author: CIRILLO, Judge: JOHNSON, Judge,

text:
    453 A.2d 642
    COMMONWEALTH of Pennsylvania v. Robert WOMACK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 4, 1982.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Denied March 22, 1983.

      Harry L. Clark, Philadelphia, for appellant.
    Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

On July 18, 1980, appellant, Robert Womack, was found guilty of Rape and Criminal Conspiracy. Following the jury’s verdict, appellant’s trial counsel failed to file post-verdict motions pursuant to Pa.R.Crim.P. 1123. Instead, counsel attempted to file post-trial motions nunc pro tunc on January 26, 1981, the date of sentencing. The trial judge denied the request, and imposed sentence. Shortly thereafter, appellant filed a pro se Notice of Appeal to this court.

Appellant raises the following contentions for our review: (1) The trial court committed reversible error by granting the Commonwealth’s pre-trial motion to amend the information; (2) closing argument by the District Attorney amounted to prosecutorial overreaching; (3) the trial court committed reversible error in allowing a Commonwealth witness to express an opinion without a proper foundation being laid, and; (4) trial counsel was ineffective for failing to pursue a pretrial motion to suppress evidence, and for failing to thoroughly prepare his client’s case for trial. Appellant’s contentions are without merit and we, therefore, affirm the lower court’s judgment of sentence.

Appellant’s first contention is that the trial court committed reversible error by granting the Commonwealth’s pretrial motion to amend the information, adding the charge of Criminal Conspiracy. Specifically, appellant argues that the amendment irreversibly prejudiced his case because he was denied adequate notice of all pending charges, as well as, adequate time to prepare a defense to the additional charge. No request was made for a continuance in order to prepare for the new information, as provided for by Pa.R.Crim.P. 229. See Commonwealth v. Fowler, 259 Pa.Super. 314, 320, 393 A.2d 844, 847 (1978).

This issue was not raised in post-trial motions and, therefore, the merits of this issue have not been properly preserved for appellate review. Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980); Commonwealth v. O'Brien, 273 Pa.Super. 198, 417 A.2d 236 (1979). However, appellant’s brief couches the issue within the context of an ineffective assistance of counsel claim, in that trial counsel failed to preserve his original objection to the amendment by failing to file post-trial motions. Since this appeal represents the earliest opportunity at which appellant is represented by new counsel, the issue is properly before us at this time. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

The standard of review in determining whether or not counsel has rendered ineffective assistance necessitates an initial inquiry into whether the underlying claim is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the underlying claim is found to be of arguable merit, only then may we proceed to determine whether there was some reasonable basis for counsel’s actions designed to protect his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Pennsylvania Rule of Criminal Procedure 225 provides:

(a) In counties in which the indicting grand jury has been abolished, after the defendant has been held for court, the attorney for the Commonwealth either shall move to nolle prosequi the charges or shall proceed by preparing an information and filing it with the Court of Common Pleas.

According to Pennsylvania Rule of Criminal Procedure 229, after the information or indictment is issued:

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

In determining whether an additional or different offense has been added by the amendment, the courts look to whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information.

Applying these standards, our court in Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), upheld a substantive amendment to an information because it found that appellant was in no way prejudiced by the change. The court emphasized that appellant’s defense to the charge was unaltered, and it was evident that he had been thoroughly informed of the underlying events giving rise to the charges. See also, Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979); Commonwealth v. Yohn, 271 Pa.Super. 537, 414 A.2d 383 (1979).

In the case at bar, appellant and his co-defendant were arrested and charged with criminal conspiracy, criminal attempt of involuntary deviate sexual intercourse, simple assault, kidnapping, rape, robbery, unlawful restraint, indecent assault, theft, recklessly endangering another person and receiving stolen property. At the preliminary hearing, on February 27, 1980, the court held that a prima facie case had been proven by the Commonwealth against both defendants on all charges except robbery, which was dismissed. Though the court failed to include conspiracy in its concluding remarks, in the preliminary hearing disposition report, signed by the judge and filed with the prothonotary, criminal conspiracy was listed as one of the offenses for which appellant was being held. Pursuant to Pa.R.Crim.P. 225, the District Attorney issued bills of information which, however, did not include the charge of criminal conspiracy. The day of the trial, July 15, 1980, the court granted the Commonwealth’s motion to amend the informations of appellant and his co-defendant to include the charge of Criminal Conspiracy.

We conclude that absent a showing of prejudice, the amendment to the information, even on the day of trial, was permissible. See Yohn, supra. Instantly, appellant was clearly aware that his conduct included a potential criminal conspiracy charge. The complaint filed against appellant and his co-defendant included the charge of criminal conspiracy and, the preliminary hearing disposition report, signed by the judge, also contained the charge. Moreover, appellant was tried together with his co-defendant at every stage of the proceedings, and the victim testified at the preliminary hearing that appellant and his co-defendant had acted together. In addition, the consent defense, pursued by appellant and his co-defendant, was not affected by the addition of conspiracy. Appellant maintained throughout the trial that the intercourse was consensual. Appellant has not shown how the amendment changed this defense. Furthermore, although Pa.R.Crim.P. 229 allows for a continuance in order to prepare for the new information, no such request was made by appellant. Fowler, supra (failure to request continuance after information amended indicates that amendment caused no prejudice).

Though conspiracy is a different offense from those listed in the original informations, requiring proof of an additional element, unlawful agreement, we find that appellant had notice of the charge and was not prejudiced by the amendment. Therefore, the trial court did not err in allowing it, and trial counsel can not be found ineffective for failing to raise it in his post-trial motions. See Commonwealth v. Weathersel, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978).

Appellant’s second contention is that the prosecutor’s closing summation amounted to overreaching. Appellant argues that the prosecutor committed reversible error when he; (1) commented that certain defense witnesses never appeared in court to corroborate appellant’s testimony, (2) suggested that the mother of appellant’s co-defendant was biased and, (3) asked the jury to question the truthfulness of appellant’s testimony.

As with appellant’s first contention, this issue was not preserved by a timely filing of post-trial motions. However, the issue is properly before us on appeal because it is couched in ineffectiveness of counsel terms.

Concerning the closing argument by the prosecutor, the Pennsylvania Supreme Court has adopted the A.B.A. Standards Relating to the Prosecution Function. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979); Commonwealth v. Starks, 479 Pa. 51, 56, 387 A.2d 829, 831 (1978). The A.B.A. Standards include the following:

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.

A.B.A. Standards Relating to the Prosecutorial Function, Section 5.8 (Approved Draft, 1971)

Nevertheless, our courts recognize that not every intemperate or improper remark by the prosecutor requires a new trial. Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). Rather, before a new trial is required, the language must be such that its “unavoidable effect... would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Mikesell, 475 Pa. 589, 595, 381 A.2d 430, 433 (1977); Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975); Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968).

In the case at bar, the prosecutor made reference to the fact that witnesses, appellant claimed could exonerate him, never testified at trial. The prosecutor inferred that if they had appeared their testimony would have been unfavorable to the appellant. These remarks were permissible. The Pennsylvania Supreme Court has held that, when a defendant relies on the existence of alibi witnesses who knew him, but does not call those witnesses, the jury may infer that the absent testimony would be adverse, Commonwealth v. Wright, 444 Pa. 536, 541, 282 A.2d 323, 325 (1971), and the prosecutor may ask the jury to draw that conclusion. Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974). The witnesses mentioned in appellant’s version of the rape are clearly in the same category as the alibi witnesses in Wright and Johnson and the comment was allowable.

The prosecutor also made a. remark that the testimony of the co-defendant’s mother was biased. The appellate courts have held that a prosecutor may properly argue that relatives are more likely to be biased or interested in the outcome of the case, and this factor should be considered by the jury in giving weight to that type of testimony. Commonwealth v. Van Cliff, supra; Commonwealth v. Gunderman, 268 Pa.Super. 142, 407 A.2d 870 (1979). Thus, the comment was permissible.

Finally, appellant objects to the prosecutor’s reference to appellant’s credibility. Specifically, appellant argues that the prosecutor expressed his personal opinion of appellant’s guilt by stating at the end of his argument that “I submit” the Commonwealth evidence “could not all be wrong”.

It is well settled that a prosecutor is free to argue the reasonable inferences supported by the record. Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976). The prosecutor may argue that the evidence proves the defendant guilty as charged. Joyner, supra; Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974).

In the case at bar, the prosecutor, in reviewing the appellant’s testimony, framed his observations as questions for the jury. The prosecutor did not argue that the jury should find appellant guilty simply because he believed the appellant to be guilty; rather, the prosecutor permissibly argued that the evidence proved appellant’s guilt. This was allowable. See Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974); Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970); Gunderman, supra; Commonwealth v. Tolassi, 258 Pa.Super. 194, 392 A.2d 750 (1978).

Even if the comment by the prosecutor was improper by use of the words “I submit”, it was not so prejudicial that the jury became incapable of exercising its independent judgment, thus requiring a new trial. Stoltzfus, supra. Any possible prejudice created by the statement was cured by the trial court’s instructions to the jury that they alone were to assess the witness’ credibility. Gunderman, supra. Since appellant’s contention that the prosecutor’s closing amounted to overreaching is meritless, trial counsel can not be held ineffective for failing to raise the issue in timely post-trial motions. Weathersel, supra; Wilson, supra.

Appellant’s third contention is that the trial court committed reversible error in allowing the Commonwealth witness, Jerry Gordon, to express an opinion of whether the victim, Ms. Holmes, was intoxicated or on drugs the night of the incident.

Mr. Gordon was the first person to see the victim after the alleged rape. He testified at trial that the complainant did not appear to be under the influence of drugs or alcohol when he observed her. The opinion testimony was admitted by the court over objection of defense counsel. Appellant argues that the Commonwealth failed to lay a proper foundation for the admission of this testimony.

Intoxication is a matter of common knowledge, and opinions given by lay people are permissible on the issue. Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978). However, the lay witness must have sufficient facts on which to base his opinion before he can express an opinion on another’s intoxication. Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081 (1978). See also Commonwealth v. Summers, 269 Pa. Super. 437, 410 A.2d 336 (1979) (court concludes witnesses’ observations of the way the person looked and the way he was walking provided sufficient factual basis for witness to conclude a person was intoxicated). The court also looks to the witness’ personal knowledge and observation. Commonwealth v. Davenport, 255 Pa.Super. 131, 386 A.2d 543 (1978).

In the case at bar, the witness, Jerry Gordon, testified that the victim of the alleged rape came into his home and sat at the table. Mr. Gordon observed the victim as she walked into the house to call the police. The victim talked to Mr. Gordon, and at one point, she was within six inches of Mr. Gordon, and he testified that he did not smell any alcohol on her breath. We take note, that the policeman who arrived at Mr. Gordon’s address to pick up the victim also testified as to whether the victim was under the influence of alcohol or drugs, essentially reaching the same conclusion as Mr. Gordon. Appellant does not object to this testimony.

Mr. Gordon’s testimony provided a sufficient factual basis for his opinion and, therefore, a proper foundation was laid. It was up to the jury to accept or reject his testimony. Therefore, the trial court did not abuse its discretion in permitting the jury to hear and weigh the testimony of Mr. Gordon. We find no reversible error. Thus, trial counsel cannot be found ineffective for failing to raise this issue in a timely post-trial motion. Weathersel, supra; Wilson, supra.

Appellant’s fourth and final contention is that trial counsel was ineffective for failing to pursue a pre-trial suppression motion and for failing to properly prepare his case before trial. We will consider these two assertions of error separately.

The first part of this issue concerns trial counsel’s failure to pursue a pre-trial motion to suppress evidence. The motion was filed by appellant’s co-defendant and withdrawn at the commencement of the trial. It sought to exclude from evidence items seized from co-defendant’s home, where the arrest was made. At the time of the arrest, police recovered a bracelet belonging to the victim, which was on the wrist of the co-defendant. Police later obtained a search warrant to recover a necklace and a hat belonging to the victim, as well as the sheets on the bed where the rape occurred. The police executed the warrant and recovered the victim’s hat and necklace and also seized the co-defendant’s bedsheets. Appellant contends counsel should have filed a motion to suppress this evidence.

Initially, we note that the seizure of the victim’s bracelet was proper, as it was incident to a valid arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), Commonwealth v. Vessells, 273 Pa.Super. 100, 416 A.2d 1108 (1979), Commonwealth v. Dennis, 236 Pa.Super. 348, 344 A.2d 713 (1975).

Concerning the seizure of the hat, necklace and bedsheets, we are confronted with the question of whether appellant has standing to contest the second search of the co-defendant’s home, which was conducted pursuant to a search warrant. The United States Supreme Court has held in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), that being legitimately on the premises does not, of itself, suffice to give standing to an individual to contest a search conducted in his presence. Clearly appellant in this case neither occupied nor possessed the room in appellant’s home. Appellant did not live at the co-defendant’s home, he was simply a visitor. Thus, he did not have a reasonable expectation of privacy. See Rakas, supra; Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976). Therefore, appellant lacked standing to contest the second search.

Assuming arguendo, that appellant did have standing to contest the second search, the search was properly conducted pursuant to a search warrant obtained, based on evidence given by the victim, which was sufficient to support a finding of probable cause. Hence, trial counsel cannot be held ineffective for failing to pursue the meritless suppression motion.

Finally, appellant argues that trial counsel was ineffective for failing to properly prepare his case before trial. The sole basis for this contention is trial counsel’s failure to interview Commonwealth witness Jerry Gordon before trial.

It is well settled that an allegation of ineffectiveness of counsel based on lack of preparation is insufficient to warrant the relief of a new trial absent a showing that more preparation would have led to results beneficial to the defense. See Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981); Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980).

In the instant case, it is admitted that counsel did not interview Mr. Gordon. However, appellant does not tell us of what usefulness a pre-trial interview with the Commonwealth witness would have been. Instead he asserts that had counsel interviewed the witness before hand, he would have decided not to call him to the stand. Mr. Gordon was called by the prosecution, not the defense.

A review of the record reveals that defense counsel cross-examined the witness very effectively. On cross-examination, Mr. Gordon admitted he was not an expert in determining whether someone was under the influence of drugs and that he could not conclusively state that the victim was not under the influence of drugs or alcohol, when he observed her, on the night of the rape.

Appellant’s speculation that counsel could have been better prepared is meritless and trial counsel cannot be held ineffective, absent a showing of how more preparation would have led to better results.

Judgment of sentence affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I respectfully dissent. I concur in the majority’s determination of all but Appellant’s second contention concerning overreaching by the prosecutor in his closing summation. The issue has been formulated in terms of ineffective assistance because Appellant’s trial counsel failed to specifically object and failed to file post-verdict motions on behalf of Appellant.

Concerning ineffectiveness of counsel claims, it is well-settled that counsel’s assistance is deemed constitutionally effective once we are able to conclude that a particular course chosen by counsel has some reasonable basis designed to effectuate his client’s interests. • Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). A two-step analysis is used to examine a claim of ineffectiveness:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.

Commonwealth v. Jennings, 285 Pa.Super. 295, 298-99, 427 A.2d 231, 232 (1981).

The statements at issue, as made by the prosecutor in reference to the man named Dwight were:

Now, this man, who incidentally told Mr. Womack that he was afraid of getting arrested, said he never asked him his name. Can you believe that if any of you were charged with rape, if you thought there was an individual who could free you, could come into court and say, “This is what happened,” wouldn’t you at least get his last name and give it to your attorney? Wouldn’t you try to find out where he is?
You know, both of them talked about the seriousness of this offense, and yet Mr. Womack did not ever get the last name of this man who is not in court, who could free them; who could testify on their behalf. Why?
Why are they saying that the man who talked, the man who offered them the money, the man who did not come forth with the money, is not here? Isn’t it convenient? Isn’t it very very convenient?
(Notes of Testimony, 7/18/80, pp. 626-27.)

The majority states that the man named Dwight who was mentioned by Appellant in his testimony is in the same category as an alibi witness. I disagree.

Appellant testified that Dwight had offered the victim money for consensual sex and then refused to pay the victim after he and Appellant, among others, had had sex with the victim. Appellant further testified that he did not know Dwight’s last name or where he lived.

Even had Dwight appeared at trial, his testimony would not necessarily have exculpated Appellant. The testimony concerning Dwight’s role as a participant in the incident does not lead to the conclusion that Dwight was an alibi witness. Alibi involves a mode of defense and evidence that a party accused of a crime was at a different place than the scene of the crime.

It was improper for the prosecutor to imply that a negative inference could be drawn from Appellant’s failure to call Dwight as a witness where Appellant has given, in my opinion, a satisfactory explanation as to why Dwight did not appear at trial. Commonwealth v. Matt, 295 Pa.Super. 293, 441 A.2d 1239 (1982); Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980). Also, it is unlikely that Dwight would have made himself available to testify in any event because of Appellant’s implication of Mm as a co-defendant to the crimes. See Commonwealth v. Harley, supra (no negative inference may be drawn from a party’s failure to call a witness when that witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining unbiased truth).

Although a prosecutor must have reasonable latitude in presenting his arguments to the jury and in responding to the arguements of defense counsel, Commonwealth v. Dozier, 294 Pa.Super. 249, 439 A.2d 1185 (1982), the comments in the instant case exceeded those bounds. Their unavoidable effect was to create a fixed bias and hostility toward Appellant in the juror’s minds. See Commonwealth v. Smith, 289 Pa.Super. 356, 433 A.2d 489 (1981).

Therefore, as this issue was of arguable merit and no reasonable basis for trial counsel’s failure to object could exist in this case, I would hold Appellant’s trial counsel ineffective.

      . Act of 1972, December, 6, P.L. 1482, No. 334, § 1; 18 C.P.S.A. § 3121.

      . Id. 18 C.P.S.A. § 903.

      . According to the Pennsylvania Rules of Criminal Procedure, Post-Verdict Motions must be filed within ten days after a finding of guilt. Pa.R.Crim.Pro. 1123.

      . The trial judge denied the nunc pro tunc motions and considered all the issues raised by appellant as waived for appellate review because appellant had not given any valid reason for his failure to comply with Pa.R.Crim.P. 1123. See Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).

      . Appellant was represented throughout his trial and sentencing by Harvey BookeF, Esquire. Following- appellant’s pro se motion for appeal, present counsel, Harry L. Clark, Esquire, was appointed.

      . As with appellant’s first and second contentions, this issue was not preserved by a timely filing of post-trial motions. However, the issue is properly before us on appeal, because it is couched in ineffectiveness terms.


source: Caselaw Access Project

author: VAN der VOORT, Judge:

license: Public Domain

text:
    453 A.2d 651
    In re ESTATE OF Ruth B. FREEDMAN, Deceased. Appeal of Nancy NIEHAUS, a Minor, by her Father and Natural Guardian Earl A. NIEHAUS; Pamela Niehaus and Jeffrey Niehaus, Minors, by their Father and Natural Guardian, Lee Niehaus; and Susan Peters, Individually and as Representative of a Class of Plaintiffs.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1981.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Denied March 3, 1983.

      Myron B. Markel and Daniel M. Berger, Pittsburgh, for appellants.
    W. Gregg Kerr, Pittsburgh, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellants filed a complaint in the Civil Division of the Court of Common Pleas of Allegheny County, naming appellee, Equibank N.A. as defendant. The complaint contained allegations in both assumpsit and trespass. The complaint alleged that assets of the Freedman estate had been placed in a common trust established by Equibank’s predecessor. Appellants claimed to be beneficiaries of the Freedman trust funds. It was alleged that the trustee, Equibank had mismanaged the common trust funds resulting in a substantial depletion of the assets. Appellants sought both compensatory and punitive damages for themselves and all members of a plaintiff class consisting of all those who had an interest in the common trust.

Equibank filed preliminary objections, raising among other things, that the Orphans’ Court had jurisdiction of the action. The case was transferred to the Orphans’ Court. Equibank filed additional preliminary objections in the Orphans’ Court raising, inter alia, that that court could only hear a case started by a petition for a citation; the court could not hear a class action; and the claim for punitive damages was improper. Appellants petitioned to remand the class action to the Civil Division. After argument, the Orphans’ Court, en banc, struck the class action, dismissed the claim for punitive damages and denied the petition to transfer the case back to the Civil Division. This appeal is taken from the majority order of the court.

Prior to appellate argument Equibank motioned to quash this appeal arguing that the order appealed from was interlocutory and in the alternative that the order was not docketed in the court below. By per curiam order, dated July 14, 1981, the motion was denied without prejudice to the parties to renéw the issue at the time of argument. The issue was addressed at the time of oral argument and we must first deal with it before attending to the merits of this appeal.

After reviewing the relevant docket entries, we find that the order of December 19, 1980, was filed and noted upon the docket in the court below. We may also summarily dispose of the question as to the appealability of an order denying class action status. Our Supreme Court in Bell v. Benefic. Consumer Co., 465 Pa. 225, 348 A.2d 734 (1975) clearly sanctioned such appeals. There the court found that even though the appellant could bring an individual action, such appellant could nonetheless appeal the denial of the class action status. We hold likewise here and will therefore deny Equibank’s motion to quash. Also, see Janicik v. Prudential Insurance Co. of America, 305 Pa.Superior Ct. 120 n. 1, 451 A.2d 451 n. 1 (1982).

Now turning our attention to the appeal itself, two issues are raised before this court:

1) Whether the Orphans’ Court should have assumed jurisdiction or have returned the action to the Civil Division for disposition of the class action?

2) Did the Orphans’ Court improperly dismiss the claim for punitive damages on preliminary objections?

I

Appellants’ position may be summarized as follows. Pennsylvania has adopted a Unified Court System. See Pennsylvania Constitution, Article V, § 5 and 42 Pa.C.S. § 952. Therefore, they argue each division of the court has jurisdiction over the entire action. Applying this to the current case, appellants contend that the Civil Division could invoke the jurisdiction of the Orphans’ Court and the Orphans’ Court could invoke the jurisdiction of the Civil Division. Rule 2.1, Pennsylvania Orphans’ Court Rules requires the court to conform to equity practice. Rule 1501, Pa.R. C.P. provides that equity follow the rules relating to an action brought in assumpsit. Therefore appellants reason that the Orphans’ Court is also subjected to the rules applied to assumpsit, including Rule 1701 et seq., Pa.R.C.P., pertaining to class actions.

In the alternative appellants argue that if the Orphans’ Court, in ruling upon a challenge to a trust’s administration, is controlled by 20 Pa.C.S.A. § 761 and Orphans’ Court Rules 3.2, 3.4 and 3.5, which require a plaintiff to petition praying for citation, effecting denying class action status, then such court should refer the case to the Civil Division.

Equibank counters that the Probate Estates and Fiduciaries Code of 1972 (hereafter referred to as the Code) and 20 Pa.C.S. § 711(2) in particular require that the Orphans’ Court exercise jurisdiction over appellants’ complaint. Appellee relies on 42 Pa.C.S. § 952, which it argues, authorizes one division to transfer a case to another division, not to adopt another division’s rules. Next, it is argued that proceeding by complaint, instead of petition was improper under section 761 of the Code as no other procedure can adequately protect all parties. It notes that the class action procedure is not an end in itself but a mere procedural device.

Appellee argues that rules pertaining to class action cannot be assimilated to Orphans’ Court. Equibank suggests that Rule 1703, Pa.R.C.P. requires a complaint to commence a class action, whereas, the Code and Orphans’ Court Rules require an action to be commenced by petition. Equibank contends that the court could properly address the correctness of a class action on preliminary objections so long as issues of fact were not raised. Here the class action was struck because of various policy considerations not factual considerations.

The majority of Orphans’ Court sitting en banc found that a petition seeking a citation was the only means to institute such action in Orphans’ Court. After the fiduciary files an accounting and advertises the accounting its call for an audit is notice to all concerned. The court found such procedure followed by objections to the accounting and hearing thereon adequately protects all concerned. Therefore the court struck the complaint allowing twenty days for appellants to proceed by petition and citation. The majority found that those with interests in the common trust did not share a common interest. The various beneficiaries were entitled to distribution at different times; at one time a profit could be realized, at another a loss realized. The court concluded that to review every transaction in light of each individual interest would be a “practice ad infinitum.” Such class action was held to be against public policy in light of the procedure in existence in Orphans’ Court where anyone may raise objection to the audit. The court found the class actions allegations impertinent.

Judge Zavarella, dissenting, argued that without the class action and punitive damages claimed there “is nothing to proceed on . . . ”; and such determination could not be made on the basis of preliminary objections. He would have permitted the matter to be heard in the Civil Division where the issues of fact concerning the class action could be raised by answer.

Pennsylvania has not followed the requirement, adopted by the federal courts, that a class action be “superi- or to other available methods for the fair and efficient adjudication of the controversy.” Rule 23, Fed.R.Civ.P. See Explanatory Note to Rule 1701, Pa.R.C.P. This Commonwealth requires simply that the class action be “fair and efficient”. Samuels v. Smock, 54 Pa. Commonwealth Ct., 597, 600 n. 4, 422 A.2d 902, 903 n. 4 (1980). However, where the legislature has provided a specific statutory remedy, a class action may not be used to provide a different remedy. Lilian v. Commonwealth, 467 Pa. 15, 354 A.2d 250 (1976); see also Explanatory Note to Rule 1701, Pa.R.C.P. With the foregoing principles in mind we must agree with the court below, that the statutory provision bestowing jurisdiction over such trust contests in the Orphans’ Court provides the exclusive forum for such actions.

The legislature has given the Orphans’ Court “mandatory” jurisdiction over both testamentary trusts and inter vivos trusts. 20 Pa.C.S.A. § 711(1) and (2); Valley Forge Etc. v. Wash. Mem. Chapel, 493 Pa. 491, 426 A.2d 1123 (1981) (inter vivos trust); In re Estate of Croessant, 482 Pa. 188, 393 A.2d 443 (1978) (testamentary trust). Appellants’ claim that, Pennsylvania’s unified court system would permit the Civil Division to address the merits of this case, is not persuasive. Appellants refer us to the Judicial Code, Title 42 Pa.C.S. § 952, which statutorily recognizes that the Courts of Common Pleas may contain various divisions; each division vested with the full jurisdiction of the court. This section has been construed as providing, in a multi-division county (of which Philadelphia is one) for the transfer, between the respective divisions, of a cause of action brought in the wrong division instead of dismissing the action. Commonwealth v. Wadzinski, 485 Pa. 247, 401 A.2d 1129 (1978). This court in Durst v. Frick, 222 Pa.Superior Ct. 290, 292, 295 A.2d 125 (1972) explained the effect of the constitutional revision encompassed in § 952.

Orphans’ courts were abolished and their jurisdiction transferred to the common pleas courts by article 5 of the Constitution of Pennsylvania and its implementing Schedule, effective January 1,1969. Pa.Const. art. 5, § 1 et seq. Section 4 of the Schedule provides that in judicial districts having separate orphans’ courts the courts of common pleas shall “exercise the jurisdiction presently exercised by the separate orphans’ courts through their respective orphans’ court divisions.” Pa.Const. art. 5, § 4 [Many of the counties] are judicial districts which had separate orphans’ courts, and we interpret § 4 of the Schedule as preserving, in the present common pleas courts and orphans’ court divisions of those districts, the same jurisdictional distinctions as previously existed between the common pleas courts and the separate orphans’ courts.

Therefore, the lower court correctly found that appellants’ case should be heard in the Orphans’ Court as that court has exclusive jurisdiction over both testamentary and inter vivos trusts and therefore over an action seeking to surcharge a trustee of such a trust. Horner v. First Pennsylvania Banking and Trust Co., 412 Pa. 72, 194 A.2d 335 (1963). It still remains to be determined what is the proper means for bringing such an action in the Orphans’ Court.

The Orphans’ Court has all the powers of a chancery at its disposal to effect its decision. La Rocca Trust, 411 Pa. 633, 192 A.2d 409 (1963); In re: Pew Memorial Trust, No. 2, 5 D & C 3d 698. (1977). While the court abides by the rules of equity, its authority and procedure may be circumscribed by both the legislature and rules of the Supreme Court. Stinson’s Estate, 143 Pa.Superior Ct. 512, 18 A.2d 678 (1940); Lutz v. Village 2 at New Hope, Inc., 71 D & C 2d 595 (1973); See also, Rule 3, Pa.R. Orphans’ Court. The legislature has mandated that such proceedings in Orphans’ Court be commenced by a petition for issuance of a citation. 20 Pa.C.S. § 761; see also Hicks Estate, 414 Pa. 131, 199 A.2d 283 (1964); Righter Estate, 55 D & C 2nd 453 (1972). Furthermore, the Orphans’ Court when faced with a challenge to the administration of a trust, is authorized to direct the trustee to file an account. 20 Pa.C.S. § 762. Orphans’ Court Rules 6.1 et seq. provides for notice to all parties, objections to be raised to the account and confirmation of the account. Thus the lower court citing Real Estate Savings & Trust Co. v. Lewis, 340 Pa. 86, 88, 16 A.2d 13, 14 (1940), found that this procedure adequately protects all with interests in the trust. We agree.

Appellants’ proposal to proceed by class action in the Orphans’ Court would be in contravention of the legislature’s intent. We are constrained to find that a class action is inappropriate for proceedings before the Orphans’ Court Division.

II

Appellee contends that the striking of a claim for punitive damages pursuant to preliminary objections is not an appealable order as appellants are still in court. Such was the holding of our Supreme Court in Hudock v. Donegal Mut. Ins. Co., 438 Pa. 272, 264 A.2d 668 (1970) which is controlling in this appeal. That portion of this appeal addressing punitive damages must be quashed as it is from an interlocutory order.

Motion to Quash the balance of this appeal is denied.

The order is affirmed in part and the appeal is quashed in part. Appellant is to be granted allowance to file, within twenty (20) days, a petition for issuance of a citation. Case is remanded to the lower court for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.

CAVANAUGH and MONTEMURO, JJ., concur in the result.

      . Judge Ross wrote the majority opinion of the court; Judges Watson and Rahauser joined. Administrative Judge Zavarella filed a dissenting opinion and a supplemental opinion. Judge Schwartz also dissented.

      . Such a view appears to be too restrictive since involved here is a common trust in which each interest is indivisible from the whole. Appellee Bank, as a matter of administering the estate must by necessity calculate and allocate earnings and administrative expenses to each interest based on a period of time not on each investment transaction.


author: PRICE, Judge:

text:
    453 A.2d 655
    Robert DANKS and Linda Danks v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Dec. 10, 1982.

      David M. McCormick, Philadelphia, for appellant.
    Harold F. Kaufman, Philadelphia, for appellees.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   PRICE, Judge:

The instant appeal is from the order of April 9, 1980, entering judgment awarding appellees, Robert and Linda .Danks, costs, interest and counsel fees in the sum of $2,251.42 under the Pennsylvania No-Fault Motor Vehicle Insurance Act (“Act”). Appellant, the Government Employees Insurance Company, raises two issues on appeal. First, appellant maintains that the trial court erred in concluding that under § 1009.107(3) of the Act, when calculating attorney’s fees to be awarded, it had no discretion to determine whether the amount of time expended by appellees’ counsel was reasonable in relation to the case. Appellant also argues that, having such discretion, the court below erred in refusing to consider evidence of offers of settlement made by appellant in evaluating the reasonableness of the time expended by appellees’ attorney. We agree with appellant that in awarding attorney’s fees under the Act, the court must determine whether the time spent by counsel was appropriate to the case, but hold that appellant’s offers of settlement are not admissible on this issue.

Appellees were injured in an automobile accident on December 19, 1975. Counsel was retained and claims filed. Bills were submitted as medical expenses were incurred. Apparently, early in this process, appellees’ counsel improperly submitted two bills. Thereafter, appellees submitted only proper bills, which appellant admitted should have been paid. Appellant made payments on these medical bills from time to time, final payment having been made on April 12, 1977, after suit was instituted. Depositions of appellant’s employees were conducted on June 15, 1977, and arbitration held on October 26, 1977. An arbitration award was filed November 4, 1977, wherein the arbitrators found in favor of appellees in the amount of $39.57 for interest and $500 for attorney’s fees. Appellees appealed from this award, and a non-jury trial was held in March of 1980.

Section 1009.107(3) of the Act provides:
If in any action by a claimant to recover no fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based on actual time expended.

The trial court concluded that while the actions of appellant in failing to pay bills promptly were not willful or intentional, they were nonetheless “without reasonable foundation,” so that appellees were entitled to attorney’s fees under the Act. The court further determined that the hourly rate claimed by appellees’ attorney was reasonable. Neither of these conclusions is challenged on appeal. The court below also found, however, that “[u]pon proof of actual time expended, the court’s inquiry should be at an end.” We cannot agree with this interpretation of the statutory language. While the reasonableness of attorneys’ fees is a matter within the sound discretion of the trial judge, Re Trust Estate of LaRocca, 431 Pa. 542, 246 A.2d 337 (1968); Shearer v. Moore, 277 Pa. Superior Ct. 70, 419 A.2d 665 (1980), the court in exercising its discretion must evaluate the reasonableness of time spent by counsel in relation to the particular case.

The court below essentially concluded that by specifying that fees be “based on actual time expended,” the legislature removed from the court’s consideration any factors other than the reasonableness of the hourly fee claimed. We find, to the contrary, that the statutory language “a reasonable fee based on actual time expended” clearly mandates that the fee awarded be a reasonable one, taking all relevant factors into consideration, as well as that it be limited to a reasonable hourly rate for actual time expended.

The trial court supported its interpretation of ■ the language of the Act by noting that “the purpose of the Act. was to avoid litigation, rather than to proliferate it.” Although it is true that an evaluation of the hours expended by counsel must necessarily consume the court’s time, if the hours expended are not subject to scrutiny, it is evident that excessive litigation may, in fact, be encouraged. Although we agree with the court below that it is not the function of the court to second-guess counsel’s strategy, it is important that the hours claimed by counsel be reviewed to determine that the time actually spent was reasonably necessary and appropriate to the case. The courts of this state, in awarding attorney’s fees generally, have held that reimbursement must be for time appropriately spent by counsel on the particular case. See, e.g., Estate of Fraiman, 408 Pa. 442, 184 A.2d 494 (1962) (mere fact that attorney spent many hours on a case will not support a large award where some of the time spent was because of counsel’s inexperience).

In this case, appellant claims that a portion of the time reimbursed in the award of attorney’s fees was spent by counsel in attempting to collect fees to which appellees were not entitled. In evaluating the reasonableness of time expended by counsel, the court will, of course, take into consideration whether, and to what extent, counsel’s time was so employed.

Appellant maintains that its own offers of settlement should be admissible to show that the amount of time spent by appellees’ attorney on this case was unreasonable. We do not agree. It is generally the rule in civil litigation that offers of settlement or compromise of a disputed claim, not accepted, are not admissible in evidence. Rochester Machine Corporation v. Mulach Steel Corporation, 287 Pa. Superior Ct. 270, 430 A.2d 280 (1981); Durant v. McKelvey, 187 Pa. Superior Ct. 461, 144 A.2d 527 (1958). We are mindful of the fact that this rule has generally been employed to prevent the use of a rejected offer of settlement, against the party who made the offer, as an admission of liability for or the invalidity of a claim or its amount. We see no reason, however, to create an exception to the rule excluding such unaccepted offers from evidence for the type of situation presented in this case. We will not place the courts in the position of second-guessing counsel in hindsight as to whether he should have accepted an offer to compromise a claim. This type of evidence is not necessary to an accurate appraisal of time expended by appellees’ attorney.

Case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . 40 P.S. § 1009.101 et seq.

      . As the court below noted, the purpose of the Act is to establish a “system of prompt and adequate basic loss benefits.” 40 P.S. § 1009.102(b).

      . Commentators have addressed the problems inherent in employing a time standard alone to determine reasonable attorney’s fees. If time alone is to be the criterion “... economy of time may cease to be a virtue. Inexperience, inefficiency, even incompetence will be rewarded. Expeditious termination of litigation will be discouraged—to the great cost of all concerned, including the state.” Horn-stein, Legal Therapeutics: The “Salvage” Factor in Counsel Fee Awards, 69 Harv.L.Rev. 658, 660-61 (1956).
      Thus, although time expended by counsel is frequently considered in awarding attorney’s fees, even in the absence of statutory mandate, the courts have been careful to ascertain that the time expended was appropriate in the context of a particular case. See 57 A.L.R.3d 475, § 3.

      . In Woldow v. Dever, 374 Pa. 370, 97 A.2d 777 (1953), the court noted that the compromise offer complained of was introduced by the party who had made the offer, rather than the party who had rejected it. In that case, the court concluded that even if the admission of such testimony would ordinarily be deemed error, the plaintiffs were in no position to complain, as they had themselves introduced the subject of the settlement negotiations at trial, so that the defendant was entitled to introduce evidence of his version of the incident.


author: BROSKY, Judge:

text:
    453 A.2d 658
    Lydia MISCHENKO a/k/a Lydia Michenko v. Kenneth C. GOWTON, Dorothy D. Gowton, Hillcrest-Osborne, Inc., Richard E. Drake, Inc. Appeal of Dorothy D. GOWTON.
    Superior Court of Pennsylvania.
    Argued May 24, 1982.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Denied March 29, 1983.

      William L. Goldman, Doylestown, for appellant.
    Francis J. Sullivan, Fairless Hills, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

This appeal is from a dismissal of a petition to strike or open a default judgment. The issue before us is whether a lack of proper service, in the face of actual notice can excuse a failure to promptly file a petition to open. Although this issue was raised before it, the lower court failed to reach this argument. It appears this was due to the trial court not considering part of the contents of the record, namely the deposition. We reverse and remand for proceedings consistent with this opinion.

It is appellant’s contention that since she never received proper service of plaintiff/appellee’s complaint, the court lacked personal jurisdiction over her in the case, thus rendering the default judgment void. Because the judgment itself is a nullity, appellant argues further that a petition to open should be granted even though tardily filed. We agree.

The procedural history of this case is as follows. On July 10,1979, plaintiff/appellee filed a complaint against, among others, Dorothy Gowton. On August 27, 1979, the Sheriff served this complaint at the residence of Russell Gowton, Dorothy’s brother-in-law. In her petition to strike/open and in a deposition, appellant stated that Russell Gowton’s residence had never been hers nor did he have her power of attorney to receive process. Mrs. Gowton also stated in the deposition that about a month before the notice of default judgment, she received a copy of the complaint from persons unknown via uncertified, regular mail delivery. Default judgment was entered on September 11, 1979 and appellant acknowledged receiving notice of the default judgment shortly thereafter. On May 29, 1980, more than eight months after entry of default, appellant filed a petition to strike the default judgment, or, in the alternative, to open judgment. A deposition of defendant/appellee was taken on October 21, 1980 and filed on January 9, 1981. On June 30, 1981, the court below filed its opinion and order dismissing the petition to open/strike.

The trial court opinion of Judge Rufe states:
The defendant contends that the sheriff’s service of process was defective and, consequently, the court did not have jurisdiction over the defendant. However, this claim is based on facts dehors the record which cannot be considered in a petition to strike.

The statement above disregards the existence of Mrs. Gowton’s deposition of October 21. More than six months before the filing of the trial court opinion, the deposition was made part of the record. Included in this deposition are statements which could show a lack of proper service. Evidently, the trial court considered the deposition irrelevant as it stated: “In the present case, the record contains a complaint, a sheriff’s return of service and the entry of a default judgment, none of which is defective on its face.”

It would seem that the trial court had in mind the rule giving a sheriff’s return of service, which is full and complete on its face, conclusiveness and immunity from attack by extrinsic evidence. This is the rule in this Commonwealth. Vaughn v. Love, 324 Pa. 276, 188 A. 299 (1936). However, this rule does not extend to facts not within the personal knowledge of the sheriff—such as, in the case before us, whether or not the place at which he served process was Dorothy Gowton’s residence. In this regard, the Supreme Court has stated:

However, both logic and common sense restrict the conclusive nature of a sheriff’s return only to facts stated in the return of which the sheriff presumptively has personal knowledge, such as when and where the writ was served; when, in his official return, the sheriff states that he served a writ at a certain time and at a certain place, such facts are known to the sheriff personally and should be given conclusive effect. However, the immutability of a return should not extend (a) to facts stated in the return of which the sheriff cannot be expected to have personal knowledge and which are based upon information obtained through hearsay or statements made by third persons or (b) to conclusions based upon facts known to the sheriff only through statements made by others. When a sheriffs return states that a certain place is the residence or dwelling house of the defendant, such statement is not of a matter ordinarily within the personal knowledge of the sheriff but only a statement based upon that which he has been told by other persons, i.e., he had been instructed by a third person to make service at a certain place which he is told is the residence or dwelling house of the defendant.

Hollinger v. Hollinger, 416 Pa. 473 at 477-8, 206 A.2d 1 at 3 (1965) (emphasis in original).

Therefore, the testimony contained in the deposition regarding Dorothy Gowton’s non-residence at the place where process was served is not only on the record, it is also relevant and should have been considered by the court below. To disregard the deposition was error.

Once it is seen that a lack of service can be established under certain circumstances, the next determination to be made is the impact of a showing of such non-service in a petition to open context. The precise effect of a lack of service on a petition to open was treated in an opinion of this court.

The lower court correctly noted that, ordinarily, three factors must coalesce before a default judgment can be opened: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.” Where, as here, however, a defendant asserts that he was never served with the complaint and therefore had no notice of the proceedings against him, we believe that a court must determine whether such assertion is true before considering any other factors. If valid service has not been made and the defendant is wholly without notice of the proceedings against him, then the court has no personal jurisdiction over the defendant and is without power to enter a judgment against him. We have not hesitated to open judgments and give defendants an opportunity to file answers in cases where process was not properly served. Accordingly, we must inquire into the accuracy of appellant’s contention that it was never served.

Liquid Carbonic Corp. v. Cooper & Reese, 272 Pa.Super. 462 at 466-7, 416 A.2d 549 at 551 (1979) (citations omitted).

At first, the application of the rule stated in Liquid Carbonic to the case before us is somewhat uncertain. This uncertainty arises because, while Mrs. Gowton allegedly did not receive proper service, she also admittedly did receive actual notice. Three portions of the Liquid Carbonic segments quoted above will be examined.

First, “defendant asserts that he was never served with the complaint and therefore had no notice of the proceedings against him.” (Emphasis supplied.) The implication from this passage is that a lack of service results in a lack of notice. The second portion gives an opposite impression, however. “If valid service has not been made and the defendant is wholly without notice of the proceedings against him...” (Emphasis supplied.) Here, the impression given is that lack of service and lack of notice are two independent requirements.

Judge Hoffman’s use of the concept of notice in the above passages is made clearer by looking to an earlier opinion authored by him, Keystone Wire & Iron Works v. Van Cor, Inc., 245 Pa.Super. 537 at 541, 369 A.2d 758 at 760 (1976). “Thus, not only is service of process in accordance with the Rules of Civil Procedure necessary to give a party notice of the pendency of an action...” The manner in which the word notice is used in Keystone would appear to indicate that when that word is used in Liquid Carbonic it is not referring to actual notice but only to official notice. ■ If actual notice is not relevant, then Mrs. Gowton can benefit from Liquid Carbonic’s rule.

The same solution to this problem of interpretation is also indicated by the third passage in Liquid Carbonic which the presence of personal jurisdiction is made determinative in activating the special provision. “... then the court has no personal jurisdiction over the defendant and is without power to enter a judgment against him.”

If the absence of personal jurisdiction is the key to the applicability of Liquid Carbonic, then Mrs. Gowton is clearly within its reach. It is well settled that “jurisdiction of the court over the person of the defendant is dependent upon proper service having been made.” Neff v. Tribune Printing Co., 421 Pa. 122 at 124, 218 A.2d 756 at 757 (1966).

Further justification for allowing a judgment to be opened and an answer to be filed where service is lacking is provided by the basic rule that an action taken by a court without jurisdiction is a nullity. A petition to open a judgment which is said to be null and void should be granted where the facts to support that contention can be established. We come to the conclusion that where a defendant has actual notice, but lacks proper service, a petition to open should be granted even though it is not filed in a timely fashion.

Since the determination as to whether or not service of process was properly made upon Mrs. Gowton was not made by the court below, on appeal we cannot rule on this question. If, on remand, the court below determines that proper service was not made, the petition to open must be granted and leave given to file an answer.

We reverse and remand for proceedings consistent with this opinion. This court relinquishes jurisdiction.

WIEAND and BECK, JJ., concur in result.

      . This rule applies only in the absence of fraud.


author: CIRILLO, Judge:

text:
    453 A.2d 661
    Ernest STERN v. Jodie FEATHERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1982.
    Filed Dec. 10, 1982.

      Stanton D. Levenson, Pittsburgh, for appellant.
    Charles M. Means, Pittsburgh, for appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

On March 16, 1981, Ernest Stern confessed judgment against Jodie Feathers for possession of a leasehold held by Feathers in Pittsburgh. On March 24, 1981, Feathers petitioned for rule to open, strike or vacate judgment and stay execution. A rule to show cause was issued by the trial court on that date. Feathers admits that she was in arrears to Stern for rent owing on a property which she rented from Stern pursuant to a lease agreement. She contends, however, that the agreement was modified orally and that she was fulfilling her obligations as modified. The lower court held on June 4, 1981 that Feathers had presented the court no meritorious defense and, as such, it discharged the rule and vacated the stay by Order dated June 4, 1981. This appeal followed.

Our scope of review on appeal is very limited. We will only reverse a lower court’s decision not to open a judgment where that court abused its discretion. First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 438 A.2d 600 (1981). In Corson v. Corson’s Inc., 290 Pa.Super. 528, 434 A.2d 1269 (1981), we said:

Pa.R.C.P. 2959(e) now provides that “if evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment.” “Thus, a court can no longer weigh the evidence in support of the defense, but must only determine whether there is sufficient evidence to allow the issue to go to the (sic) the jury.” Wolgin v. Mickman, 233 Pa.Super. 218, 221-222, 335 A.2d 824, 826 (1976). “Otherwise stated, the judgment should be opened where the evidence produced would be sufficient to prevent a directed verdict against [appellee].” Greenwood v. Kadoich, supra, 239 Pa.Super. [372] at 375, 357 A.2d [604] at 606.
The issue for our determination, therefore, is whether appellee has produced evidence sufficient to prevent a directed verdict from being granted against it.

Essentially, Feathers contends that in August of 1980 she and Stern agreed that she would pay her rent arrearages by specified installments. She asserts further that she paid Stern according to their agreed upon plan until December of 1980. The trial court held that the modification lacked specificity as to its terms and therefore that the modification was not proven. Thus, no issue of fact was required to be sent to the jury.

Appellant asserts that the following terms constituted a new agreement or modification of the existing written lease:

Appellant: Mr. Treidel (appellee’s agent) told me that I had to show that I was attempting to pay off the balance.... So long as I showed that I was making an attempt, there would be no problem.

We disagree and find her contentions without merit.

In New Eureka Amusement Co. v. Rosinsky, 126 Pa.Super. 444, 191 A. 412 (1937), in which the facts are strikingly similar to those at bar, the court said:

The main basis of lessee’s right of action is that by virtue of the lessor’s promises, a new agreement was substituted for the original lease. To establish such an agreement, the proof must be such as would amount to a novation. What constitutes a novation, we have recently discussed in Le Bar v. Patterson, 123 Pa.Superior Ct. 491, 187 A. 278. In every novation there are four essential requisites: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, (4) the validity of the new one; and the burden is upon one who alleges a novation to establish it by proper proof.
It is clear that at the meeting of the parties held in January, 1934 no definite agreement was made by the lessor to waive any of his rights under the lease; nor does the testimony of what occurred at the meeting held in February rise any higher.... In Knight v. Gulf Refining Co., 311 Pa. 357, 166 A. 880 (1933), Chief Justice said: “The existence of an oral contract changing the terms of a prior written one must be clearly and positively shown. Its terms must appear definitely from the evidence. The acts of the parties, their conduct and the circumstances and relations existing between them, are all elements to be given due consideration in determining both the existence and terms of such an agreement.”

Here, as in New Eureka, appellee continually demanded payment in full and, further, the alleged agreement fails to set forth the amount of revised payments or the period of time over which the arrearages were to be satisfied. For these reasons, we agree with the lower court that appellant has failed to raise a meritorious defense as required by Pa.R.C.P. 2959.

Since we find that the trial court has not abused its discretion in this regard, its findings should not be disturbed on appeal. First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 483 A.2d 600 (1981).

Not only does a reversal based upon the instant case eradicate the efficacy of a confession of judgment provision in a commercial setting, but it could also discourage negotiations or compromises by lessors for fear that their actions might be construed as a waiver or relinquishment of a right or remedy. Accordingly, we affirm the decision of the lower court.

Order affirmed.


author: BECK, Judge:

text:
    453 A.2d 663
    COMMONWEALTH of Pennsylvania v. John KEIFER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 3, 1982.
    Filed Dec. 10, 1982.
    Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   BECK, Judge:

Appellant, John W. Keifer, III, pled guilty to criminal attempt (rape), unlawful restraint, recklessly endangering another person, and corruption of a minor. He was sentenced to two to five years incarceration for criminal attempt and to a consecutive term of five years probation for unlawful restraint. Sentence was suspended on the other charges. A petition for reconsideration of sentence was timely filed and denied.

We vacate judgment of sentence and remand for resentencing because the sentencing judge failed to adequately articulate in the record his reasons for the sentence imposed. In Commonwealth v. Russo, 297 Pa.Super. 424, 429 n. 3, 444 A.2d 105, 107 n. 3 (1982) quoting Commonwealth v. Kraft, 294 Pa.Super. 599, 605, 440 A.2d 627, 630 (1982), this Court explained the theory underlying the foregoing disposition:

The policy behind requiring the sentencing judge to disclose in open court the reasons for the sentence is to make public “the thought process by which he arrives at a particular appropriate sentence.” Commonwealth v. O’Brien, 282 Pa.Super. 193, 196, 422 A.2d 894, 895 (1980). It is a safeguard against arbitrary decisions and prevents consideration of improper and irrelevant factors. It provides the appellate court with a basis on which to understand and review the sentencing court’s decision. The judge’s thought process should demonstrate that he or she reflected upon the standards established in the Sentencing Code.

(Footnote omitted.)

The sentencing judge focused upon the gravity of the crimes, and we note our complete agreement with his characterization of “the serious and violent nature of the crimes involved.” (Lower court opinion at 3.) In imposing this sentence of total confinement, however, the sentencing judge failed to consider on the record factors relating to appellant’s character. As this Court stated in Commonwealth v. Wicks, 265 Pa.Super. 305, 310-311, 401 A.2d 1223, 1225 (1979):

The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and rehabilitative needs of the defendant. See The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S. § 1321(b) (Supp.1977); Commonwealth v. Knight, [479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Riggins [474 Pa. 115, 377 A.2d 140 (1977)].

And the Russo court emphasized the importance of “a reasoned weighing” of the criteria enunciated in the Sentencing Code:

While it is clear that the record need not reflect mention by the sentencing judge of the specific language of the Sentencing Code, the statement of the court must reflect a reasoned weighing of the factors stated therein, The sentencing judge in this case failed adequately to consider the above factors that are relevant to the defendant. He did cite the fact that appellant was a first offender,[] but otherwise neglected to discuss the absence or presence in her case of the other criteria. Without a meaningful balancing process clearly setting forth the considerations, of the sentencing judge that led him to conclude that a period of total confinement was in order, we are at a loss thoughtfully to evaluate his decision.

Id., 297 Pa. Superior Ct. at 429, 444 A.2d at 107 (footnote omitted).

Accordingly, we vacate judgment of sentence and remand for resentencing.

      . The deficiency of the record below is not controverted by the District Attorney of Montgomery County, and that office requests in its brief that the relief sought by appellant be granted.

      . We note additionally that the sentencing judge in the instant case did mention in his opinion supporting judgment of sentence that appellant had no prior record. The absence of a prior criminal record is a factor to be considered in evaluating whether probation is an appropriate disposition. 42 Pa.C.S. § 9722(7).


author: JOHNSON, Judge: HESTER, Judge,

text:
    453 A.2d 664
    In re ADOPTION OF D.M.L. and F.W.Z. Appeal of J.Z.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed Dec. 10, 1982.

      J. William Hook, Waynesburg, for appellant.
    R. Wallace Maxwell, Waynesburg, submitted a brief on behalf of Child. Youth Services, participating party.
    John W. Hardisty, Washington, for Lavigne, participating party.
    Robert D. Berryman, Harrisburg, for Zimmerman, participating party.
    Before HESTER, McEWEN and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, J.Z., the natural father of D.M.L. and F.W.Z., appeals from the Order of the trial court terminating his parental rights to these children.

D.M.L. was born on February 5, 1975 to Appellant and I.L., who was married to her previous husband at that time. D.M.L. was adjudicated as deprived after a hearing on September 3,1976 and placed in the custody of Children and Youth Services of Greene County (CYS). On February 24, 1978, F.W.Z. was born to I.L. and Appellant. F.W.Z. was adjudicated dependent after a hearing on September 28, 1979 and also placed in the custody of CYS.

On July 30, 1980 petitions for involuntary termination of Appellant’s parental rights were filed by CYS. At this time, I.L., the natural mother, also signed a petition to voluntarily terminate her rights to the children. Following hearings on September 2 and 29, 1980, the trial court issued an opinion and order on January 23, 1981, terminating Appellant’s rights to both children. After the filing and denial of exceptions, the trial court filed an opinion and issued a final order on September 18, 1981. This appeal followed.

Three issues were raised by Appellant, namely: (1) whether CYS has sustained its burden of proof to justify termination; (2) whether it was proper for the trial court to make reference in its opinion, and consider as evidence, Appellant’s failure to comply with a goal plan, which is not a fact of record, and (3) whether CYS’ conduct thwarted Appellant’s attempt to perform his parental duties and caused Appellant’s children to be without essential parental care, control or subsistence.

After the filing of the instant appeal, but prior to argument, the U.S. Supreme Court determined, in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), that the due process clause of the Fourteenth Amendment to the U.S. Constitution requires that the standard of proof in involuntary termination proceedings must be at least clear and convincing evidence. The standard in Pennsylvania at the time of these proceedings in the trial court was preponderance of the evidence. See, e.g., In re Adoption of M.M., 492 Pa. 457, 460-61, 424 A.2d 1280, 1282 (1981); In the Interest of T.S.L., 487 Pa. 245, 248, 409 A.2d 332, 334 (1979); cf. Appeal of G.J.A., 304 Pa.Super. 21, 26 n. 4, 450 A.2d 80, 83 n. 4 (1982).

We note that, although neither of the opinions filed by the trial court refer to the standard of proof applied by it in these proceedings, the Appellant, citing In re D.J.Y., 487 Pa. 125, 130, 408 A.2d 1387, 1389 (1979), proceeded in the belief that “[a] party must establish the statutory requirement for involuntary termination by a preponderance of the evidence.” (Appellant’s Brief, p. 11, emphasis added).

Where, as here, the law concerning the standard of proof in involuntary termination proceedings changes, a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occur before the judgment becomes final. August v. Stasak, 492 Pa. 550, 554-55, 424 A.2d 1328, 1330-31 (1981); accord, Commonwealth v. Brown, 494 Pa. 380, 383, 431 A.2d 905, 906-07 (1981).

Although we intend no criticism of President Judge TOOTHMAN’s well-reasoned opinion in support of his determination to terminate Appellant’s parental rights, and while our review of the record might cause us to agree with the distinguished trial judge, we are mindful that our review is limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. Woodby v. Immigration Service, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362, 367 (1966). As the Santosky court has observed, we are not free to treat appellate review as a curative for an inadequate burden of proof. Santosky v. Kramer, 455 U.S. at 757 n. 9, 102 S.Ct. at 1396 n. 9, 71 L.Ed.2d at 609 n. 9.

Finally, we are guided by the words of Justice BLACK-MUN, speaking for the majority in Santosky, wherein he stated:

Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.

Id. at 757, 102 S.Ct. at 1396, 71 L.Ed.2d at 609.

Given the fundamental liberty interest of a natural parent in the care, custody and management of his, or her, child, and in light of the increased risk of error which may have existed in this case under a standard of proof lower than mandated by Santosky, see Lassiter v. Department of Social Services, 452 U.S. 18, 27-31, 101 S.Ct. 2153, 2167-2170, 68 L.Ed.2d 640, 649-652 (1981), we must conclude that this case must be remanded to the trial court with instructions to reconsider the case in the light of Santosky. Upon rehearing, the court shall be guided by a requirement that clear and convincing evidence that grounds for termination exist. Appeal of G.J.A., 304 Pa.Super. 21, 27, 450 A.2d 80, 83 (1982).

Order vacated. Case remanded for reconsideration in accordance with this opinion. Jurisdiction is not retained.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. A review of the record leads to the inescapable conclusion that the application of the standard of proof set forth in Santosky, supra, to the facts of this case, mandates that appellant’s parental rights to both children be terminated.

In view of the appellant father’s uninterrupted failure to provide the bare, minimum requirements for the support of his children; his failure to visit; his neglect; his complete lack of natural love and affection for those children, imposes upon this court the responsibility of providing the children with an opportunity to lead a normal existence. The best interests of the children mandate this action.

D.M.L. is now 7V2 years old. She has not lived with appellant since September 3,1976. F.W.Z. is 4V2 and has not resided with appellant since September 28, 1979. The children were removed from their parents’ custody due to inadequate living conditions and in F.W.L.’s case, inadequate medical care. Their parents are now divorced. Their mother has remarried and consents to the termination of her parental rights to the children.

Appellant has failed to support the children since their separation from him. His isolated attempts to visit them have been half-hearted and clearly insufficient to sustain his position as their father. His current residence is in need of substantial rehabilitation; the housekeeping standards are poor; there is a lack of running water as well as heat; appellant has a serious drinking problem.

Appellant is a stranger to his children. As demonstrated by the Pennsylvania Supreme Court in Ellerbe v. Hooks, 490 Pa. 363, 2116 A.2d 512 (1980), the psychological best interests of the children is a matter of paramount concern.

The evidence presented was more than adequate to warrant the termination of appellant’s rights. As the Pennsylvania Supreme Court stated in: In re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977):

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance. In re Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1976); In re Adoption of Mahlon Nichelle McCray, [460 Pa. 210, 331 A.2d 652] supra; Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974); In re Smith's Adoption, 412 Pa. 501, 194 A.2d 919 (1963). This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. In re Adoption of Mahlon Nichelle McCray, supra; In re Adoption of Jagodzinski, 444 Pa. 511, 281 A.2d 868 (1971). Because a child needs more than a benefactor, parental duty requires that a parent “exert himself to take and maintain a place of importance in the child’s life.” Appeal of Diane B., supra, 456 Pa. at 433, 321 A.2d at 620, quoting In Re: Adoption of J.R.F., 27 Somerset L.J. 298, 304-05 (Pa.C.P.1972).

The appellant has not been a parent to his children. The Children and Youth Services was compelled to remove the children from their parents’ custody.

I repeat, the record in this appeal demonstrates that the evidence more than meets the standards outlined in Santosky v. Kramer, supra.

I would, therefore, affirm the findings and order of Judge Toothman of the court below.


author: MONTEMURO, Judge: CAVANAUGH, Judge,

text:
    453 A.2d 668
    COMMONWEALTH of Pennsylvania v. Alastair Boyd KYLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1982.
    Filed Dec. 10, 1982.

      Alastair B. Kyle, appellant, in pro. per.
    Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant, in this pro se appeal, asks us to reverse the order of the court below because he earns Six Hundred Fifty Dollars ($650) a week, and therefore requiring him to spend his valuable time in court violates his due process rights under the Fourteenth Amendment of the United States Constitution. That having been said, one would expect the next sentence to read: “[W]e find no merit in appellant’s claim and therefore affirm the order of the lower court.” Unfortunately, and somewhat sadly, we are compelled to reverse the lower court because of procedural irregularities upon which this court has spoken many, many times.

Appellant was found guilty by a District Justice for failing to stop at a stop sign. He took an appeal de novo to Common Pleas Court. He arrived at court at 9:00 A.M., on October 3, 1980, the date of the hearing. After waiting for one and a half hours, he was informed by the assistant district attorney that his case would not commence until 1:30 P.M. He left the courtroom and subsequently that day filed a Motion to Dismiss or in the alternative for a Continuance. In his Motion to Dismiss, he argued that the charges should be dismissed because requiring him to wait in court at such a great personal expense effectively abridged various constitutional guarantees. The lower court judge sidestepped the issue and granted a Continuance until November 21, 1980. Appellant failed to appear at that hearing.

Appellant now repeats the argument in his Motion to Dismiss on appeal. However, we cannot reach the merits. The transcript of the November 21, 1980, proceedings reads as follows:

MR. LACKS: The first matter we have is the Commonwealth v. Alastair Kyle, Miscellaneous 111 of 1980. The defendant failed to appear for the Summary Hearing.
We would ask that the appeal be dismissed.
THE COURT: Dismiss it.

The action of the lower court dismissing the appeal was improper. “This court has repeatedly held that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either ‘guilty’ or ‘not guilty.’ ” Commonwealth v. Gula, 300 Pa.Super. 445, 446 A.2d 938 (1982), citing Commonwealth v. Carter, 230 Pa.Super. 401, 326 A.2d 530 (1974); see also Commonwealth v. Gamarino, 299 Pa.Super. 144, 445 A.2d 189 (1982).

Normally, this defect alone would compel a remand for the entry of a proper verdict followed by appropriate post-trial motions in accordance with Pa.R.Crim.P. 1123. Commonwealth v. Gula, supra; Commonwealth v. Koch, 288 Pa.Super. 290, 293, 431 A.2d 1052, 1053 (1981). However, in the present case there is an additional ERROR. The trial judge compounded the problem by “dismissing” the de novo appeal without taking any testimony concerning the facts of the case.

The pertinent section of Pa.R.Crim.P. 1117 reads as follows:

a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict. (Emphasis added).

In the instant case, not only was there an improper verdict, but there was no determination of the facts of the offense. The trial court, even if empowered to proceed without a defendant, must determine the facts and render a verdict. Since this was not done, we are constrained to remand for a new trial.

Accordingly, Order is reversed and we remand for proceedings consistent with this opinion. This court does not retain jurisdiction.

CAVANAUGH, J., files dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I dissent because the result reached by the majority is not warranted by the law and will result in a needless burden to our already overburdened trial courts.

The appellant, Alastair Boyd Kyle, was convicted of a summary offense before a district justice for failing to stop at a stop sign. A fine of fifteen dollars was imposed. Mr. Kyle appealed his conviction to the Court of Common Pleas. A hearing was scheduled in the court below for October 3, 1980 and the appellant appeared in court. He filed a Motion to Dismiss the appeal and a Motion for Continuance. The court below continued the case until November 21, 1980 and the appellant, the defendant in the court below, did not appear for the scheduled hearing. The court below thereupon dismissed the appeal and Mr. Kyle appealed to this court.

The majority reverses on the basis that the court below erred in not taking testimony in the court below and further in not entering a judgment of guilty or not guilty following the taking of testimony. The majority relies on Commonwealth v. Carter, 230 Pa.Super. 401, 326 A.2d 530 (1974) which held that where an appeal is taken from a summary conviction after a hearing de novo, it is error to merely dismiss the appeal rather than entering a judgment of guilty or not guilty. The majority also relies on Commonwealth v. Gula, 300 Pa.Super. 445, 446 A.2d 938 (1982). In that case an appeal was taken from a summary conviction for violation of the Vehicle Code. Again, after a hearing de novo, the court merely dismissed the appeal. This court held that an order dismissing the appeal is not enough. “Furthermore, an order adjudicating guilt must be entered, even though it is implicit in the lower court’s actions and opinion that the court considered the evidence supportive of a finding of guilt.” See Gula, supra, slip opinion. This court remanded the case and directed the court below to enter a finding of guilty or not guilty.

In both Carter and Gula the court below heard the appeal de novo and proceeded to hear evidence pertaining to the defendant’s guilt or innocence and after doing so should have entered a judgment of guilty or not guilty. The instant case was not heard de novo. The appellant did not appear in court when his case was called and after the continuance was granted at his request did nothing to pursue his right on appeal. Since he did not see fit to appear at trial there is no obligation on the court to proceed to trial in the defendant’s absence. The majority opinion overlooks the fact that the appellant stands convicted of a summary offense. In the absence of pursuing his appeal his conviction stands. In both Carter and Gula, at the end of the trial de novo a verdict should have been’entered.

The majority would require the totally futile act of having a trial following a summary conviction, in every case where the defendant appeals to the courts of common pleas but does not deign to attend his trial, notwithstanding his demand for a trial implicit in his appeal. This would require a blatant waste of judicial manpower.

The majority cites Pa.R.Crim.P. 1117 which grants the defendant the right to be present at any stage of the proceedings. The rule further states:

a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict. (Emphasis added).

The majority erroneously interprets this rule to read that in an appeal from a summary conviction by the defendant that the court shall proceed with a trial even where the defendant does not appear at the trial. The majority opinion ignores Commonwealth v. Smith, 237 Pa.Super. 506, 352 A.2d 90 (1975) which directly controls .this case. In Smith the defendant was summarily convicted of a violation of the Vehicle Code and appealed to the court of common pleas. She requested that the case be continued and it was. She then failed to appear at the postponed hearing and the appeal was dismissed. On appeal to this court the appellant contended that the Commonwealth should have presented its case notwithstanding the failure of the defendant to appear. This contention was rejected. The court also quoted Pa.R. Crim.P. 1117, relied on by the majority in our case, and stated at 237 Pa.Super. 509, 352 A.2d 91:

While this Rule does not preclude proceeding with trial in the Defendant’s absence, it does not require it and when as in this case the Defendant absents herself without cause the Court in its discretion is warranted in dismissing the appeal. (Emphasis added)

The majority states in footnote 3: “The dissent relies on Commonwealth v. Smith, 237 Pa.Super. 506, 352 A.2d 90 (1975).... Admittedly, the facts in Smith, supra, and in the instant case are the same. However, we believe that the interpretation placed upon Rule 1117 in the Smith case, as applied to summary offenses, has been effectively overruled by this court’s en banc decision in Commonwealth v. Koch, supra.

Commonwealth v. Koch, supra (opinion by Cercone, P.J., concurring opinion by Price, J., in which Cavanaugh, J. joined) involved a trial de novo in the court of common pleas following an appeal from a summary conviction. The main issue in Koch dealt with Pa.R.Crim.P. 1123 which provides that written motions for new trial and in arrest of judgment shall be filed within ten days after a finding of guilty, and whether the rule applies to appeals from summary convictions.

I do not believe that this court in Commonwealth v. Koch, even though sitting en banc, has “effectively overruled” the decision in Commonwealth v. Smith, which it did not discuss and which did not involve the same issues. The en banc court in Commonwealth v. Koch apparently did not perceive any conflict with Commonwealth v. Smith and as far as I am concerned, none exists.

I would affirm the order of the court below.

      . 75 Pa.C.S.A. § 3323.

      . Because the trial court dismissed the case without receiving testimony supporting a verdict, the reasons for appellant’s absence are irrelevant.

      . The dissent relies on the case of Commonwealth v. Smith, 237 Pa.Super. 506, 352 A.2d 90 (1975), which interpreted Pa.R.Crim.P. 1117 to mean that a trial de novo is not required in an appeal to the Court of Common Pleas from a summary conviction where the defendant is absent. In other words, an appeal from a summary conviction could be dismissed without violating Rule 1117 if a defendant fails to appear for the scheduled trial de novo. This interpretation obviates the necessity of requiring the Commonwealth to proceed with its case and establish facts on the record upon which the common pleas judge would render a verdict of guilty or not guilty. Admittedly, the facts in Smith, supra, and in the instant case are the same. However, we believe that the interpretation placed upon Rule 1117 in the Smith case, as applied to summary offenses, has been effectively overruled by this court’s en banc decision in Commonwealth v. Koch, supra. In Koch, it was held that the rules of criminal procedure apply with the same force and effect to the trial de novo:

      Rule 67 which establishes the procedure for perfecting an “appeal” to the Court of Common Pleas for a trial de novo is, in reality, a retrial of the case as if the prior summary proceeding had not occurred ...
      Summary violations are by definition, minor offenses, punishable most often, only by a fine. They justifiably should be summarily handled and the purpose and goal of the rules governing such proceedings is prompt adjudication before the issuing authority. Commonwealth v. Wadzinski, 239 Pa.Super. 76, 361 A.2d 790 (1976). However, once an appeal is taken to the Court of Common Pleas, this goal is clearly abrogated, and thereafter, all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable. Id., 288 Pa.Superior Ct. at 294, 431 A.2d at 1054. (Emphasis added—footnotes omitted)
      It is clear then that Rule 1117 cannot be given one interpretation for summary offenses and another for felonies or misdemeanors. It must be given a consistent interpretation. It could not be seriously contended that an absent defendant, charged with a felony or a misdemeanor, could be convicted without the Commonwealth first presenting testimony and establishing its case on the record. Obviously, due process requires a hearing. We believe that under Koch this requirement must apply also to the trial de novo for a summary offense. Rule 1117 means exactly what it says and no more:
      The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict.

      . Appellant’s motion to dismiss in the lower court was based on the fact that his time was too valuable to spend in court as he earned $650 per day which would be lost if he had to appear in court in connection with a $15.00 traffic fine. He raises the same issue on appeal. This argument is patently without merit as it was the appellant who decided to appeal his conviction to the court of common pleas and it was he who desired “his day in court”. He cannot now complain that his day in court requires that he be present in court.

      . Commonwealth v. Gula, supra, cites Commonwealth v. Gamarino, 299 Pa.Super. 144, 445 A.2d 189 (1980) where the trial court sustained an appeal following a de novo trial in the court of common pleas.

      . In Commonwealth v. Koch the Court stated at 288 Pa.Super. 295, 431 A.2d 1055: “The purpose of such motions [new trial and in arrest of judgment] is two-fold: (1) to afford the trial court, in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review... With respect to this policy, there is no basis from which to draw a distinction between and among appeals taken to our court from felony, misdemeanor or summary convictions.” (Emphasis added)