author: MONTGOMERY, Judge:

text:
    496 A.2d 840
    STANDARD PIPELINE COATING CO., INC., Appellee, v. SOLOMON & TESLOVICH, INC., Appellant. STANDARD PIPELINE COATING COMPANY, INC., Appellant, v. SOLOMON & TESLOVICH, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Decided July 26, 1985.

      Dina G. McIntyre, Pittsburgh, for appellant (at 865), for appellee (at 901).
    Daniel M. Berger, Pittsburgh, for appellant (at 901), for appellee (at 865).
    Before CIRILLO, MONTGOMERY and BUCHER, JJ.

       Honorable Wilson Bucher, Senior Judge, of the Court of Common Pleas of Lancaster County, Pennsylvania, is sitting by designation.

   MONTGOMERY, Judge:

These cross-appeals arise from actions by the lower court, which denied a motion for a partial new trial by the verdict winner, and a motion for a new trial and/or a judgment n.o.v. by the party against whom the verdict was issued. On appeal, the verdict winner asserts that the lower court erred in: (1) disallowing a claim based upon previously unrecognized tort grounds; (2) denying a claim for punitive damages; and (3) refusing to mold the verdict to provide pre-judgment interest on the consequential damages awarded by the jury. On its appeal, the verdict loser contends that the trial court committed error by: (1) permitting the Appellant to amend its Complaint to conform to the verdict; (2) finding that there was sufficient proof of a novation, as well as direct damages and consequential damages; and (3) charging the jury on the degree of certainty required to establish a right to consequential damages. We find no merit in any of the claims of error, and affirm the holdings of the trial court on all issues.

We must review the facts in a light most favorable to the verdict winner. See Fannin v. Cratty, 331 Pa.Super. 326, 480 A.2d 1056 (1984). The verdict winner, Standard Pipeline Coating Company [hereinafter “Standard”], the Appellant in No. 901 Pittsburgh, 1983, contracted to clear and coat the interior of a water pipeline that the verdict loser, Solomon & Teslovich, Inc. [hereinafter “Solomon”], the Appellant in No. 865 Pittsburgh, 1983, was constructing for United States Steel. The terms of a contract between Standard and Solomon were set forth in a purchase order dated November 5, 1975. The portions relevant to this appeal provided that Standard would clean and coat approximately 67,000 feet of pipeline at a specific price per linear foot, and that payment would be made in three installments. More specifically, it was agreed that twenty-five (25%) per cent of the contract price would be paid on set-up, another twenty-five (25%) per cent would be paid upon completion of the cleaning of the pipeline, and the balance would be paid upon completion and acceptance of the coating. The purchase order also stated that work was to begin in November, 1975. Consequently, after the agreement was reached between Solomon and Standard, the latter promptly ordered the coating material and otherwise prepared to begin work. Standard’s key employee, Goldworth Davis [hereinafter “Davis”], arrived at the job site on November 15, 1975, but informed by a Solomon representative that the pipeline would not be ready for Standard’s work for another month. Davis, with other Standard personnel, arrived at the work site in December, 1975, with equipment and supplies for the job. However, the pipeline was still not sufficiently ready for Standard to begin its work. Davis ultimately made at least three more trips to the job site before he was able to begin work cleaning the pipeline in early February, 1976.

While the purchase order provided that Standard was to pay for all materials, Standard offered proof at trial that Solomon had agreed to advance the cost of the coating materials. Standard submitted the invoice to Solomon, but it was never paid. Also, after Davis and other Standard personnel arrived at the site in December with equipment and supplies, Standard invoiced Solomon for twenty-five (25%) per cent of the contract price, on the basis that Standard was set up for the work. This invoice was also never paid by Solomon. By the middle of February, 1976, Standard had coated approximately half of the pipeline. Standard submitted another invoice, for further payment, which, like those previously submitted, was never paid.

In March, 1976, U.S. Steel inspected and subsequently rejected the coating that Standard had applied. The evidence at trial indicated that Standard offered to repair the defects when it coated the remaining pipeline. Whether this was agreed to by Solomon and U.S. Steel was unclear. By April, 1976, however, Standard was experiencing cash-flow problems, allegedly because Solomon had not made any payments. Of particular importance, evidence was presented that Standard could not obtain coating materials because of its unpaid bill to the only available supplier of such materials. Thus, Standard could not obtain additional coating materials to perform any other similar jobs.

Mark Shriver [hereinafter “Shriver”], President of Standard, met with Donald Gearhart [hereinafter “Gearhart”], a Vice President of Solomon, on April 22,1976. Although the testimony conflicts as to the exact terms, some agreement was reached in an attempt to alleviate Standard’s financial problems. Shriver testified that Gearhart told him, inter alia, that Solomon would pay the invoice for the coating materials and pay for all work done by May 15, 1976. In exchange, Standard was to relinquish to Solomon the right to finish the remainder of the job. Gearhart asserted that the terms of the agreement were set forth in a letter dated April 23, 1976, which was made an exhibit at trial. Solomon subsequently made only two $5,000.00 payments to Standard. In the meantime, Solomon formed a joint venture with another company to enter the pipeline coating business. The joint venture hired Davis and another Standard employee, and ultimately completed the job. Standard sold its assets at the end of July, 1976, and ceased operations shortly thereafter.

Standard filed a Complaint in assumpsit and trespass on December 22, 1976, alleging that Solomon breached the contract by refusing to make progress payments and by preventing Standard from performing its obligations under the contract. Standard also alleged that Solomon’s breach was “intentional, willful, malicious and done with the intent, purpose and effect of causing harm to the plaintiff.” In this connection, in addition to direct and consequential damages, Standard sought punitive damages.

The trial was bifurcated into liability and damage phases. The jury found that the parties entered into a novation at the April 22, 1976 meeting, and that Solomon breached the novation. After that jury finding was announced, Standard successfully moved to amend its Complaint to conform to the jury’s findings. The jury then awarded Standard $500,-000.00, consisting of both direct and consequential damages, and interest on the direct damages.

No. 901 Pittsburgh, 1983

Appeal of Standard Pipeline Coating Company

Standard first contends on appeal that the lower court committed error in finding that there is no cause of action in tort, arising from Solomon’s alleged conduct of breaching its contract with Standard with the specific intent to drive Standard out of business. We find no Pennsylvania authority that permits a recovery in a tort action on the basis suggested by Standard, where the only alleged tortious act was a breach of contract. Standard concedes that Solomon’s actions did not fall within the parameters of any established tort, but nevertheless, Standard suggests that our Court recognize such a new cause of action in tort. We decline to do so. We believe that existing tort and contract principles afford adequate remedies to address claims such as those asserted by Standard in this case. Because of that conclusion, and because we do not find convincing the arguments offered by Standard in favor of a new tort, we will not create such a new cause of action in this case. We find no error in the lower court’s similar refusal to do so.

Our rejection of the request that we create a new ground for recovery in tort also resolves the second contention of error by Standard. Because there can be no recovery in tort, there can be no punitive damages. It has been held that punitive damages will not be assessed for a mere breach of contractual duties, where no recognized trespass cause of action, pleaded by the plaintiff, arose out of the same transaction. See Daniel Adams Associates, Inc. v. Rimbach Publishing, Inc., 287 Pa.Super. 74, 429 A.2d 726 (1981 . Therefore, we can discern no error in the lower court’s refusal to allow the jurors to consider a claim for punitive damages in the case.

With regard to Standard’s final claim of error, we conclude that the trial court acted properly in refusing to mold the verdict to provide pre-judgment interest on the consequential damages. The Restatement (Second) of Contracts is instructive. In Section 354(2) it provides that prejudgment interest “may be allowed as justice requires on the amount that would have been just compensation had it been paid when performance was due.” Comment d to Section 354 recognizes that interest may be added to consequential damages, but states that because such damages are often difficult to estimate before the trial, the award of interest is to be left to judicial discretion in light of all the circumstances. We find nothing to indicate — nor has Standard argued — that the trial court abused its discretion by refusing to add interest to the consequential damages. Moreover, Standard has not presented any authority suggesting the propriety of such an interest award in Pennsylvania. In such circumstances we conclude that there was no error in the lower court’s ruling denying the prejudgment interest sought by Standard on the consequential damages.

Therefore, we reject the arguments offered by Standard, and affirm the judgment of the lower court.

No. 865 Pittsburgh, 1983

Appeal of Solomon & Teslovich, Inc.

We next turn to the issues raised by Solomon in its appeal. First, Solomon contends that the trial court committed error when it permitted Standard to amend its Complaint to conform to the verdict. The trial judge allowed such an amendment to permit Standard to state a cause of action based upon a breach of an oral novation. Pa.R.C.P. 1033 allows amendments “at any time,” and specifically permits amendments “to conform the pleading to the evidence offered or admitted.” The right to amend should be granted liberally, unless the adverse party is prejudiced. Arzinger v. Baughman, 348 Pa. 84, 34 A.2d 64 (1943). Prejudice must be “... something more than a detriment to the other party, ‘since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party’.” Sands v. Forrest, 290 Pa.Super. 48, 53, 434 A.2d 122, 125 (1981), quoting Cellutron Products Corp. v. Stewart, 223 Pa.Super. 391, 394, 300 A.2d 900, 901-02 (1972). In the instant case, Solomon was the party which first raised the issue of novation. In addition, Solomon, as well as Standard, produced testimony regarding a meeting of April 22, 1976, at which the purported oral novation occurred. Solomon was therefore obviously not surprised that the existence of a novation would be at issue in the case, and was prepared to present, and in fact presented its proof in support of its position regarding that novation. Thus, it does not appear that Solomon could be held to have been prejudiced by the amendment in a manner which would make the allowance of the amendment reversible error in the case. Therefore, we reject Solomon’s initial claim of error.

Solomon also urges that the amendment permitted by the lower court should not have been permitted because of the bar of a statute of limitations. This defense was not raised during the course of the trial in response to the motion to amend, nor in Solomon’s post-trial motions for new trial or judgment n.o.v. The first time it was mentioned was in Solomon’s brief in support of such post-trial motions. In these circumstances, it must be held that the statute of limitations argument has not been properly preserved for appellate review. See Turnway Corporation v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975); Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974). It should be noted that the statute of limitations does not divest the court of jurisdiction, but is only a procedural bar to recovery which may be waived by explicit consent or by conduct. Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969).

We next address the claim by Solomon that Standard failed to produce evidence of the breach of the novation and the resultant direct damages. We cannot agree. Both parties offered significant testimony about the meeting of April 22, 1976, the existence of a novation, and facts relating to the issue of direct damages. The jury gave greater weight to the testimony of Standard’s witnesses. A verdict based on substantial, albeit conflicting evidence, is conclusive on appeal. It is not our role, as an appellate court, to pass upon the credibility of witnesses or to act as the trier of fact; we will not substitute our judgment for that of the fact-finding jury. Burbage v. Boiler Engineering and Supply Co., Inc., 433 Pa. 319, 249 A.2d 563 (1969).

For similar reasons, we find no merit in the argument that the lower court erred in refusing to direct a verdict in Solomon’s favor on the question of consequential damages. There was substantial evidence presented which indicated that Standard would have survived as an entity but for Solomon’s breach of the novation. In that regard, we note that Mr. Shriver, the President of Standard, testified that he entered into the novation to try to ensure Standard’s continued viability. Standard’s lack of survival was clearly of great significance in the jury’s award of consequential damages. Therefore, the lower court obviously acted correctly in declining Solomon’s request for a directed verdict on the point.

After careful review, we also reject Solomon’s contention that the testimony of Standard’s expert witness, Dr. Merril J. Foote, was grossly speculative, lacked any reasonable factual basis, and failed to establish consequential damages. Dr. Foote testified regarding Standard’s past financial condition, the operation and management of the business and the market for Standard’s services. He also offered projections of future sales, which he then reduced to present value. Further, he discussed his calculation of the value of Standard. Based upon his qualifications and background, we cannot hold that Dr. Foote lacked the requisite expertise to offer opinions for the jury’s consideration concerning these matters. Moreover, we do not find that his testimony could be regarded as highly speculative. It had a clear factual basis and adequately supported the jury’s award of consequential damages. While it may be impossible to predict future business performance with total accuracy in a case such as this, an expert appraisal of probabilities is permissible testimony. The jury has discretion as to the weight such testimony is to be given. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 242 A.2d 231 (1968). We must reject Solomon’s arguments regarding Dr. Foote’s testimony.

Finally, we review Solomon’s contention that the trial court erred in charging the jury that a lesser degree of certainty was required in proving damages if it would be determined that Solomon willfully breached the novation. The court’s charge in that regard was not inconsistent with the well-established principle that mere uncertainty as to the amount of damages will not bar a recovery where it is clear that damages were the certain result of the defendant’s conduct. See Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897, (1979). As the jury was appropriately charged, damages do not have to be determined with mathematical precision, but only a reasonable degree of certainty. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). Solomon, in support of this argument, cites Mellon Bank, N.A. v. Aetna Business Credit Inc., 500 F.Supp. 1312. (W.D.Pa.1980). However, we find that case to be inapposite for precedent here. Solomon relies upon a quotation from that case which includes the declaration that “... the motive for breaching the contract is not important____” Id, 500 F.Supp. at 1321. That quotation has been taken out of context. In that case the United States District Court was not dealing with an issue of the certainty of damages, but with a request for punitive damages in a breach of contract case. Properly read, that case is consistent with the law in Pennsylvania regarding punitive damages in a contract action, and harmonious with our disposition of Standard’s punitive damage claim in the instant case. It provides no support for the argument offered by Solomon regarding the court’s charge on the degree of certainty required for establishing damages. Thus, we reject Solomon’s final claim of error.

The order of the lower court is affirmed.

      . Solomon, the general contractor on the job, was in the earthmoving, trucking, and coal business. Another subcontractor, Davis Industries, actually erected the pipeline.

      . The new tort theory proposed by Standard is easily differentiated from the established cause of action for intentional interference with the performance of a contract. The latter occurs when one intentionally interferes with the performance of a contract (other than a marriage contract) between another and a third party by inducing or otherwise causing the third party not to perform the contract. Restatement (Second) of Torts, Section 766 [Although this Section has not been formally adopted in our Commonwealth, our courts have cited it with approval. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979).] In the instant case, no third party was involved. .

      . For reasons enunciated in further discussions of this issue, which provide independent grounds for denying Standard’s claim for interest on the consequential damages, we do not find it necessary to decide whether Restatement (Second) of Contracts Section 354 should be adopted into the law of our Commonwealth. However, it does provide some guidance which is worthy of consideration in this case.

      . Dr. Foote was identified as an economist, business consultant, teacher, researcher and a member of Standard’s Board of Directors.


source: Caselaw Access Project

author: SPAETH, President Judge: SHOYER, Judge,

license: Public Domain

text:
    496 A.2d 1156
    COMMONWEALTH of Pennsylvania v. Edward SPENCER, Appellant. COMMONWEALTH of Pennsylvania v. Edward SPENCER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed Aug. 2, 1985.

      Leonard Tishgart, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and JOHNSON and SHOYER, JJ.

       Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   SPAETH, President Judge:

This case arises on two appeals. The first appeal, No. 3348 Philadelphia 1983, is an appeal from judgment of sentence imposed after appellant pleaded guilty to charges of robbery, burglary, conspiracy, and possession of an instrument of crime. Appellant argues that in imposing sentence of 35 to 70 years in prison, the sentencing judge abused his discretion. We agree, and vacate the judgment of sentence and remand for resentencing before a different judge. The second appeal, No. 211 Philadelphia 1984, is an appeal from the trial court’s order denying appellant’s motion to withdraw his guilty plea. We must quash this appeal.

-l-

We shall start by considering Appeal No. 211 Philadelphia 1984 — the appeal from the trial court’s order denying appellant’s motion to withdraw his guilty plea. For if we were to conclude that the motion should have been granted, we should not reach the issue raised by Appeal No. 3348 Philadelphia 1983 — whether in imposing sentence on the plea, the sentencing judge abused his discretion.

In support of Appeal No. 211, appellant particularly relies upon our decision in Commonwealth v. Williams, 333 Pa. Super. 77, 481 A.2d 1230 (1984), which he argues is controlling. In Williams the assistant district attorney promised, as part of a plea agreement, not to make any sentencing recommendation, but then, at the sentencing proceeding, “pure and simple, he broke his word,” id., 333 Pa.Superior Ct. at 81, 481 A.2d 1232, and recommended a sentence of incarceration. The sentencing judge imposed a sentence of incarceration, stating in his opinion, however, that the assistant district attorney’s recommendation had not influenced his decision. Id., 333 Pa.Superior Ct. at 83, 481 A.2d at 1234. We accepted this statement, id., but held that even so, the only appropriate remedy for the assistant district attorney’s violation of the plea agreement was to permit the defendant to withdraw his plea. We noted that as part of the plea agreement certain charges had been nol prossed, and directed that on remand those charges should be reinstated so that the defendant could “plead anew to all the original charges.” Id.

In arguing Williams to us as controlling, appellant emphasizes the similarity in the facts of Williams and this case. The assistant district attorney in Williams was the same assistant district attorney who appeared at the sentencing proceeding in this case, and the sentencing judge was also the same. At the sentencing proceeding in this case the assistant district attorney “recommend[ed] a period of incarceration of no less than 35 to 70 years in jail.” N.T. 11/17/83, at 17. Appellant’s counsel protested that “the notes of the [guilty plea] hearing before Your Honor re-fleets [sic] the fact that it was agreed that the Commonwealth would not make any specific recommendation as to any possible sentence.” Id., at 18. To this, the assistant district attorney replied: “Your Honor, I have reviewed the notes of testimony in court this morning, and at no place in the notes of testimony that I can find does it indicate that the Commonwealth will not make a recommendation.” Id. In fact, a review of the notes of testimony of the guilty plea proceeding discloses that when appellant entered his plea, the assistant district attorney then representing the Commonwealth — a different assistant district attorney from the one who appeared at sentencing — had asked appellant, “Do you understand there will be no specific recommendations as to any sentence in this case by the Commonwealth; do you understand that?”, to which had appellant replied, “Yes.” N.T. 12/3/81, at 24. The sentencing judge stated: “I don’t remember whether Mr. McGovern [the assistant district attorney who had appeared at the guilty plea proceeding] said he was going to recommend any specific sentence. I don’t believe he did. And I think defense counsel may be right that the recommendation would be that the sentence would be left up to me.” N.T. 11/17/83, at 19-20. The judge added: “In any event, counsel for both the Commonwealth and most defense counsel in this City know I don’t pay any attention to the Commonwealth’s recommendation at any time for any reason. It is my job to do the sentencing, not [District Attorney Edward G.] Rendell’s.” Id., at 20. The judge then imposed sentence total-ling 35 to 70 years in prison, to be served consecutive to a sentence of 10 to 20 years that appellant was serving for homicide. Id., at 28-32. In his opinion in response to appellant’s appeal, the judge noted appellant’s argument that in recommending a sentence, the assistant district attorney had violated the plea agreement. Slip op. of tr. ct. at 6. Rejecting this argument, the judge stated that “[t]he sentence imposed was that determined solely by this Court.” Id. at 7.

The Commonwealth acknowledges that Williams is similar to this case. It argues, however, that Williams was wrongly decided; in its view, the remedy ordered in Williams — permitting the guilty plea to be withdrawn — was not appropriate. It argues, therefore, that we certify this case for argument before the court en banc so that Williams may be reconsidered.

We have concluded that we may not consider either appellant’s argument that Williams is controlling, or the Commonwealth’s argument that Williams was wrongly decided. The reason for this conclusion, as will appear, is that in Williams the issue of the effect of the assistant district attorney’s conduct was preserved for appellate review, while here it has not been preserved.

As our citations to the notes of testimony have indicated, the guilty plea proceeding was conducted on December 3, 1981, and the sentencing proceeding, on November 17, 1983. On November 25, 1983, appellant filed a timely motion to modify sentence, Pa.R.Crim.P. 1410 (motion to modify sentence shall be filed with sentencing court within 10 days of sentence), which the trial court denied on November 28, 1983. On November 30, 1983, appellant filed a supplemental motion to modify sentence. In response, the trial court signed a rule to show cause why appellant’s sentence should not be vacated, and made the rule returnable on January 4, 1984. Attached to the rule to show cause was an order vacating the judgment of sentence; however, the order was not signed by the trial court.

On December 14, 1983, appellant filed an appeal from the judgment of sentence. This was Appeal No. 3384 Philadelphia 1983.

On January 4, 1984, the return date of the rule issued on November 30, 1983, the trial court heard appellant’s motion to modify sentence. At the start of the hearing, appellant’s counsel handed to the court “a motion to withdraw the guilty plea nunc pro tunc.” N.T. 1/4/84, at 2. The motion was apparently not filed with the clerk, and it is not contained in the record transmitted to us. The court accepted the motion, however, and directed appellant to “[proceed.” Id. In the course, and at the conclusion, of the hearing, the court denied both the motion to withdraw the guilty plea, id., at 13, and the motion to modify the sentence, id., at 33. The court then “reimposed” the sentence that had been imposed on November 17, 1983. Id. When the assistant district attorney inquired whether sentence had ever been vacated, the court answered: “I think it was. I know there was the Rule to Show Cause and there was an Order to Vacate. I think I signed the original.” Id.

On January 18, 1984, appellant appealed from the trial court’s order denying his motion to withdraw his guilty plea. This was the appeal we are now considering — Appeal No. 211 Philadelphia 1984.

If appellant wished to challenge the validity of his guilty plea, he was obliged to file a motion to withdraw the plea within ten days of the sentence. Pa.R.Crim.P. 321. Appellant filed no such motion. Accordingly, he has failed to preserve the argument he now makes to us, i.e., that he should have been permitted to withdraw the plea because the assistant district attorney violated the plea agreement. Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). See also Commonwealth v. Smith, 322 Pa.Super. 504, 469 A.2d 1104 (1983) (failure to file motion within 10 days of sentence constituted waiver of defendant’s right to challenge any defects in the guilty plea colloquy); Commonwealth v. Green, 312 Pa.Super. 265, 458 A.2d 951 (1983) (failure to timely file petition to withdraw guilty plea resulted in waiver of right to challenge validity of plea on direct appeal).

We have not overlooked the fact that on January 4, 1984, at the hearing on appellant’s motion to modify sentence, the trial court permitted appellant to file a motion to withdraw the guilty plea nunc pro tunc. We pass by the issue whether we may recognize the motion as in fact filed, given that it was only handed to the court and not filed with the clerk. Commonwealth v. Nixon, 311 Pa.Super. 450, 457 A.2d 972 (1983) (leaving motions in judge’s chambers or even handing a copy to the judge in the courtroom does not constitute filing; document must be filed in office of clerk of courts). Assuming that the motion was filed, still, it had no force. When, on December 14, 1983, appellant appealed the judgment of sentence of November 17, 1983, the trial court lost its jurisdiction to proceed further regarding the judgment, Pa.R.A.P. 1701(a), except that the court could on timely motion for reconsideration vacate the sentence within thirty days of its imposition, Pa.R.A.P. 1701(b)(3). The court, however, did not vacate the judgment of sentence; although an order to vacate was attached to the rule to show cause, which was issued on November 30, 1983, the court never signed the order. The court therefore lost its jurisdiction, with the result that its acceptance, on January 4, 1984, of appellant’s motion to withdraw his guilty plea nunc pro tune, and its subsequent denial of the motion, were both nullities. Cf Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984) (trial court lost jurisdiction to modify sentence where appeal taken and sentence not vacated within 30 days); Commonwealth v. Green, supra (trial court properly ruled it was without jurisdiction to consider motion to withdraw guilty plea filed three months after sentence and two months after appeal taken). Appellant’s appeal from the order denying his motion was therefore equally a nullity, and accordingly, the appeal must be quashed.

-2-

On Appeal No. 3348 Philadelphia 1983, appellant argues that in imposing consecutive sentences totalling 35 to 70 years in prison, the sentencing judge abused his discretion. This issue has been preserved for our review. As we have already noted, the sentence was imposed on November 17, 1983; the motion for reconsideration was timely filed, on November 25; the motion was denied on November 28; and this appeal from the judgment of sentence was timely filed, on December 17,1983. These events were in no way affected by the action of the trial court in subsequently “reimposing” the judgment of sentence, on January 4,1984, for as we have discussed, by then the court had lost its jurisdiction to proceed further regarding the judgment.

-a-

The charges to which appellant pleaded guilty arose from two incidents. The evidence regarding these incidents, as summarized by the assistant district attorney at the guilty plea proceeding, was to the following effect.

One incident occurred on January 5, 1981. Two sisters, Rosemary McNally, aged eight-two, and Frances McNally, aged seventy-nine, were in their home at 5800 Greene Street, Philadelphia. With them was Sarah Kelly, aged seventy-seven, who was a nurse attending Frances McNally, and Roberta O’Donnell, aged seventy-five. N.T. 12/3/81, at 35. When Sarah Kelly went to the kitchen, she found appellant and one Robert Green there. Appellant and Green sprayed the women’s faces with mace, and tied them up in chairs. Frances McNally begged not to be tied up “because she had just had a stroke and because she was a bleeder. And they made a remark that sounded like go ahead and bleed.” Id., at 38. Rosemary McNally was bruised on her ankles and wrists, and Frances McNally was badly bruised on her legs. Id., at 38-39. After tying the women up, and gagging them, except for Roberta O’Donnell, appellant and Green took the women’s watches and Sarah Kelly’s diamond earrings. They then ransacked the house, and left with the Sterling silverware. Id., at 31-39.

The other incident occurred on January 29, 1981. Alice Martindell, aged sixty-five, was home with her husband, George, at 424 E. Chelten Avenue, Philadelphia. N.T. 12/3/81, at 27. When they answered the door, appellant and Robert Green sprayed mace in their eyes, rushed in, tied them up with lamp cords, taped their mouths and blindfolded them. Id., at 27-28. They then ransacked the house, upstairs and downstairs, and left, taking some $800 in cash, Mrs. Martindell’s jewelry, worth some $2,000, and Mr. Martindell’s watch. Id., at 28, 34-35. During the incident, Mr. Martindell was kicked in the groin, and after-wards, he and Mrs. Martindell were taken to the hospital and released. Id., at 28-29.

After the Commonwealth’s summary of the evidence, the trial court asked appellant’s counsel whether he “wish[ed] to contest any of the facts offered by the Commonwealth to make out the charges,” and counsel replied that he did not. N.T. 12/3/81, at 43.

-b-

As we have indicated, appellant’s guilty plea was entered in accordance with a plea agreement. This agreement was stated during the guilty plea hearing and in the plea colloquy, the completeness of which is not questioned by appellant.

Appellant agreed to plead guilty to five bills arising out of the burglary of the McNally home, and to three bills arising out of the burglary of the Martindell home: Bill 1344 (robbery of Sarah Kelly); Bill 1345 (criminal conspiracy); Bill 1346 (possession of an instrument of crime generally); Bill 1356 (burglary, and related charges); and Bill 1357 (robbery of Rosemary McNally) (these bills were all as of the March Term 1981); Bill 1472 (robbery of Mrs. Martin-dell); Bill 1473 (burglary, and related charges); and Bill 1478 (robbery of Mr. Martindell) (these bills were all as of the April Term 1981). N.T. 12/3/81, at 2-3, 11-13. Appellant also agreed to testify against Robert Green. Id., at 14. Green was an adult; appellant was a juvenile who had been certified to be tried as an adult. Id., at 25-26. Green and appellant were codefendants on the charges arising out of the McNally and Martindell burglaries, and also, on a charge of homicide. Id., at 25; and see N.T. 11/17/83, at 2-5. Appellant had already been sentenced on the homicide charge to ten to twenty years in prison. N.T. 12/3/81, at 19.

On its part, the Commonwealth agreed that at the sentencing hearing, it would advise the sentencing judge whether appellant had testified against Green, id.; would recommend that the sentences imposed on the Martindell bills be concurrent with the sentences imposed on the McNally bills, but otherwise would “[make] no specific recommendations as to any sentence,” id., at 3-4, 24; and would move to nol pros the remaining charges, id., at 4. These remaining charges arose out of the McNally burglary, and were stated in two bills charging burglary, one bill charging robbery, and fifteen other bills, charging, variously, criminal trespass and defiant trespass, criminal conspiracy, simple and aggravated assault, and recklessly endangering a person and terroristic threats.

Finally, it should be noted regarding the plea agreement that appellant was advised of the permissible range of the sentences that could be imposed on the bills to which he was pleading guilty, and acknowledged that the trial court could impose those sentences to be served consecutively to each other, and also, to the sentence he had received on the homicide charge. N.T. 12/3/81, at 11-13, 18-19.

-c-

At the sentencing hearing, counsel for appellant argued for sentences to be served concurrently with the sentence of 10 to 20 years that appellant was then serving for homicide.

Counsel first emphasized appellant’s cooperation with the law enforcement authorities. After noting appellant’s pleas before the sentencing judge, counsel noted that appellant had also pleaded guilty, before another judge, to homicide of the third degree and robbery, and had received concurrent sentences of 10 to 20 years in prison. N.T. 11/17/83, at 2-3. Counsel advised the sentencing judge that, as promised at the guilty plea proceeding, appellant had testified against Robert Green on the homieide charge, and that as a result, Green had been found guilty of homicide of the second degree, and other charges, and had received a life sentence. Id., at 22. Counsel stated, moreover, that Green had pleaded guilty to the homicide but had “then retracted his guilty plea knowing the only testimony that there was or the only evidence against him would be [appellant’s] testimony,” id., at 5, and that despite threats to his life “by people close to” Green, appellant had testified, id., at 6. Counsel also stated that appellant had testified against Green in the McNally and Martindell cases, id., at 22, but he did not state, and the record does not disclose, the outcome of those cases.

Counsel next argued appellant’s individual characteristics. He stated that when two months old, appellant had been abandoned by his natural parents and had been raised by one Kathie Gillette as “his natural guardian.” Id., at 6-7. Counsel suggested that for lack of a “father figure,” appellant, who was 16 years old at the time of the McNally and Martindell incidents, had come under the bad influence of, and “was easily led” by, Green. Id., at 6-8. Referring to the pre-sentence and psychiatric reports, counsel noted that appellant suffered from a speech impediment, had attended “therapy” and retarded-educable classes, and in 1980 could read only at the fifth grade level. Id., at 7-8. Counsel stated that the investigator from the Probation Department — who was not present at the hearing — had stated that “he would not recommend any additional time \i.e., additional to the sentence appellant had received for homicide].” Id., at 8. Counsel concluded by requesting that “any time [imposed] run concurrently with the time” appellant was then serving. Id., at 11.

The assistant district attorney confirmed that appellant “did in fact cooperate with the District Attorney’s Office by way of offering testimony against Mr. Green, the codefendant in the case.” Id., at 12. The assistant district attorney then argued that this case was “the classic example of a juvenile career criminal gone wild.” Id. He noted that appellant had been first arrested at age 13. He added that these arrests had not resulted in adjudications, but noted that at ages 15 and 16 appellant had been adjudicated on four occasions, once for theft, twice for burglary, and once for attempted burglary. Id., at 12-13. The assistant district attorney stated that appellant had “violated each probation he was put on” and “had infractions at all of the correctional schools, the delinquency schools that he was sent to as a juvenile.” Id. He then discussed the facts underlying the several charges, concluding with the statement that “[t]his is a prime example of a case where the Commonwealth feels that the absolute maximum sentence in this case should be applied. The Commonwealth would recommend a period of incarceration of no less than 35 to 70 years in jail. If you add the PIC [possession of an instrument of crime] conspiracy, which is an inchoate crime, it would be 37V2 to 75.” Id., at 17.

After some argument regarding the propriety of the assistant district attorney recommending a sentence — which we have referred to in the preceding portion of this opinion — the sentencing judge asked whether appellant had anything to say. Id., at 20. Appellant briefly stated that he was sorry for what he had done, and that he was trying to get the equivalent of a high school diploma while at Camp Hill. Id., at 20-21.

The sentencing judge then proceeded to the imposition of sentence. He opened by stating that he had reviewed the presentence report and mental evaluation of appellant, and had taken into consideration the statements by appellant’s counsel and the assistant district attorney. The judge then said:

I might add for the record that this case probably troubled me more than any other case that I have seen in my six years on the bench, and I have been in effect waiting for this day.
Id., at 21-22.

After inquiring about and being advised of the life sentence imposed on Green, the sentencing judge recited the components that must be considered in determining sentence: “the protection of society, the gravity of the offense, and the rehabilitative needs of the defendant.” Id., at 23. And see 42 Pa.C.S. § 9721(b). Next the judge identified the factors weighing in favor of probation, see 42 Pa.C.S. § 9722, and in succession, rejected each as inapplicable to appellant. Id., at 23-27. The judge then stated:

Defense counsel has presented what he thinks I should do in this particular case. But after reviewing in detail the facts concerning this crime, once again stating that it is one of the most despicable crimes I have seen in six years on the bench, I feel that the defendant as a result of his activity has forfeited his right to exist in this community, on the street at least, and that the elderly of this City must be protected from animals such as this. And I shouldn’t use the term “animals” because, as I have said, it denigrates the animal kingdom when referring to people like this.
If there was ever a case where the death penalty should be imposed, I would gladly pull the switch on you, Chief. I can’t think of anything worse that you could do to human beings than what you did to these elderly people. And you consistently did it. You went back and went back. It wasn’t an isolated instance. You took advantage of people on their death beds. I think the youngest victim was 79. The oldest was 89, who subsequently died as a result of your activity. But that’s not the case before me. That’s just another one of your little asides.
Elderly people in this City must be protected from animals like you. When you get out of prison, you are going to be part of that elderly, I hope anyhow.
Id., at 27-28.

Following this statement, the sentencing judge imposed consecutive sentences on the McNally bills, totalling 35 to 70 years; on one Martindell bill, he suspended sentence; on the other two, he imposed sentences of 10 to 20 years, to be served concurrently with the sentences imposed on the McNally bills. Id., at 28-30. Appellant’s counsel reviewed the sentences, id., at 30-32, after which appellant was advised of his appellate rights, id., at 32-35. The proceeding then concluded:

MR. KOLANSKY [the assistant district attorney]: Do you understand everything I have said?
THE DEFENDANT: Yeah.
MR. KOLANSKY: Do you have any questions.
THE DEFENDANT: Are you sure you got the right case?
THE COURT: Yes, I’ve got the right case, you. It’s about time you juveniles find out this courtroom isn’t Boys’ Town and I am not Pat O’Brien. You want to play in the big leagues, Punk, you pay the price. Get him out of here.
MR. KOLANSKY: Move to nol-pros all remaining Bills. THE COURT: So moved.
Id., at 35-36.

-d-

The imposition of sentence is within the sound discretion of the sentencing judge. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984). The judge’s “determination must not be disturbed absent a manifest abuse of discretion.” Commonwealth v. Edrington, 490 Pa. 251, 255, 416 A.2d 455, 457 (1980). An “abuse of discretion,” for sentencing as for other purposes, is defined as

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 illwill, as shown by the evidence or the record, discretion is abused. Commonwealth v. Jackson, supra, 336 Pa.Super. at 627, 486 A.2d at 441 (quoting prior cases).

This definition is consistent, and may be compared, with the Code of Judicial Conduct, which provides:

A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 2(A).
A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party,
Canon 3(C)(1).

In the present case the record demonstrates that the sentence was the result of the sentencing judge’s personal prejudice, bias, and ill-will towards appellant. Accordingly, the judge abused his discretion, and the sentence must be vacated.

The sentencing judge indicated his attitude towards appellant from the outset: “I have been in effect waiting for this day.” N.T. 11/17/83, at 22. Although the judge inquired regarding the sentence imposed on Robert Green, he at no point acknowledged that appellant had by pleading guilty accepted responsibility for his part in the crimes committed in the McNally and Martindell incidents, and had by his testimony enabled the Commonwealth to bring Green to justice. Nor did the judge acknowledge any difference between appellant as a sixteen year old boy and Green as an adult. To the contrary, the judge was apparently of the view that appellant was at least as culpable, if not more culpable, than Green. The judge knew that Green had received a life sentence for the death of one of the victims in the McNally incident. Id., at 28. Yet he advised appellant that “[i]f there was ever a case where the death penalty should be imposed, I would gladly pull the switch on you, Chief.” Id., at 27.

The sentencing judge’s reference to appellant as “Chief” was not the only indication of the judge’s attitude. At the end of the sentencing proceeding, he told appellant, “You want to play in the big leagues, Punk, you pay the price.” Id., at 36. Most revealing* however, were the judge’s repeated references to appellant as an “animal.” The first reference was: “[T]he elderly of this City must be protected from animals such as this. And I shouldn’t use the term ‘animals’ because, as I have said [the record does not disclose when this prior statement was made], it denigrates the animal kingdom when referring to people like this.” Id., at 27. A moment later the judge repeated the reference, stating to appellant: “Elderly people must be protected from animals like you. When you get out of prison, you are going to be part of that elderly, I hope anyhow.” Id., at 28.

Without question, appellant’s crimes were major crimes: they were greedy — property of considerable value was taken; they were inflicted on elderly, helpless people; and they were inflicted wantonly, with no thought of, or with indifference to, the possible consequences of spraying mace in the victims’ eyes and tying them up. Equally without question, appellant’s crimes required that he be imprisoned, and for a substantial period, not only because of the injuries he had done, but to prevent him from injuring more people. But appellant was not an animal. He was a sixteen year old boy — a boy, moreover, who had grown up without parents, ignorant, and deprived of the blessings that so many of us have enjoyed, not because we deserve them but because we have been lucky.

In regarding appellant, and in addressing him, as an animal, the sentencing judge violated the most fundamental premise of our law — that all persons are to be treated equally. That does not mean that some persons will not be punished for having violated the law. As Professor Berman has written, in describing the formation of our legal tradition:

The Western law of crimes emerged from a belief that justice in and of itself, justice an sich, requires that a violation of law be paid for by a penalty, and that the penalty should be appropriate to the violation. The system of various prices to be paid for various violations— which exists in all societies — was thought to justify itself; it was justice — it was the very justice of God. This idea was reflected not only in criminal law but in all branches of the new canon law from the twelfth century on, and it was reflected more and more in the various branches of the new secular legal systems that began to develop contemporaneously. Contracts, it was said, must be legal, and if they were not, a price must be paid for their breach. Torts must be remedied by damages equivalent to the injury. Property rights must be restored by those who have violated them.
H. Berman, Law & Revolution: The Formation of the Western Legal Tradition 194 (1983).

But no one is punished as an animal is punished. The law treats all persons as morally equally — not as equally good, but as equally responsible for their wrongs. Nor is this principle distinctive to the law. It is also embodied in the injunction, “He that is without sin among you, let him cast a stone at her.” John 8:7. None of us is without sin; and all of us may atone for our sin.

-e-

Not only must the judgment of sentence be vacated, but the resentencing must be by a different judge. In Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983), resentencing before a different judge was ordered when the sentencing judge could not admit or deny the remark that “[w]e want to get people like him [the defendant] out of Potter County.” The order was required to assure determination of sentence “without a hint of animosity toward [the defendant].” Id., 501 Pa. at 24, 459 A.2d at 732. And in Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980), resentencing before a different judge was ordered where the sentencing judge had admitted bias and referred to the defendant as “scum.” See also Commonwealth v. Sypin, 341 Pa.Super. 506, 491 A.2d 1371 (1985) (remanded for resentencing before different judge where sentencing judge’s statements revealed consideration of uncharged crimes, raising reasonable question about judge’s impartiality); Commonwealth v. Bryant, 328 Pa.Super. 1, 476 A.2d 422 (1984) (remanded for resentencing before different judge where sentencing judge’s in camera remarks in prior case showed predetermination to impose maximum sentence); Commonwealth v. Schwartz, 267 Pa.Super. 170, 406 A.2d 573 (1979) (remanded for resentencing with order that resentencing before different judge should be considered if judge had seen television show about defendant; if judge did see show, must place on record why his impartiality could not reasonably be called into question).

On Appeal No. 3348 Philadelphia 1983: the judgment of sentence is vacated and the case is remanded for resentencing before a different judge. Jurisdiction is relinquished.

On Appeal No. 211 Philadelphia 1984: the appeal is quashed.

SHOYER, J., files a concurring opinion.

SHOYER, Judge,

concurring:

I concur in the result.

This case must go back for resentencing because the Office of the District Attorney broke its commitment not to recommend specifically as to term of sentence. At the time of sentence, in violation of its commitment, the assistant district attorney specifically requested 35 to 70 years, which was the exact sentence subsequently imposed by the court.

Because of the bias and ill will shown by the sentencing judge, the remand must also go to another judge. To address the defendant as “Punk”, to call him an “animal”, and to observe “If there ever was a case where the death penalty should be imposed, I would gladly pull the switch on you, Chief” is to speak to defendant in a language which he undoubtedly understands. It is the language of the cold, cruel world in which he has unfortunately lived for 16 years, but when used by the Judiciary, it is degrading and entirely unnecessary. The sentencing judge should appear as the fountainhead of justice, not the spirit of revenge. Let the severity of the sentence speak for itself. No cacophany of phrases is needed.

      . This is the date from the notes of testimony; the copy of the docket entries certified to us gives the date as January 5, 1984.

      . The record discloses that the homicide charge arose out of the death of one of the persons robbed in the McNally home. See N.T. 11/17/83, at 28.

      . Despite the assistant district attorney’s assertions, appellant could not have been sentenced for both conspiracy and possessing instruments of a crime. 18 Pa.C.S. § 906. See Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982); Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980).


author: WICKERSHAM, Judge: CAVANAUGH, Judge,

text:
    496 A.2d 1166
    Frank R. HEDDINGS and Sandra J. Heddings v. John STEELE and Edith Steele and Mack Gatz. Appeal of John STEELE and Edith Steele. Frank R. HEDDINGS and Sandra J. Heddings v. John STEELE and Edith Steele and Mack Gatz. Appeal of John and Edith STEELE, Guardian Heidi and Jason Gatz, Betty and Joseph Gatz.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed Aug. 2, 1985.

      Gary T. Harris, Williamsport, for appellants.
    Richard A. Vanderlin, Assistant District Attorney, Williamsport, for appellees.

      Before CAVANAUGH, WICKERSHAM and ANDERSON, JJ.

       Judge Levy Anderson, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania is sitting by designation.

   WICKERSHAM, Judge:

John and Edith Steele appeal from the orders of the Court of Common Pleas of Lycoming County denying them primary custody of their grandchildren, Heidi and Jason Gatz, presently ages ten and five, respectively.

Once again, this court is called upon to assume the unenviable role of King Solomon and render judgment as to the proper custodians of two small children. We must choose from among maternal and paternal relatives warring over the future custody of the children. This sad and troublesome task is made even more difficult because of the unique facts of this custody/adoption case, which has a long and confusing history. At various times throughout the litigation at least five sets of contestants have sought custody of Heidi and Jason. All the participants in this case are related to the children, being either grandparents or aunts and uncles.

Heidi Gatz was born to Janet Steele on December 9, 1974. In March 1979, Janet Steele married Heidi’s father, Mack Gatz, and on December 11, 1979, Jason Gatz was born. On October 12, 1982, Janet Steele Gatz died as a result of multiple stab wounds inflicted by her husband, Mack. Mack Gatz pleaded guilty to Janet’s murder and is presently serving a sentence of incarceration. Heidi witnessed the death of her mother and both children have undergone, and presumably continue to undergo, psychiatric counselling and therapy.

After their mother’s death and their father’s arrest, Heidi and Jason were taken to the home of Janet’s parents, John and Edith Steele, appellants herein. Thereafter, custody petitions were filed by various members of the maternal and paternal families. By the time of the first hearing in March 1983, however, the litigants had been narrowed to Frank and Sandra Heddings, Mack’s sister and brother-in-law, and John and Edith Steele, Janet’s parents. A hearing was held on the matter over several days in March and April 1983. On May 12, 1983, the lower court issued its opinion and order awarding primary custody of Heidi and Jason to the Heddings. The Steeles mistakenly filed exceptions to the order, which were denied on June 16,1983. Our court granted appellants’ petition to appeal nunc pro tunc and the first of the two instant appeals, at No. 1659 Philadelphia 1983, was filed.

Following the May 1983 order, the children went to live with their paternal aunt and uncle, the Heddings. This arrangement proved unsuccessful, however, and on September 28, 1983, a motion to change custody from the Heddings to appellants was filed by appellants. At the November 7, 1983 hearing, the paternal grandparents, Joseph and Betty Gatz, appeared and expressed interest in obtaining custody of the children. The lower court advised them that if they wished to intervene in the proceedings, they should file an appropriate petition within thirty days. On December 14, 1983, the Gatzes filed an adoption petition, to which was attached the children’s father’s consent. Appellants subsequently filed a motion to quash the adoption petition and the court held a hearing on the question of custody and/or adoption on April 4-5, 1984. The court advised the parties that if the petition for adoption were denied, he would then treat the Gatzes’ pleading as though it were a petition for custody. The court also granted the parties’ motions that it consider all of the evidence presented at the prior custody proceedings in May 1983, as well as its findings of fact in that case. On May 24, 1984, the lower court issued its second opinion and order denying the Gatzes’ petition for adoption, but awarding primary custody of the children to Joseph and Betty Gatz, with visitation to the Steeles. The Steeles timely appealed the order of May 24, 1984, which appeal is docketed at No. 1780 Philadelphia 1984. Upon request, the two appeals were consolidated for determination by this court.

Appellants raise the following issues before us:

1. Did the trial court err in admitting hearsay testimony concerning alleged sexual improprieties between one of the litigants, John Steele and the deceased parent (Janet Steele Gatz), mother of the two children involved in this custody proceeding?
2. Did the trial court err in basing certain of its factual findings upon hearsay testimony?
3. Did the trial court err in making various factual findings which have no evidentiary basis in the proceedings or record?
4. Did the trial court err in permitting procedural irregularities?
5. Did the trial court err in failing to provide any analysis of the record?
6. Did the trial court err in permitting the allegations of incest to so permeate and influence the proceedings, and the Court’s thinking as to shift the intended emphasis of the proceedings from the “best interests of the children” to a trial on whether there had been an incestuous relationship between the childrens’ deceased mother and her father?

Brief for Appellants at 3. We will begin with the procedural issues.

Appellants correctly note that there were a number of procedural irregularities surrounding the involvement of Joseph and Betty Gatz (the Gatzes) in the “second” phase of this custody case. In particular, (1) the lower court failed to give proper notice to the Gatzes as required by Pa.R.C.P. Nos. 1915.6(b) and 1915.16(b); (2) the Gatzes failed to intervene within thirty days as required by the court’s order and failed to file a counterclaim asserting their right to custody as required by Pa.R.C.P. No. 1915.5(b); (3) the lower court treated the Gatzes’ motion for adoption as a motion for custody; and (4) appellants’ motion to quash the Gatzes’ adoption petition was never formally ruled upon by the court.

The first alleged defect raised by appellants has no merit because appellants have no standing to request a reversal or remand upon the basis of defective notice given to the Gatzes. Furthermore, appellants do not allege that this procedure caused any prejudicial harm to themselves or the children.

With respect to Appellants’ second contention, Pa.R.C.P. No. 126 provides that:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

The substantial rights of the parties that must be considered here and which are of paramount importance are the best interests of the children, not the interest of the litigants. In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982). The children were not adversely affected by this procedural defect. If the court were to deny the Gatzes custody on the basis of their failure to intervene within thirty days as required by the court’s order or for their failure to file a counterclaim, custody of the children would have been decided on the basis of a procedural defect, rather than on the merits. Obviously, this could not have been in the best interests of the children. Similarly, the Rules of Civil Procedure for Custody and Visitation mandate that no judgment may be entered by default in an action for custody and visitation. Pa.R.C.P. No. 1915.9. As the note to this unique rule points out, the determination of the best interests of a child is never a purely legal determination, but requires a multitude of factual determinations.

In any case, appellants were not prejudiced by the Gatzes’ failure to file a counterclaim asserting their right to custody. The Gatzes filed an adoption petition which notified appellants of their intention to intervene into the custody of Heidi and Jason. Furthermore, by the court’s order dated January 4, 1984, appellants had adequate notice that the adoption petition was going to be considered as an intervention in the custody action.

Similarly, with respect to their third contention, appellants do not assert that such a procedure was adverse to their own interests or those of the children. Furthermore, as discussed above, appellants had adequate notice as to the nature of the hearing.

As to appellants’ fourth contention, it is clear that no prejudicial harm occurred, since the court ultimately denied the Gatzes’ Petition for Adoption in its order dated May 24, 1984.

Because we find no evidence of prejudice to either appellants or, more importantly, the children, caused by the procedures utilized by the lower court, we need not reverse and remand on that basis.

Appellants also contend that the lower court failed to provide any analysis of the record in its opinions, requiring vacation of its orders. Our court has long required that the lower courts provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for its ultimate decision. Cady v. Weber, 317 Pa.Super. 481, 464 A.2d 423 (1983); Pa.R.C.P. No. 1915.10 — Explanatory Note — 1981. The appellate courts require an opinion which demonstrates that the trial judge in a custody case has analyzed the record as a whole and has dealt with significant factual disputes in a manner which will enable the appellate courts to understand the reasons for the decision and to make an intelligent evaluation of the opinion and of the testimony; the judge need not discuss the testimony of each witness or make citations to the transcript. Sandra L.H. v. Joseph M.H., 298 Pa.Super. 409, 444 A.2d 1241 (1982). The lower court’s opinion need not discuss all the evidence presented or state why some evidence is regarded as more persuasive. Id.

With each appealed order in the instant case, the court filed thorough and extensive opinions, containing 43 and 61 paragraphs respectively, recognizing and analyzing both positive and negative factors with regard to custody of Heidi and Jason. The trial judge has sufficiently presented those factors which he considered important and relevant to his decisions; we find it no more difficult to evaluate the instant opinions than those in any custody case.

Having decided the procedural issues, we now move to the main substantive issue in these appeals: whether the trial court erred in admitting, and basing certain of its factual findings upon, hearsay evidence that appellant John Steele had conducted an incestuous relationship with his daughter Janet Steele Gatz, when Janet was between the ages of 8 and 16. Appellants argue that the evidence of incest, which consisted of the presentation of seven witnesses who testified as to statements allegedly made to them by Janet in her lifetime, was hearsay not falling within any exception to the hearsay rule and, as such, was improperly admitted and considered. On the other hand, the Gatzes argue that the testimony, while hearsay, was properly admitted as a statement against interest or under a general exception to the hearsay rule for statements bearing strong indicia of reliability.

Whether a statement of a decedent is admissible when it is not against the declarant’s pecuniary, proprietary, or penal interest, but rather is against the declarant’s social interest, is a question of first impression in this court. There appear to be no decisions of this court or of our supreme court holding that declarations against societal interest are either admissible or inadmissible. Therefore, no precedent inhibits our adopting, as part of our common law of evidence, the views urged upon us by either appellants or appellees and the lower court. See Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974) (penal interest).

The law of this Commonwealth has historically been that declarations against pecuniary or proprietary interest are admissible as an exception to the hearsay rule. Id.; Commonwealth v. Hackett, 225 Pa.Super. 22, 307 A.2d 334 (1973); 8 Standard Pennsylvania Practice 2d § 49:24 (1982). While our courts have rarely expounded on the nature of the “interest” required to make the exception operable, see Commonwealth v. Honigman, 216 Pa.Super. 303, 264 A.2d 424 (1970); Commonwealth v. Antonini, 165 Pa.Super. 501, 69 A.2d 436 (1949), our state has followed the historical tendency nationwide to define “interest” as pecuniary or proprietary. Annot., 34 A.L.R.Fed. 412 (1977); 29 Am. Jur.2d Evidence § 619 (1967); McCormick on Evidence § 277 (2d ed. 1972 and 3d ed. 1984); D. Binder, Hearsay Handbook, § 29.02 (2d ed. 1983).

Recently, however, many courts and/or legislatures have recognized that statements made against interests which are not pecuniary or proprietary in nature can be uttered under reliable circumstances that indicate trustworthiness. As Justice Roberts stated in his concurring opinion in Commonwealth v. Nash, supra, 457 Pa. at 308, 324 A.2d at 349, “The limitation of the exception to declarations against pecuniary and proprietary interests is grounded in the belief that they are less likely to be motivated by extraneous considerations and provide less inducement to perjury. This reasoning is unsound.” Following the reasoning enunciated in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), our courts now recognize that declarations made against penal interests are also admissible as an exception to the hearsay rule. Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976); Commonwealth v. Nash, supra; Commonwealth v. Badger, 238 Pa.Super. 284, 357 A.2d 547 (1976), rev’d on other grounds, 482 Pa. 240, 393 A.2d 642 (1978); Commonwealth v. Hackett, supra. As explained in Commonwealth v. Hackett: “A distinction which would allow the admission of declarations against insignificant, insubstantial pecuniary interests while excluding declarations which bear the potential of serious penal punishment, would appear to be untenable and without logical support.” Id., 225 Pa.Superior Ct. at 27, 307 A.2d at 337. Similarly, declarations against penal interest have now been included as an exception to the hearsay rule in the majority of states’ evidence codes, the Federal Rules of Evidence, and the Revised Uniform Rules of Evidence (1974).

Appellees urge us to find that á declarant’s assertion made against his or her social interest likewise merits exception to the hearsay rule. Appellees are not the first persons to espouse this social interest exception. As expressed in the Model Code of Evidence and in the Uniform Rules of Evidence, a statement which was at the time of its making so far contrary to the declarant’s interest that it would tend “to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true,” would not be excluded by the hearsay rule. See United States v. Dovico, 261 F.Supp. 862 (S.D.N.Y.1966), aff'd, 380 F.2d 325 (2d Cir.1967), cert. denied, 389 U.S. 944, 88 S.Ct. 308,19 L.Ed.2d 302 (1967); Uniform Rules of Evidence Rule 804(b)(3), 13 U.L.A. 215 (1980); D. Binder, Hearsay Handbook, § 29.04 (2d ed. 1983).

Following in the pattern of the Uniform Rule, Federal Rule of Evidence No. 804(b), as promulgated by the Supreme Court, included statements tending to make the declarant “an object of hatred, ridicule, or disgrace.” This provision was deleted from the rule, however, when enacted by Congress. See Fed.R.Evid. 804(b)(3), Historical Note, 28 U.S.C. (1984).

Despite the absence of a societal interest exception in the federal rules, some states have expanded their common law “declarations against interest” exception to include an assertion against a declarant’s social interest; moreover, several states have modernized their codified rules of evidence to admit declarations against social interest.

While the federal courts and the majority of state courts that have considered the issue refused to recognize an assertion against a declarant’s social interest as an exception to the hearsay rule, upon careful consideration we find appellees’ arguments to be persuasive. A declarant’s assertion made against his or her social interests may merit exception to the hearsay rule, depending, of course, upon the individual circumstances of each case. For example, “a person is not likely to assert that he is afflicted with genital herpes unless it is true. Such assertion is exceptionally trustworthy and merits exception to the hearsay rule.” D. Binder, Hearsay Handbook, § 29.05 (2d ed. 1983). Similarly, a statement made to a third party by an unmarried woman who later underwent an abortion that she was pregnant was admitted as a declaration against her social interests, because the “declaration was against the interests of the deceased. It tended to show a state of facts inconsistent with her observance of the rules of chastity. No beneficial purpose of the deceased could be served by the declaration.” State v. Alcorn, 7 Idaho 599, 609, 64 P. 1014, 1017 (1901). See also, In re Marriage of Sarsfield, — Mont. —, 671 P.2d 595 (1983) (witness’ testimony concerning ex-husband’s admissions to her about his sexual abuse of their daughter was admissible as a statement against interest since ex-husband’s statements tended to make him an object of hatred, ridicule, or disgrace, so that a reasonable man in his position would not have made the statements unless they were true); First National Bank in Grand Junction v. Osborne, 28 Utah 2d 387, 503 P.2d 440 (1972) (witness’ testimony concerning party’s statement that he was “able to hang one” on a third party was admissible as a statement against interest in that such a statement, if true, would tend to make declarant an object of hatred, etc.); Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980) (deposition of murder defendant’s wife taken during custody proceedings between her and her former husband was admissible as statement against interest because it tended, inter alia, to make her an object of disgrace).

Examining (and later rejecting) reasons supporting a social interest exception to the hearsay rule, the Dovico court stated:

[Declarations of facts which would tend to make the declarant an object of hatred, ridicule, or social disapproval, should on reason be admissible as against the social interest of the declarant * * *. This is particularly so if the notion of untrustworthiness provides the major rationale for the exclusion of hearsay:
* * * a person will not concede even to himself the existence of a fact which will cause him substantial harm unless he believes that the fact does exist. If this theory is plausible there seems no valid reason for not extending the exception to include statements against penal interest and those which would subject the declarant to hatred, ridicule, contempt or social ostracism.

United States v. Dovico, supra at 872 (footnotes and quotations omitted) (emphasis in original). Human nature being what it is, people are not likely to concede the existence of facts which would make them objects of social disapproval in their community unless the facts are true. The realization of such a consequence is generally a much more powerful influence upon conduct than the realization of legal responsibility for a sum of money, which has long been accepted as a declaration against interest. See, Morgan, Declarations Against Interest, 5 Vand.L.Rev. 451, 475 (1952); Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 Harv.L.Rev. 1, 39 (1944). As one commentator has stated:

[T]he restriction to material interests, ignoring as it does other motives just as influential upon the minds and hearts of men, should be more widely relaxed. Declarations against social interests, such as acknowledgements of facts which would subject the declarant to ridicule or disgrace, or facts calculated to arouse in the declarant a sense of shame or remorse, seem adequately buttressed in trustworthiness and should be received under the present principle.

McCormick on Evidence, § 278 (2d ed. 1972) (footnotes omitted).

In summary, the reason for admitting declarations against interests of any type is that people do not make statements that are disadvantageous to themselves without substantial reason to believe that the statements are true. The question is this: Would a reasonable person in declarant’s position have made the assertion against interest unless he or she believed it to be true? If not, we see no logical reason, assuming that it is relevant, to forbid its use as an exception to the hearsay rule, whether the personal interest that is imperiled is classified as pecuniary, proprietary, penal, or social. In other words, we find a declaration against interest to be an out-of-court statement that was made by a non-party who has since died or has become unavailable as a witness; that concerned facts of which declarant had personal knowledge; that involved an interest (whether pecuniary, proprietary, penal, or social) of declarant that was so palpable that it would naturally have been present in the declarant’s mind; and finally, that was against such interest. See 8 Standard Pennsylvania Practice 2d, § 49:21. Like the supreme court in Commonwealth v. Nash, supra, when it discussed declarations against penal interests, we do not intend that every declaration against social interest must be admitted into evidence. Rather, this exception applies only to those hearsay declarations that were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. See Chambers v. Mississippi, supra.

It is clear that questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983); Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978). See Thompson v. Norman, 198 Kan. 436, 424 P.2d 593 (1967) and State v. Norgaard, 201 Mont. 165, 653 P.2d 483 (1982) (trial judge has substantial discretion to exercise in determining whether an assertion against interest qualifies for exception to the hearsay rule, and only manifest abuse of that discretion will warrant reversal on appeal).

In the case at bar, Janet Steele Gatz made various statements concerning numerous incidents of incest and sexual abuse by her father, one of the appellants herein. She also related to numerous witnesses that this conduct resulted in an unwanted pregnancy, which was ultimately terminated by abortion. Upon close examination, we have no doubt that these statements were made against Janet’s social interest. The incidents Janet described to the various witnesses were surrounded by such shame, embarrassment, and disgrace that there could have been no self-serving purpose of the statements when made.

Seven witnesses testified under oath and subject to cross-examination as to the nature of the statements made by Janet. Except for the decedent’s husband and mother-in-law, the statements were presented through witnesses with no interest in the outcome of the litigation. Additionally, several of the witnesses did not come forward voluntarily with their testimony, but rather, were subpoenaed to appear and testify.

The record also indicates that each individual witness’ recollection as to the nature and extent of the incestuous relationship was, for the most part, consistent with each of the other witnesses. All testified that the nature of the incestuous activities was sexual intercourse. Several of the witnesses testified that the decedent mentioned that she was subjected to intercourse with her father beginning at the age of eight, and that the abuse continued until she reached the age of 16, when she moved out of her parents’ house. Additionally, several of the witnesses testified that the decedent believed her pregnancy at age 16 was as a result of intercourse with her father. Furthermore, although several witnesses recollected similar versions of the decedent’s statements, generally the witnesses had not shared their knowledge with the other witnesses and were not aware that the decedent had shared these experiences with one or all of the other witnesses.

The decedent was 18 years old or older when she described these events to her friends. Thus, she presumably had knowledge of the adverse societal impact that could result upon her revelation of such experiences to other individuals. Several of the witnesses testified that the decedent became emotionally and visibly upset when she discussed the subject of being raped by her own father. Such emotion would not likely result from the deliberate creation of a falsehood.

The timing of the decedent’s declarations also supports their trustworthiness. The declarant’s death occurred on October 12, 1982. The statements uttered by the decedent were made long before they were material to any custody dispute, thereby negating any motive on decedent’s part to taint her father’s relationship with herself or any of her children. The decedent’s statements occurred over a long period of time, beginning in 1974 until her death in 1982. It would be illogical to assume that an individual without deep feelings about her own father’s actions would continue such a falsehood for a period extending more than seven years. Furthermore, the events revealed by the declarant originated from first-hand knowledge and experience of those events, further indicating their trustworthiness and competence.

Finally, the testimony presented through admission of decedent’s statements related to the moral fitness of a party requesting custody, and was thus both relevant and material in a custody/adoption case. Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983); In re Custody of Temos, supra; Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980). Certainly John Steele’s incestuous conduct is probative on that issue. Furthermore, the statements were more probative on the point for which they were offered than any other evidence which the proponent could procure through reasonable efforts. There were only two parties to the events described in the testimony, appellant John Steele and the deceased, Janet Gatz. Thus, the only manner in which the Heddings or Joe and Betty Gatz could offer evidence with respect to John Steele’s incestuous behavior, other than requesting John Steele to make an admission, was through the hearsay testimony utilized. The interests of justice will best be served by admission of the statements into evidence. It is well settled that the paramount consideration before the trial judge in a child custody proceeding is the best interests and welfare of the child, which includes the child’s physical, intellectual, moral, and spiritual well-being. Brooks v. Brooks, supra; Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977). Protecting Heidi Gatz, who was eight years of age at the time of the custody proceeding, from possible sexual abuse, is certainly of great interest and importance to the trial court.

In summary, it is clear that the trial judge did not abuse his discretion by allowing admission of the hearsay testimony in order to evaluate the witnesses, weigh their testimony, and to safeguard the best interests and welfare of the children.

Appellants’ second issue, that the trial court erred in basing certain of its factual findings on hearsay testimony, is based solely on the premise that the hearsay evidence was incompetent and therefore improperly admitted. Since we have determined that the testimony in question was properly admitted as a declaration against interest, we are not persuaded by appellants’ arguments in this regard. Because the hearsay testimony was properly admitted, our decision in In Interest of Leslie H., 329 Pa.Super. 453, 478 A.2d 876 (1984) is easily distinguishable from the instant case. Furthermore, the trial judge recognized the proper weight to be given such testimony, noting that:

Although the sexual abuse between John Steele, and his daughter, Janet, is remote in time, and although it was only evidenced by testimony permitted over the objections of counsel for John Steele, and although there is no evidence that John Steele, in fact, has ever molested, or in any way acted immorally, with respect to Heidi, the Court nevertheless considers the past conduct as a negative factor with respect to the appropriateness of awarding primary custody to John and Edith Steele.

Lower ct. op., May 24, 1984, at 12. We see no need to discuss this issue further.

Next, appellants take issue with seven findings of fact, claiming that they are not supported by the record. “[I]f the issue is whether we should reverse the lower court’s findings of fact, we must defer to the lower court and reverse only where, in making the findings, the lower court has abused its discretion.” Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 244, 447 A.2d 630, 633 (1982). Accord In re: Damon B., 338 Pa.Super. 597, 488 A.2d 53 (1985). Upon careful examination of the record, we find that all seven contested findings of fact are supported by competent evidence, and thus do not constitute an abuse of discretion. We must therefore accept them as binding. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984); Agati v. Agati, 342 Pa.Super. 132, 492 A.2d 427 (1985).

Finally, appellants argue that the emphasis of the trial shifted from the best interests of the children to whether there had been an incestuous relationship between Janet and her father. Appellants contend that although a trial court must necessarily and rightfully be concerned with the morality or immorality of any proposed custodian of children, it cannot and should not allow any single factor or piece of evidence to so influence the proceedings and the court’s thinking so as to lose sight of what is truly in the best interests of the children. Brief for Appellants at 29. We agree with appellants’ observation, but upon consideration, we do not believe that the court ever lost sight of the best interests of Heidi and Jason.

In both opinions, the court expressly recognized that the sole issue and paramount concern in a child custody case, such as the instant case, is the best interests of the children. Lower ct. op., May 12, 1983 at 2; lower ct. op., May 24, 1984 at 7. With this paramount concern in mind, the court then thoroughly investigated the facts and made a comprehensive analysis of the record. The trial court did consider the incest testimony, but accorded to it the proper weight, and as discussed earlier, clearly considered it to be only one factor, among many other relevant factors, in making its decision. The court also heard considerable contrary testimony concerning the incest issue from a number of witnesses, including John and Edith Steele and several of their children. The court’s opinions contained 43 and 61 findings of facts respectively, indicating that it considered many relevant factors before awarding custody to the Heddings/Gatzes. We do not find that the court was improperly prejudiced so as to shift the emphasis of the proceedings from the best interests of Heidi and Jason, to a trial solely concerned with the incestuous relationship between Janet and John Steele. The trial court has presented us with two opinions reflecting a thorough and deeply concerned analysis of the record as a whole. It has sufficiently presented in these opinions those factors which it considered important and relevant in tipping the balance in favor of an award of custody to the Heddings, and later, the Gatzes.

Because we find the trial court’s incontrovertible factual findings support its factual conclusions, we may not interfere with those conclusions unless they are unreasonable. Commonwealth ex rel. Robinson v. Robinson, supra, (only where it is constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the custody decisions of the trial judge). The record herein, taken as a whole, amply supports an award of custody to the Gatzes, and thus, there was no abuse of discretion.

Orders affirmed.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I join in Judge Wickersham’s exemplary opinion which well decides this troublesome custody case. However, since apparently this is a case of first impression in Pennsylvania on an important evidential matter, i.e., the scope of the exception to the hearsay rule for an assertion against interest, I take this opportunity to offer my view as to the proper formulation of the exception.

An out-of-court assertion, offered to prove its truth, should be excepted to the hearsay rule if (1) the declarant is unavailable at trial, and (2) the assertion was at the time of its making so far contrary to the declarant’s interest that a reasonable person in his position would not have made the assertion unless he believed it to be true.

It doesn’t matter whether the offended personal interest be labeled pecuniary, proprietary, penal, social, or by some other descriptive term. The important thing is that, taking into consideration the circumstances in which the assertion was made, it be so self-damaging that a reasonable declarant would not have made it unless he was convinced that it was true. This indicium of reliability makes such an assertion substantially more trustworthy than hearsay in general, thus meriting exception to the hearsay rule.

This inclusive definition of the hearsay exception for an assertion against interest is consistent with views expressed by many leading commentators on the law. See American Law Institute, Model Code of Evidence, Rule 509; National Conference of Commissioners on Uniform State Laws. Uniform Rules of Evidence (1974 version), Rule 804(b)(3); Binder, The Hearsay Handbook (Second Edition) § 29.04; Jones on Evidence (Sixth Edition) § 9:9; Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule (1944) 58 Harvard Law Review 1; Morgan, Declarations Against Interest (1952) 5 Vanderbilt Law Review 451.

      . See, e.g., Arkansas Uniform Rules of Evidence 804(b)(3); California Evidence Code § 1230; Kansas Code of Civil Procedure § 60-460(j); Maine Rules of Evidence 804(b)(3); Montana Rules of Evidence 804(b)(3); Nevada Revised Statutes § 51.345; New Jersey Evidence Rule 63(10); North Dakota Rules of Evidence 804(b)(3); Texas Rules of Evidence 303(24); Wisconsin Statutes Annotated § 908.045(4).

      . We note that an- argument could be made that the decedent’s statements were against her proprietary interests also, since they might have provided a foundation for depriving her of custody of her children. See Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980).

      . Due to our disposition of this issue on the grounds that the statements were admissible as declarations against decedent’s societal interest, we need not and do not decide whether the statements were admissible because they bear strong indicia of reliability and therefore should be admitted as a general exception to the hearsay rule similar to the "catch-all” exception of the Federal Rules of Evidence Rule 804(b)(5).

      . The specific findings of fact contested are the following: Findings of Fact Nos. 12 and 17, Lower ct. op., May 12, 1983, and Findings of Fact Nos. 18, 36, 37, 38, and 41, Lower ct. op., May 24, 1984. These findings generally concern the potential for sexual abuse or immorality in appellants’ home, the child-rearing attitudes of appellants, appellants’ lack of cooperation with the Heddings and the Gatzes, and appellants’ bitterness and resentment towards Mack Gatz and his family.