted of rape, kidnapping, two counts of involuntary deviate sexual intercourse (hereinafter “IDSI”), criminal conspiracy and two counts of simple assault. After denying post-verdict motions, on September 16, 1980, the court sentenced appellant to consecutive terms of imprisonment of four-to-eight years for one count of IDSI, three-to-six years for the second count of IDSI, three-to-six years for rape and two-to-five years for conspiracy. Appellant filed a pro se petition for reconsideration of sentence which was denied by the court. Thereafter, appellant appealed to this Court. This Court affirmed the judgments of sentence on February 26,1982. See Commonwealth v. Adams, 296 Pa.Super. 24, 442 A.2d 277 (1982). On April 7, 1983, appellant filed a petition under the PCHA. Counsel was appointed and an evidentiary hearing was held to determine whether appellant had received effective assistance from prior counsel. On October 2, 1986, the PCHA court denied appellant’s petition. Appellant then appealed to this Court, which dismissed his appeal due to procedural defects on April 14, 1987. Appellant with the aid of newly appointed counsel filed an amended petition under the PCHA. This appeal followed an order by the court granting appellant permission to appeal its October 2, 1986 order nunc pro tunc.

The law governing ineffective assistance of counsel claims was recently summarized by our Supreme Court as follows:

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). In this analysis, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Petras, 368 Pa.Super. 372, 375, 534 A.2d 483, 484 (1987); Commonwealth v. Jones, 298 Pa.Super. 199, 205, 444 A.2d 729, 732 (1982).

Appellant contends that appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel for failing to file a motion to suppress appellant’s statements to the police following his arrest. Specifically, appellant claims that he was too intoxicated to make a voluntary and intelligent waiver of his Miranda rights and counsel, therefore, should have sought suppression of his statement.

The fact that an accused has been drinking does not automatically invalidate his subsequent incriminating statements. The test is whether he had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it. Recent imbibing or the existence of a hangover does not make his confession inadmissible, but goes only to the weight to be accorded to it.

Commonwealth v. Smith, 447 Pa. 457, 460, 291 A.2d 103, 104 (1972).

Our first inquiry is to determine if appellant’s claim has arguable merit. At the PCHA hearing, appellant testified that he had been drinking excessively the entire day before his arrest and that he had repeatedly tried to inform counsel of his intoxication but that counsel was not listening:

[Appellant’s PCHA counsel:]
Q. And do you recall that specific date when you were arrested by the police for this case?
[Appellant:]
A. Yes, I do.
Q. And can you tell the Court how you were feeling at that time, what your general health was at that time?
A. Well, I had been drinking all that day and I was intoxicated when the detective came up and arrested me.
Q. If you recall, how much had you been drinking that day?
A. I was drinking heavy, a whole lot, as a matter of fact, like I say, I been drinking all day long and how much I couldn’t actually say but I know it was a lot.
Q. Do you recall what you were drinking?
A. Yes, I do. I was drinking some vodka, wine, beer and I had been drinking gin.
Q. Were these in large bottles, small bottles?
A. Large bottles.
Q. And at a subsequent date did you have a meeting with someone from the Defender Association or with Mr. Stanshine [trial counsel] to discuss your case?
A. I didn’t talk to Marty Stanshine until we was getting ready to start trial and that was the only time I talked to him during that time I was letting him know when the police had come out and arrested me I had been drinking very heavily and I was drunk when they arrested me.
Q. Did you attempt to notify Mr. Stanshine or anyone else from the Defender Association that you didn’t understand what was happening at the police station?
A. I tried to tell him. As a matter of fact, I tried to tell him even during the trial I was trying to tell him, any time I try to tell him anything he said don’t say anything to him. I figured he was the lawyer, he must know what he was doing.

See PCHA Hearing at 5-6, 9. We note, however, that appellant’s conclusion that he was intoxicated is belied by his ability to recall the details surrounding his arrest and statement. With regard to the events leading up to his arrest and statement, appellant testified:

Q. And do you recall the police coming to your house that day or that night?
A. They came that morning. It had to be about the 19th I think it was.
Q. And could you tell the Court what happened when the police came to your house?
A. Well, when they came there was a knock on the door and I had my wife to go down and see who it was and she went to the door and the detective, he told her who it was and he said he wanted to ask me some questions. I told her to let him in and when the door was opened they shoved her to the side and all the kids came running out to see what was going on, they came in with guns all in their hands and I was laying in the bed when they came in and the detective came in and told me you can come with me now or you can wait until I get a warrant for your arrest and at that time I told him I’ll wait because I didn’t know what was going on and then he forced me out the bed and put the gun in my chest and forced me out the bed and took me down the Roundhouse.
Q. And do you recall accompanying the police down to the station that night?
A. Yes.
Q. And do you recall also sitting with a police officer in an interview room that day or that night?
A. It was two of them there.
Q. And were the police officers questioning you at all?
A. Yeah, they was questioning me. As a matter of fact, to quote what the detective told me, the one that arrested me, he said I’m going to try to get you a hundred years just like I got the other guy.
Q. He said that to you?
A. Yes, he did.
Q. Did you recall that detective’s name?
A. I think it was Vail [sic], I’m not sure which one it was.

See N.T. PCHA Hearing at 6-7 (emphasis added). Appellant thus was able to recall, in detail, the sequence of events from the time the arresting detective arrived at his house, as well as the name of the detective, and that detective’s specific remarks.

Following the hearing, the PCHA court apparently found appellant’s testimony concerning his intoxication to be incredible and denied his petition as meritless. See PCHA Opinion at 3. With regard to that determination, we are mindful that:

[t]his court does not sit as trier of issues of fact, expecting to be persuaded that one or the other side is more credible. That is a task for a trial court and we would never invade that area of the judicial process. Rather, we look to whether the PCHA court’s determination is supported by evidence of record and is otherwise free of legal error.

Commonwealth v. Lutz, 492 Pa. 500, 507, 424 A.2d 1302, 1305 (1981) (citations omitted). Here, in light of appellant’s ability to recall the arrest and statement in such detail, it was clearly within the province of the PCHA court to discredit his testimony.

Moreover, the trial testimony of the arresting detective provides further support for the PCHA court’s conclusion that appellant’s statement was not involuntary. During the trial, Detective Vale testified as follows:

Q. Would you describe what you first said to the defendant?
A. Well, I informed Mr. Adams I was investigating an alleged rape which is supposed to have taken place on November 28th, 1978. I explained to him where it took place, inside the cemetery. I advised him that he was going to be charged with this rape and I advised him of his Constitutional warnings which we have from the police standard interrogation card, 75-Miscellaneous-3. I asked him if he understood these questions. I then asked him seven questions from this card and I recorded his answers to these questions. I then took a statement from Mr. Adams in reference to the rape.
Q. And were his answers, before he made any reference to the rape, consistent with his willingness to speak to you?
A. Yes, sir.
Q. How would you describe his condition at the time that you interviewed him?
A. Well, not having known him before, I can only describe my conception of his condition. He was wide awake. Apparently — he was in normal condition.

See N.T. June 24, 1980 at 2.208-2.209 (emphasis supplied). When questioned on cross-examination about the interrogation, Detective Yale testified as follows:

Q. You questioned Mr. Adams and you said you warned him of his rights. You told him he had a right to remain silent; isn’t that right?
A. Yes.
Q. And you told him whatever he said could be used against him; isn’t that right?
A. Yes, sir.
Q. And you told him he could have a lawyer; isn’t that right?
A. Yes, sir.
Q. And Mr. Adams told you he didn’t want to remain silent; isn’t that right?
A. Yes, sir.
Q. And he told you he didn’t want a lawyer; isn’t that correct?
A. Yes.
Q. He told you he just wanted to tell you what happened, is that right?
A. Yes, sir.
Q. And you didn’t force him or anything, he voluntarily, of his own free will, told you what was in that statement; is that correct?
A. That’s correct.

See N.T. June 24, 1980 at 2.226-7.

Because the record supports the PCHA court’s determination that appellant had “sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it,” Commonwealth v. Smith, supra, we conclude that his claim that counsel was ineffective for failing to file a motion to suppress his statement lacks arguable merit. See Commonwealth v. Lutz, supra. Similarly, appellant’s contention that appellate counsel were ineffective must fail. Accordingly, we affirm the order below.

Order affirmed.

      . The Post Conviction Hearing Act has been modified in part, repealed in part, and renamed the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-46. The .new provision applies to all actions for collateral relief instituted on or after April 13, 1988 the effective date. The instant petition was filed before April 13, 1988; thus, it will be evaluated under the former act.


author: ROWLEY, Judge:

text:
    561 A.2d 797
    Floyd E. GOUSE, Appellant, v. Douglas R. CASSEL, M.D.
    Superior Court of Pennsylvania.
    Argued April 18, 1989.
    Filed July 14, 1989.

      Richard H. Wix, Harrisburg, for appellant.
    Christian S. Erb, Jr., Harrisburg, for appellee.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   ROWLEY, Judge:

This is an appeal by Floyd E. Gouse from a judgment entered against him in a medical malpractice action arising out of a splenectomy performed on appellant by appellee, Dr. Cassel, in mid-October, 1976. At the trial, in November 1986, appellant alleged that his informed consent to the surgery was not obtained, that the surgery was unnecessary, and that the operation and follow-up care were negligently performed. The appellee was granted a compulsory nonsuit on the negligence count, and the informed consent issue was sent to the jury in the form of two interrogatories:'

1. Was Mr. Gouse advised of those material facts, risks, complications and alternatives to surgery, which a reasonable man would have considered significant in deciding whether or not to have the operation?
2. If you find that the plaintiff was not advised of those material facts, risks, complications and alternatives to the surgery, do you find that a reasonable man having Mr. Gouse’s diagnosis and in Mr. Gouse’s condition would have agreed to undergo the operation nevertheless?

The jury answered the first interrogatory in the negative and the second in the affirmative, and the trial judge entered judgment against the appellant. Appellant appeals, asserting first, that the second interrogatory should not have been given at all; and second, that if given, the second interrogatory should have presented a subjective rather than an objective (“reasonable person”) standard for causation. Appellant requests that his case be remanded for a trial solely to determine the amount of damages to be awarded or, in the alternative, a new trial. Based on our thorough review of the record, consideration of the arguments presented, and search of the law of informed consent in Pennsylvania, we reverse the judgment of the trial court and remand this case for a trial solely to determine the amount of damages to which appellant is entitled.

Our court, in deciding if a new trial should be ordered, must consider whether the trial court abused its discretion or committed an error of law which might have affected the outcome of the case. Cooper v. Burns, 376 Pa.Super. 276, 281, 545 A.2d 935, 937 (1988). The jury here found that appellant’s consent to the surgery was not “informed.” If, as appellant claims, it was error for the second interrogatory to be sent to the jury, the outcome of the trial without that interrogatory would have been a judgment for the appellant, with only the amount of damages in question. If, on the other hand, the second interrogatory, as written, incorrectly represents the law of Pennsylvania, the outcome of the trial might have been reversed. Since we find that it was error for the trial judge to give the second interrogatory to the jury, we do not address appellant’s second issue.

In Pennsylvania, if a physician fails to obtain a patient’s informed consent for a surgery he performs, that doctor is guilty of assault and battery and “is liable for any injuries resulting from the invasion____” Cooper v. Roberts, 220 Pa.Super. 260, 265, 286 A.2d 647, 649 (1971), applying the rule in Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). The Civil Instructions Subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions cites both Gray and Cooper v. Roberts in its notes on § 10.06A of the proposed civil jury instructions. It concludes that because a doctor commits a battery on his patient when he operates without informed consent, the jury should not be instructed on legal causation and the patient can prevail in his action without having to show that if properly informed about the operation, he would not have consented to it.

The decisions of this Court since Gray similarly have mirrored the reverence that this state holds for the idea that a competent adult citizen should have the right to medical self-determination. Jozsa v. Hottenstein, 364 Pa. Super. 469, 528 A.2d 606 (1987); Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986); Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978); Jeffries v. McCague, 242 Pa.Super. 76, 363 A.2d 1167 (1976); Cooper v. Roberts, supra. Most recently, we reaffirmed the paramount importance of the informed consent doctrine, and spoke to the very issue raised by this appellant, in Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165 (1987). In that decision, we held that:

“It bears repeating that the standard is whether the defendant-physician disclosed all the facts, risks, and alternatives that a reasonable person in the situation, which the physician knew or should have known to be the plaintiff-patient’s, would declare significant in making a decision to undergo the recommended treatment. Recovery is based on the administration of surgical procedure in the absence of the patient’s informed consent, not on whether the patient would not have gone through with the operation if warned of a particular danger.” (Emphasis ours.)

Id., 367 Pa.Superior Ct. at 580-81, 533 A.2d at 169.

The trial court here, acting without benefit of our opinion in Sagala, relied on dictum in Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103 (1987). There, the court wrote that a physician is liable for damages to his patient where:

“1) the physician fails to disclose any risk in the recommended treatment, or the existence of any alternative method of treatment, that a reasonable person would deem material in deciding whether to undergo the recommended treatment; 2) the patient would have foregone the recommended treatment had he or she known of the undisclosed information; and 3) as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed____”

Id., 365 Pa.Superior Ct. at 478, 530 A.2d at 111. The trial court concluded that Neal requires the submission of a two-part interrogatory to the jury, asking first if there was informed consent and, second, if not, did the lack of informed consent make any difference to the patient’s decision to accept the treatment. However, a more comprehensive review of the quoted passage from Neal, in the context in which it was presented, reveals that the court there did not rely on such a determination of causal relation to answer the question of whether the physician was liable for injuries to the patient from undisclosed risks. Rather, the court’s decision rejecting plaintiff’s claim of lack of informed consent was based on the conflict in evidence regarding whether the defendant-physician did surgery of the type which could have caused the injury to the patient, and further, on plaintiff’s failure to prove that she was uninformed of the risks and alternatives. The court in Neal particularly noted the lack of expert testimony about the nature and magnitude of the risks and alternative methods of treatment as reason for its finding. The concerns of the court in Neal thus are completely distinguishable from the issue of whether the plaintiff-patient must prove that he (or a reasonable person) would not have consented to the treatment had the risks been disclosed. Therefore, to the extent that the portion of the decision in Neal upon which the trial court here based its decision to issue a second interrogatory is contrary to this opinion, we note that it was not necessary to the holding of the court in Neal, therefore was dictum, and does not bind us. In re Estate of Pew, 411 Pa. 96, 103, 191 A.2d 399, 404 (1963) (what is actually decided and controlling is the law which is applicable to the specific facts of that particular case, and although “great consideration” is due other statements and conclusions contained in the opinion, they are not controlling); In re Estate of Cassell, 334 Pa. 381, 384, 6 A.2d 60, 61 (1939) (if the statement is not necessary to the decision, it is dictum and not binding authority).

We reaffirm our opinion in Sagala, in which we held that it is improper for a trial court to add to the law in Pennsylvania by saying that before a jury can render a verdict for a plaintiff-patient, that plaintiff must show that a reasonable person in his place, having been properly advised by his doctor, would not. have consented to surgery. Id., 367 Pa.Superior Ct. at 580, 533 A.2d at 169. We refuse to eviscerate the doctrine of informed consent by predicating materiality and, thus, the mandate for disclosure of risks and alternatives, upon a factfinder’s determination that a plaintiff-patient would have declined treatment had the disclosures been made.

The Judgment of the trial court is reversed and this case is remanded for a trial solely to determine the amount of damages to be awarded to appellant.


author: MONTEMURO, Judge:

text:
    561 A.2d 800
    ROYAL BEDDING COMPANY, Appellant, v. Regis LORENZ and David Lorenz, i/a/t/a/d/b/a David Johns Furniture and Carpet American Bedrooms, Claimant Shaw Industries, Kuss Manufacturing American Excelsior, Co., Philip M. Bell, Co. and Penn Custom Mfg. Co., Appellees.
    Superior Court of Pennsylvania.
    Argued April 24, 1989.
    Filed July 10, 1989.

      Charles F. Bennett, Pittsburgh, for appellant.
    Paul M. Daniels, Pittsburgh, for American Excelsior, Participating Party.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Westmoreland County denying appellant’s petition for counsel fees and costs. We reverse.

Pursuant to a writ of execution based on a judgement entered against appellees, appellant arranged a sheriff’s levy against certain goods in two of appellees’ six stores. Six suppliers of those goods, to whom payment had not been fully rendered, filed property claims with the sheriff, who stayed sale and issued determinations that the claimants were prima facie owners of the property. Appellant’s objections to these decisions activated a sheriff’s interpleader proceeding under Pa.R.C.P. 3206(b), which was resolved by the trial court in appellant’s favor. However, appellant’s Petition to obtain counsel fees and costs was denied on the. grounds that 42 Pa.C.S.A. § 2503 cited in support of such recovery was inapplicable to a sheriff’s interpleader action. This appeal followed.

In its supporting opinion, the trial court excludes § 2503 from consideration, reasoning that sheriff’s interpleader is intended to fulfill a different and incompatible purpose than settling competing claims, that is, only to

“protect the Sheriff from the hazard and expense of actions which might otherwise be brought against him by persons claiming the goods on which he had levied and were not the party against whom the process had issued.” (T.C.O. at 2).

Having posited this premise, the court goes on to explain that appellant, having received disposition in its favor both as to title, as between appellant and the claimants, and as to financial liability, between appellant and appellee, should not now

be further enriched by collection of counsel fees from parties who were, by [appellant’s] actions, forced to defend their title before the Sheriff and the Court. (Id., at 4).

We find that this analysis rather misses the point: presumably, judgment was rendered in appellant’s favor in both instances because by law it was entitled to such judgment, not because it elected to make a nuisance of itself in court. Appellant need not be punished for enforcing rights which, without judicial determination, might well have been lost. Further, even were this not the case, the Sheriffs Interpleader Act, Pa.R.C.P. 3213 does not contain the limitation imposed upon it by the court’s interpretation, in fact quite the opposite.

Rule 3213 reads as follows:

The judgement in the interpleader proceedings shall determine the title to the claimed property as among parties to the interpleader, provide for disposition of the proceeds of the sale thereof, fix the amount of special damages sustained by the claimant if he has sustained his claim or the amount of any liability of the claimant if property has been delivered to him to which he has not sustained his claim and shall include such counsel fees as may[] be awarded by the court as part of the costs.

(Emphasis added.)

To emphasize the applicability of this section to appellant’s case, we point out that the Note to the Rule specifically states that 42 Pa.C.S.A. § 2503(5) “remain[s] unsuspended insofar as [it] relate[s] to costs including the allowance of counsel fees.”

1 Pa.C.S.A. § 1922, concerning statutory construction states that in ascertaining the intent of the Legislature in enacting a statute, it is presumed that no absurd or unreasonable result is intended, and that the entire statute is meant to be effective and certain. Under the trial court’s interpretation, none of these strictures has been regarded. We therefore return this matter to the court below for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction is relinquished.

      . RULE 3206 SHERIFF’S DETERMINATION IN FAVOR OF CLAIMANT. OBJECTIONS ...

        (b) Any execution creditor or defendant may, within ten (10) days after the date of mailing of the copy of the determination and valuation, file with the prothonotary and with the sheriff an objection to the determination substantially in the form provided by Rule 3260. The sheriff shall send by ordinary mail the copy of the objection to all other parties. Upon the filing of the objection an interpleader shall be at issue in which the claimant shall be the plaintiff and all other parties in interest shall be defendants. The only pleading shall be the claim, all averments of which shall be deemed to be denied.

      . 42 Pa.C.S.A. § 2503. Right of Participants to receive counsel fees. The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
      (5) The prevailing party in an interpleader proceeding in connection with execution upon a judgement.

      . Appellee argues that the trial court’s decision is supportable because the statute makes an award of counsel fees discretionary. This is clearly correct, and the trial court is free to refuse appellant’s petition. However, to have done so on grounds that the statute is inapplicable to sheriff s interpleader actions was an error of law, and therefore an abuse of that discretion with which the court is invested.


text:
    561 A.2d 802
    Janet D. ROBERTS, Appellant, v. Edward P. FURST.
    Superior Court of Pennsylvania.
    Argued April 19, 1989.
    Filed July 17, 1989.
    Andrew B. Brown, York, for appellant.

      Douglas R. Bare, York, for appellee.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   ROWLEY, Judge:

The parties to this appeal, appellant Janet Roberts (“Mother”) and appellee Edward Furst (“Father”), were divorced in 1973. They are the parents of Charlotte, born December 11, 1970, and Jennifer, born March 2, 1978. The children reside with Mother, her present husband, Garry Roberts (“Roberts”), and two children born to Mother and Roberts. Father paid child support to Mother until March 15, 1978, when Father, Mother, and Roberts entered into an agreement releasing Father from any further child support obligation in exchange for Father’s payment of $9,000.00 to Mother and Roberts. The agreement specifically provides that Mother and Roberts will provide support and maintenance for the children in lieu of Father’s support and that they will execute a judgment note in the amount of $9,000.00 as security for Mother’s promise not to make any further claim for support against Father.

All concerned abided by the agreement until March 21, 1988, when Mother filed a complaint for child support against Father. In an order entered May 10, 1988, Father was ordered to pay child support of $95.00 per week. The case was certified as complex and a hearing was held, following which, on October 14, 1988, the trial court entered an order reversing the order of support and dismissing Mother’s complaint.

In this timely appeal of the October 14, 1988, order, Mother contends that the agreement signed in 1978 violates public policy and the principle of law, set forth in Miesen v. Frank, 361 Pa.Super. 204, 208, 522 A.2d 85, 87 (1987), that a parent cannot contract away a minor child’s right to adequate support from the other parent. In addition, she asserts that the agreement was executed as a result of undue influence, coercion, and overreaching on the part of Father and his counsel. Mother asks this Court to find the agreement null and void and to reinstate the support order of $95.00 per week, retroactive to October 14, 1988. We affirm the order of the trial court.

Regarding Mother’s first claim, we note that in Miesen v. Frank, supra, appellee/mother agreed to be solely responsible for the support of the parties’ children and to indemnify appellant/father for any amount of support ever claimed by the children against him. The present case, in which Roberts as well as Mother has taken on the responsibility of supporting the children, is factually similar to Commonwealth v. Cameron, 197 Pa.Super. 403, 179 A.2d 270 (1962). In that case, mother and father were divorced, mother remarried, and mother and her husband entered into a written agreement releasing father from liability for support and expressing mother’s husband’s willingness to assume parental duties. This Court upheld the trial court’s refusal to impose a support obligation upon father, explaining that although one parent cannot bargain away a child’s right to adequate support from the other, an agreement in which one parent releases the other from the duty of support will be enforced so long as it is fair and reasonable, was made without fraud or coercion, and does not prejudice the welfare of the children involved. Id., 197 Pa.Superior Ct. at 406, 179 A.2d at 272. We decline to find, as Mother urges us to do, that this Court’s holding in Cameron is outdated and/or has been implicitly overruled by Miesen v. Frank.

As the trial court points out, Mother and Roberts “have a total gross income of $54,000-$58,000 per year, and are financially able to support the two children” (Trial Court Opinion at 5). Mother testified that after releasing Father from his support obligation, she and Roberts, with some help from her parents, have been able to meet the children’s needs (N.T. at 13). Asked why she filed the support action against Father, she testified as follows:

A: In all honesty, I never realized how much it costs to raise kids. Prices have gone up. You just don’t realize all the incidentals. And talking with other people, they said the agreement — nobody ever heard of an agreement like that and you should check with a lawyer. So, that’s what I did, to see what could be done.

(N.T. at 53-54). Subsequently the court asked the following questions of Mother:

Q: The children have been supported for the past ten years, have they not?
A: Yes.
Q: And that is by you and Mr. Roberts and it has nothing to do with Mr. Furst, he hasn’t supported the girls for the past ten years, has he?
A: No.
Q: Has something changed in the past ten years that has resulted in you and your current husband being unable to support the girls?
A: Not unable, but with the addition of two children and the cost of living—
Q: How old are your other two children?
A: Garry is 9 and Jessica is 11.
Q: Why was it that you did not file for support when those children were born?
A: Because I thought this was a valid document and Ed [Father] said he’d take our house if we did and the document looks like it reads that way.
Q: Is it my understanding that the reason you have filed for support is that the agreement ... according to your information, is not a valid document?
A: There’s a possibility that it is not. That’s what I was trying to find out.
Q: Although it may be, if I can, for lack of a better term, tight for you and your current husband in supporting the two children if you’re not awarded a support Order, you will still be able to support them. Is that correct?
A: That [sic] will have a roof over their head and food. I mean, they’re not going to have — we can’t afford to do things like Charlotte’s car insurance and things like that for her to drive, extra things like that.
Q: That’s my question. Without the support Order, you cannot provide extras for your daughters?
A: Absolutely not.
Q: You can provide the means to support them, however?
A: I would make sure I did.

(N.T. at 62-64.) Roberts testified that he and Mother were having trouble making ends meet, were financially “strapped,” and were unable to save money for the children’s college education, but he also stated that “[w]e’re not poor” (N.T. at 68-70). Accordingly, given the facts now of record, we agree with the trial court that Father “is relieved from his obligation at the present time to support Charlotte and Jennifer” (Trial Court Order at 4; emphasis added). If, in the future, Mother and Roberts become incapable of supporting the children, Father’s obligation to contribute to their support, as the trial court recognizes, will resume.

Mother’s second claim is that Father and his counsel engaged in undue influence, coercion, and overreaching in connection with the execution of the agreement. Regarding her signing of the agreement, however, Mother testified that “it wasn’t a hostile atmosphere” (N.T. at 47) and “[i]t was relaxed” (N.T. at 55). Although she asserts in this appeal that Father’s lawyer “threatened [her] that if she failed to sign she would risk receiving no child support as [Father] would flee the state” (Brief for Appellant at 25), her actual testimony, when asked what Father’s lawyer said to her, was:

A: When I hesitated, it was not a coercive tone, it was a matter of fact statement, he could die or he could run, he could leave the state, run. And Ed [Father] just stood there ... nodding his head. Nobody screamed, nothing like that.

(N.T. at 61.) Mother also directs our attention to the statement in Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983), regarding a separation agreement establishing appellant’s child support obligation, that “there is no suggestion that the separation agreement is one-sided, or that in entering into it, appellant was uncounseled, or that the [amount of] child support provided in the separation agreement is inadequate.” Id., 311 Pa.Superior Ct. at 507, 457 A.2d at 1297. In the present case, Mother asserts that she and Roberts entered into the agreement, drawn up by Father’s lawyer, without benefit of counsel; that she had not retained counsel because Father had told her that she did not need to do so; and that when “I mentioned maybe I ought to have a lawyer look at this” (N.T. at 48), Father’s lawyer called in another lawyer from the same firm who “flipped through [the agreement] and said it was fine” (N.T. at 48). Mother also testified, however, that she asked some questions of Father’s lawyer, that the second lawyer was an acquaintance of her parents, and that she trusted his judgment (N.T. at 48-49, 56). We note that although Mother “still had reservations” at the time she signed the agreement (N.T. at 56), she and Roberts did not seek legal advice in the interim between her signing of the agreement and Roberts’ subsequent signing of it within the next several days. In addition, she and Roberts had sufficient confidence in Father’s lawyer to retain him to represent them in the purchase of their home. Having reviewed the record and the arguments of the parties, we cannot say that the trial court abused its discretion in finding that Mother failed to prove her allegations of undue influence, coercion, and overreaching.

Order affirmed.

      . We note that although Father’s brief and the trial court’s opinion give the birth date of the parties’ older daughter, Charlotte, as December 11, 1971, the certified record indicates that it is in fact December 11, 1970, and Charlotte is now eighteen. In Pennsylvania a parent may be obligated to support a child who is eighteen or older if the child 1) wishes to obtain a college education or 2) is unable, due to a physical or mental defect, to support himself or herself. Griffin v. Griffin, 384 Pa.Super. 188, 194, 558 A.2d 75, 78.


text:
    561 A.2d 804
    RELIABLE SAVINGS AND LOAN ASSOCIATION OF BRIDGEVILLE, Pa., v. Philip H. JOYCE and Patricia D. Joyce, his Wife. Appeal of EQUIBANK.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1989.
    Filed July 17, 1989.

      James F. Grenen, Pittsburgh, for appellant.
    Christopher J. Richardson, Pittsburgh, for Pittsburgh Nat. Bank, Participating Party.
    Before ROWLEY, KELLY and HESTER, JJ.
   ROWLEY, Judge:

This is an appeal by Equibank, from a final decree of distribution of proceeds from a sheriffs sale awarding the proceeds to appellee, Pittsburgh National Bank (PNB). Both Equibank and PNB had obtained independent judgments against defendants Philip and Patricia Joyce, Equibank’s having been obtained first in time. PNB has never commenced any execution proceedings against the Joyces to obtain satisfaction of its judgment. Equibank, on the other hand, was the successful bidder (for costs alone) on property being sold on January 9, 1987, with regard to its judgment against the Joyces. However, before taking legal title to the property on which it successfully bid, Equibank assigned its interest in the property to Clinical Pathology Facility, Inc. (Clinical Pathology) for $125,000. On March 12, 1987, the sheriffs deed conveying the property to Clinical Pathology was recorded. No petition for deficiency judgment has ever been filed by Equibank.

In the present case, Reliable Savings and Loan Association of Bridgeville foreclosed on the mortgage on the home of the Joyces. At issue in the present case is the distribution of the proceeds from the sale of the Joyces’ home. The sheriff proposed distribution of the assets of the sale of the property to PNB. Equibank filed exceptions to the proposed schedule of distribution on the basis that its judgment against the Joyces has priority over PNB’s because it was prior in time. The trial court denied the exceptions on the theory, asserted by PNB in its response to Equibank’s exceptions, that Equibank’s judgment against the Joyces was deemed to be satisfied as a matter of law when the six month period for filing a petition for deficiency judgment under 42 Pa.C.S. § 5522(b) had expired following its successful, January 9, 1987, bid against property of the Joyces, and no petition had been filed. This appeal followed.

The primary argument raised by Equibank is that the requirements of the Deficiency Judgment Act, 42 Pa.C.S. § 8103 et seq. are inapplicable to it because the Act applies only to purchasers at a sheriff’s sale, and it was not a purchaser but only a successful bidder which, before taking either legal or equitable title to the property, assigned its successful bid to a third party. We agree with the trial court’s discussion of and conclusion that Western Flour Co. v. Alosi, 216 Pa.Super. 341, 264 A.2d 413 (1970), supports the rule that even a successful bidder at a sheriff’s sale who assigns his right to possession of property to a third party must comply with the Deficiency Judgment Act. See trial court opinion p. 9 footnote 9.

We do not agree with Equibank’s assertion that because of the procedural rules unique to sheriff’s sales in Allegheny County, Equibank cannot be labelled the “purchaser” from the moment the sheriff “knocked down” the property like the assignor in Western Flour was characterized. Appellant argues that a successful bidder at a sheriff’s sale in Allegheny County does not obtain equitable title to the property and therefore does not obtain the right to sell the property until it pays to the sheriff the amount of its bid before the first Monday of the month following the sale. Because Equibank assigned its right to the successful bid to Clinical Pathology without ever paying the amount of its bid to the sheriff’s office, and because the sheriff gave Clinical Pathology the deed to the property, Equibank claims that it never had legal or equitable title to the property and therefore cannot be considered the purchaser.

Between the time of Equibank’s successful bid (for costs) and the time that it assigned its right to the successful bid (for the sum of $125,000), it was exclusively within the control of Equibank either to pay the amount of its bid and thereafter acquire legal title to the property, or convey the right to the bid as it did in this case, for presumably a much larger sum than its bid, thereby acquiring the full benefit of having technically purchased the property insofar as satisfaction of its judgment against the judgment debtor is concerned without having to take legal title to the property. Because this choice was exclusively within the control of Equibank, we do not find significant the fact that it never paid the sheriff the amount of its bid, but instead assigned to a third party, for value, its right to do so.

On the facts of this case, appellant has acquired, through the assignment of its right to acquire the property upon payment of the costs, the full benefits of a purchaser of property at the sheriff’s sale. Thus indirectly, it has in effect purchased the property. Because the Deficiency Judgment Act, by its express terms, is applicable to both direct and indirect purchasers of property in execution proceedings, 42 Pa.C.S. § 8103(a), the Deficiency Judgment Act is applicable in this case.

We also find that contrary to Equibank’s assertion, the purpose of the Deficiency Judgment Act, to prevent judgment creditors from executing on numerous pieces of the judgment debtor’s property and purchasing them for a nominal price at a forced sale without having the judgment marked satisfied, Green & Son v. Kimwyd, Inc., 410 Pa. 202, 189 A.2d 231 (1963), has been satisfied in this case. Equibank reaped the benefit of the forced sale, in January, 1987, resulting from the execution proceedings which it commenced by bidding on the property for costs only, and immediately transferring the right to pay the bid on the property and thereby acquire legal title to it for the sum of $125,000. It is attempting again in the present case, involving execution proceedings commenced by a party unconnected with this appeal, to acquire more of the judgment debt- or’s assets. Although Equibank states that it is receiving no windfall here because it voluntarily had the amount of its judgment against the Joyces reduced by the $125,000, there is nothing to indicate that the $125,000 which Equibank received for the assignment of its rights to purchase the property was related to the actual fair market value of the property.

We find no merit to Equibank’s assertion that the Deficiency Judgment Act does not preclude its status as a creditor of the Joyces on the theory that it has never obtained a deed to the property and that the time for petitioning for a deficiency judgment does not begin to run until the purchaser obtains the deed to the property. Since we find that Equibank was an indirect purchaser, the time for filing the petition to establish the deficiency judgment began to run when Equibank’s assignee was delivered the deed, March 12, 1987.

Equibank also argues that PNB lacked standing to assert Equibank’s failure to comply with the Deficiency Judgment Act. However, the Deficiency Judgment Act provides that “any person interested in any real estate which would, except for the provisions of this section, be bound by the judgment,” may petition to have the judgment marked satisfied. 42 Pa.C.S. § 8103(d). As another judgment creditor of the Joyces, PNB has an interest in the property of the Joyces involved in this case, and but for the provisions of the Deficiency Act, its lien would remain subordinate to that of Equibank as a result of Equibank’s judgment against the Joyces. Therefore, under the Act, it could have petitioned for the judgment to be marked satisfied. Moreover, in In re Right of Way for Legislative Route, 48 Pa.Cmwlth. 144, 409 A.2d 923 (1979), although the Court did not discuss the question of whether a creditor of the judgment debtor could challenge another judgment creditor’s failure to comply with the Deficiency Judgment Act, the Court nevertheless held, upon consideration of the competing claims of first and second mortgagors to a condemnation award for the property subject to the mortgage, that because the first mortgagor had failed to comply with the Deficiency Judgment Act in prior execution proceedings, there was an irrebuttable presumption that the debt to it was paid in full, and therefore the second mortgagor was entitled to the condemnation award. There is no material distinction between the mortgagors in In re Right of Way for Legislative Route and the judgment creditors in the present case.

Finally, Equibank’s argument that PNB is barred by laches from objecting to Equibank’s failure to comply with the Deficiency Judgment Act because PNB did not assert that Equibank’s judgment against the Joyces should be marked satisfied until 15 months after the delivery of the deed to the property is without foundation since the failure of the judgment creditor to proceed under the Deficiency Judgment Act within the statutorily mandated time raises as a matter of law the conclusive presumption that the judgment has been satisfied. First National Consumer Discount Co. v. Fetherman, 515 Pa. 85, 527 A.2d 100 (1987). Moreover, appellant has not asserted the nature of the prejudice it has suffered as a result of PNB not having sought earlier to have Equibank’s judgment marked satisfied. Equibank has only baldly asserted that it is “certainly prejudiced.” (Appellant’s brief at 30.)

Final decree affirmed.


text:
    561 A.2d 808
    METCO, INC., a Pennsylvania Corporation, Appellant, v. MOSS CREEK, INC., a Pennsylvania Corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued May 24, 1989.
    Filed July 19, 1989.

      George P. Wolfe, Johnstown, for appellant.
    R. Dell Ziegler, Pittsburgh, for Moss Creek, appellee. Kevin L. Sanders, Johnstown, for Randy Swickle, appellee.
    Before OLSZEWSKI, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

In this opinion, we will address two unconsolidated appeals filed by the same party, Metco, Inc., a Pennsylvania corporation. The appellees are Moss Creek, Inc., a Pennsylvania corporation (No. 01799 Pittsburgh 1988) and Randy Swickle (No. 1805 Pittsburgh 1988). The underlying facts and issues involved in these two appeals are the same.

Our review of the record reveals that in May of 1987, Metco, the appellant, entered into a contract with Moss Creek to build eight condominiums for Moss Creek. We note the following description of the eight condominiums which appears in Moss Creek’s appellate brief:

... The eight townhouses each have their own walkway, and their own outside decks. Each is designed for a separate family. There is no common hallway as might be found in an apartment building. There is no communication between the units. Each townhouse has its own utilities, including its own oil tank for heat. The eight townhouses are in four buildings, arranged in a sawtooth formation. The townhouses have different attached greenhouses and fireplaces. The four buildings share only an approximately twelve foot section of wall with any adjoining buildings. Otherwise, each building is its own structure.

Brief for Moss Creek, Inc., at 4. Our record contains a Mechanic’s Lien Claim filed by Metco on May 18, 1988, which alleges that the sum due and owing Metco from the Moss Creek condominium project equals $322,512.00. The lien claim is directed against all eight of the Moss Creek condominium units and the real estate on which these units are located. Later, on June 10, 1988, Metco filed another Mechanic’s Lien Claim for the same sum: $322,512.00. The named defendant’s in the later lien claim are Moss Creek and Randy Swickle, and the lien claim is directed against two specific condominium units which Randy Swickle purchased from Moss Creek. Following a review of the preliminary objections filed on behalf of Moss Creek and Randy Swickle, the trial court, on November 15, 1988, entered two orders, striking both of the Mechanic’s Lien Claims set forth above. We affirm.

In order to set forth valid lien claims, Metco was required to comply with the specific dictates of 49 P.S. § 1306(b):

(b) Apportionment of Claims. Where a debt is incurred for labor or materials furnished by the same claimant for work upon several different improvements which do not form all or part of a single business or residential plant, the claimant shall file separate claims with respect to each such improvement, with the amount of each claim determined by apportionment of the total debt to the several improvements, and in such case, the amount of each separate claim may be less than five hundred dollars ($500), provided that the total debt exceeds five hundred dollars ($500). In no other case shall an apportioned claim be allowed.

See 49 P.S. § 1306(b) (emphasis added). In Meyers Plumbing and Heating Supply v. Caste, 350 Pa.Super. 482, 504 A.2d 942 (1986), this Court interpreted 49 P.S. § 1306(b), and held that a “42 unit townhouse project [is] not subsumed by the term ‘plant’ within the meaning of 49 P.S. § 1306(b).” Id., 350 Pa.Superior Ct. at 488, 504 A.2d at 945. Thus, a single lien claim cannot be filed against an entire group of separate residential dwellings. In Meyers Plumbing and Heating Supply v. Caste, this Court specifically noted an early Pennsylvania case wherein the court had stated: “the term ‘residential plant’ did not mean two or more houses built together at the same time, but meant a dwelling house and ... garage ... or some similar building being necessary and used for the convenience of the dwellers of the residence.” Id. (citation omitted). In the case at bar, it is clear that the trial court correctly ruled that Metco failed to comply with the mandates of 49 P.S. § 1306(b), thus necessitating the court’s order striking Metco’s Mechanic’s Lien Claims.

We recognize that Metco makes the argument that it is unable to make an apportionment until each condominium unit is sold, because only then is the unit’s market value set. This observation is not relevant to the issues involved in this case. The law requires Metco to file separate lien claims against each condominium unit. The lien claims arise not from the market price ultimately obtained for the various condominium units, but from the kind and character of the labor and materials furnished by Metco and the prices charges for each. See Meyers Plumbing and Heating Supply v. Caste, supra (supplier’s failure to include all invoices for material supplied to subcontractor on credit justified trial court’s ruling that the supplier did not comply with requirements for the content of a mechanic’s lien claim as set forth in 49 P.S. § 1503(6)). It may be that Metco’s construction cost per condominium unit is not different. This does not alter Metco’s obligation under 49 P.S. § 1306(b) to file separate claims with respect to each condominium unit. In such a case, apportionment of the total debt to the improvements would presumably be in equal amounts.

For all of the foregoing reasons, we affirm the November 15, 1988, Orders of the Court of Common Pleas of Bedford County: No. 1799 and 1805 Pittsburgh 1988.

      . In his appellate brief, Randy Swickle includes a copy of a Mechanic’s Lien Claim apparently filed by Metco against all eight of the Moss Creek condominium units on April 6, 1988. We note that the earlier lien claim has not been included in the certified record before us. The fact has no effect, however, on the disposition of this appeal.

      . The record before us also contains three releases, wherein Metco agreed to release three of the condominium units from the Mechanics Lien Claim it had filed against Moss Creek. These releases were executed between Metco and the respective condominium buyers, apparently at the time of the sale of each condominium unit. Releases were executed by Metco in April, June, and December of 1988 in exchange for various amounts of money: $30,000.00, $80,000.00, and $50,000.00. The existence of these releases has no bearing or effect upon our holding in the instant appeal.

      . We note that Metco’s references to 68 Pa.C.S.A. § 3409(b) are both misleading and misplaced as that statutory section governs the release of properly lodged liens. Further, Metco contends that the trial court erred in not allowing it to amend its lien claims to provide the requisite apportionment. Metco is not precluded from filing Mechanic’s Lien Claims in the future.


author: WIEAND, Judge:

text:
    561 A.2d 810
    Anthony R. DeLUCA, Administrator De Bonis Non of the Estate of Angelina C. Viola, Deceased, Appellant, v. Carolyn J. SMALLER and the Goldbrick Co., Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1988.
    Filed July 27, 1989.

      Jack M. Bernard, Philadelphia, for appellant.
    John T. Quinn, Philadelphia, for appellees.
    Before WIEAND, McEWEN and MELINSON, JJ.
   WIEAND, Judge:

This is an appeal from an order denying a petition to award delay damages pursuant to Pa.R.C.P. 238.

On December 15, 1981, Angelina Viola, a sixty-seven year old homemaker, was struck by a vehicle operated by Carolyn Smaller and owned by The Goldbrick Co., Inc. Viola died a short time after the accident, leaving as survivors an elderly husband and two adult sons. On November 9,1982, the administrator of the decedent’s estate commenced wrongful death and survival actions against the owner and operator of the offending vehicle. On September 23, 1987, a jury returned a verdict in favor of the plaintiff and against the defendants which resulted in an award of $84,-000.00. A petition for delay damages was filed, and oral argument thereon was entertained by the court. Thereafter, the petition was denied. This appeal followed by the plaintiff.

The trial court found that all delay in resolving the claim for Angelina Viola’s death had been caused by her heirs. This finding was based, inter alia, upon the fact that the decedent’s adult sons had started harassing Carolyn Smaller, the driver of the offending vehicle, immediately following the accident. This harassment, the court determined, had been sufficient to cause a reasonable person to apprehend imminent danger. It caused Smaller to move without leaving a forwarding address. Threats, the court found, had also been made upon defense counsel and increased the difficulty in settling the case. In addition, the decedent’s heirs were uncooperative with their own counsel regarding settlement.

The petition and answer disclose that the defendant-appellees made numerous settlement offers, all of which were rejected. On September 29, 1982, before a complaint had been filed, an offer was made in the amount of $50,000.00. On November 22, 1982, the offer was increased to $60,-000.00. On April 7, 1983, defendants’ offer was increased to $65,000.00; and on October 19, 1983, the sum of $70,-000. 00 was offered. Negotiations for a structured settlement continued until July, 1984, when negotiations broke off. On September 3, 1987, an offer was made in the amount of $85,000.00. This was increased to $90,000.00 on September 16, 1987 and to $100,000.00 at the time of trial. All offers were rejected. The attitude of the decedent’s sons, according to the trial judge, was that they would abjure any settlement and leave it to the jury to determine the value of the case. The jury’s verdict, as we have observed, resulted in an award of $84,000.00.

The applicable law, when this case was decided by the trial court, had been stated by the Supreme Court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). In suspending the mandatory provisions of Pa.R.C.P. 238, the Court said it was impermissible to presume conclusively that all fault in the delayed resolution of a claim rested with the defendant. Instead,

[i]n making a decision on a plaintiffs entitlement to delay damages the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties’ respective responsibilities in requesting continuances, the parties’ compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors.

Id., 512 Pa. at 66, 515 A.2d at 1353. The trial court, in reliance on Craig, determined that the delay and inability to settle the claim in this case had not been caused by the defendant but by the unreasonable tactics of the heirs of the decedent.

The Supreme Court, in Craig v. Magee Memorial Rehabilitation Center, supra, did not mandate a hearing, although it did suggest that “[p]rior to reaching a decision, the judge may hold a hearing to resolve any factual disputes.” Id., 512 Pa. at 65, 515 A.2d at 1353 (emphasis added). See: Shellhamer v. Grey, 359 Pa.Super. 499, 505, 519 A.2d 462, 465 (1986) (“the determination of ‘fault’ now injected into the assessment of one’s entitlement to Rule 238 damages, is to be decided by petition and answer at the trial level, with the option available to the judge to hold a hearing to resolve any factual disputes.”). In the instant case, appellant did not request a hearing. On the contrary, when the petition for delay damages came before the court for determination, appellant’s counsel told the court, “I don’t think there are any factual disputes here.” Counsel was correct. The offers of settlement made by the defendant-appellees had been documented by averments contained in the petition and admitted in the answer thereto. Moreover, the trial judge had tracked the litigation and was familiar with its background and movement through the courts. Therefore, we reject appellant’s present argument that the trial court erred in failing to convene a more formal hearing before rejecting appellant’s request for delay damages. Not only had plaintiff’s counsel suggested the lack of a need for a hearing, but the pleadings and the trial court’s familiarity with the case provided an adequate basis for the court’s determination.

On November 7, 1988, the Supreme Court adopted a new Rule 238. There is nothing in the new rule, however, to suggest error in the determination made by the trial court in this case. Both Craig and the amended Rule 238 disallow recovery of delay damages where it is the plaintiff who has caused the delay. Thus, the new Rule 238 does not require that appellant’s request receive more favorable treatment than it received under Craig.

Because we find neither error nor abuse of discretion in the trial court’s determination that plaintiff is not entitled to receive an award of delay damages, its order will be affirmed.

Order affirmed.

      . An actual verdict of $105,000.00 was reduced to $84,000.00 by the court in accordance with the jury’s finding that plaintiffs causal negligence had contributed to the extent of twenty (20%) percent.